What's new on the Delta?

by Holly Doremus

April 22, 2009

This item is cross-posted by permission from Legal Planet.

Quite a bit, and most of the news is bad.

American Rivers has declared the Sacramento-San Joaquin the most endangered river in the United States.

The longfin smelt has been listed as threatened by the state, but it is not going to be federally listed, at least not yet.

Commercial salmon fishing off the California coast is one step closer to being formally closed for 2009.

And while late rains have increased water supplies, some farmers are still slated to get little or no water this summer.

* The American Rivers report listing the Sacramento-San Joaquin as the nation’s “most endangered” river has garnered substantial media attention. The report cites the need to overhaul both water and flood management systems. As Matt Weiser pointed out in the Sacramento Bee, that’s no surprise to locals, but there is apparently hope in several quarter that the national attention will increase pressure to take action.

* The US FWS has declined to list the longfin smelt population in the Bay-Delta as endangered or threatened under the ESA. FWS found that the Bay-Delta population did not qualify as a Distinct Population Segment meriting listing on its own. Last month, by contrast, the California Fish and Game Commission voted to list the longfin smelt as a threatened species under the California ESA. Those two decisions are not necessarily inconsistent, since the California version looks only to the status of the population in California. The federal decision is troubling, however, because of its remarkably restrictive approach to the Distinct Population Segment question. Essentially, the feds said that because a handful of longfin smelt were found in Humboldt Bay, the Klamath River, and the Russion River ten years ago, and there was no evidence that those smelt were genetically distinct from those in the Bay, they could not find the Bay population to be a Distinct Population Segment. That calls for a level of proof that will almost never be available. Throwing a small bone to environmental interests, FWS announced that it was initiating a rangewide assessment of the smelt’s status.

* The Pacific Fisheries Management Council has recommended that there be no commercial salmon fishing season off the coast of California for the second year in a row because of low expected fall chinook returns to the Sacramento River. A 10-day recreational season will be allowed. The Council’s recommendation needs the approval of NMFS before it takes effect, but there is no reason to doubt that approval will be forthcoming.

* The Bureau of Reclamation, not surprisingly, expects a critically dry year. Its latest water allocation forecast for the Central Valley Project calls for a wide range of expected deliveries, highlighting the effect of the seniority system applied to water in the west. The median forecast (the forecast that is thought to have an equal chance of being too optimistic or too pessimistic) has deliveries pegged at 15% for the more junior agricultural contractors, while those holding senior water rights are likely to get their full allocation. NRDC’s Doug Obegi explains more about that distinction and how much water is likely to be delivered to CVP customers.

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Holly Doremus is James H. House and Hiram H. Hurd Professor of Environmental Regulation; Faculty Co-Director, Center for Law, Energy & the Environment; and Director, Environmental Law Program at the University of California, Berkeley.

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