Fishing groups, Winnemem Wintu sue state and feds over take permit for State Water Project
The lawsuit was filed at a time when Central Valley salmon and Delta fish populations are in their worst-ever crisis.
As imperiled Central Valley salmon and Delta fish populations move closer and closer to the abyss of extinction, the California Sportfishing Protection Alliance (CSPA) has sued the California Department of Water Resources (DWR) and the California Department of Fish and Wildlife (CDFW) over the “Incidental Take Permit” (ITP) for the operation of the State Water Project.
CSPA is joined in the lawsuit, filed on Nov. 26, 2024, by the North Coast Rivers Alliance, the San Francisco Crab Boat Owners Association and the Winnemem Wintu Tribe. The Law Offices of Stephan C. Volker filed the suit in the Sacramento Superior Court on behalf of CSPA and fellow plaintiffs.
The lawsuit alleges violations of the law under the California Environmental Quality Act, Public Resources Code section 21000; the Delta Reform Act, Water Code section 85000, the California Endangered Species Act , Fish and Game Code section 2050, and the Public Trust Doctrine.
“In simple terms, CSPA sued DWR over the Final Environmental Impact Report (FEIR) for its inadequate analysis in support of the ITP. CSPA sued DFW over the failure of the ITP itself to protect threatened and endangered fish, as well as for other failures of law,” according to the CSPA in a statement.
An ITP is the state equivalent under the California Endangered Species Act (CESA) and has a function similar to a “biological opinion” under the federal Endangered Species Act, CSPA noted.
The Petition and Complaint reveals in 69 very readable pages what is wrong with the FEIR and the ITP — their reliance on Governor Gavin Newsom’s controversial “Voluntary Agreement” and their failure to analyze and place conditions on the operation of Oroville Reservoir.
“One of the most easily understandable defects of the FEIR and the ITP is that they rely on the grossly inadequate flows of the proposed ‘Voluntary Agreement’ in place of the State Water Board’s proposed update of the Bay-Delta Plan. DWR and DFW treat the Voluntary Agreement as a done deal and build the ITP structure on top of its flimsy foundation,” CSPA wrote. (For further discussion, see CSPA’s January 2024 comments on the Bay-Delta Plan and the Voluntary Agreement.)
“A second clear defect is the failure of the FEIR and ITP to analyze and place conditions on the operation of Oroville Reservoir, the State Water Project’s largest water storage facility and the second largest reservoir in California DWR and DFW trot out the rusty refrain that DWR has no plans to change the operation of Oroville, so there’s nothing to analyze,” the group stated.
“However, there are no explicit regulatory rules that constrain Oroville’s water supply operations for the protection of CESA-listed fish, in any venue. DWR could change its operating rules for Oroville, with no environmental review, at any time,” CSPA concluded.
The lawsuit was filed at a time when Central Valley salmon and Delta fish populations are in their worst-ever crisis, as the complaint documents. The complaint notes that the Sacramento perch, once one of the most abundant fish in the Delta, has already become extinct in its native habitat. The following two paragraphs of the complaint (paragraphs 47 and 48, pages 14 and 15) are two of the most succinct statements I’ve ever seen documenting the collapse of the Delta ecosystem and its principal causes:
“The Delta’s imminent ecologic collapse is well-recognized and indisputable. It has two 2 principal causes. First, an unsustainable proportion of the Delta’s freshwater flows has been diverted for decades by the Central Valley Project (“CVP”) and the State Water Project (“SWP”). Second, for too long, agricultural diverters have discharged subsurface drainage and surface run-off contaminated with salt, selenium, and other toxic substances into groundwater and the rivers that are tributary to the Delta.”
“This one-two punch of diminished freshwater flows and increased temperature, salinity, herbicides, pesticides, and heavy metals has pushed the Delta to the brink of ecologic collapse. Due to excessive diversions of water for consumptive use, many species of fish endemic to the Delta have already gone extinct, including the Sacramento perch, formerly one of the most abundant fishes of the Delta, which disappeared in the 1970s. Just 12 indigenous species remain, and these are in grave danger. Since the SWP and CVP began operation, the Sacramento River winter and spring run Chinook salmon, Central Valley steelhead, North American green sturgeon, White sturgeon, Longfin smelt and Delta smelt have been driven perilously close to extirpation.”
The lawsuit also follows the closure of ocean and river salmon fishing seasons in California for the past two years, due to the collapse of Sacramento River and Klamath River fall-run Chinook salmon populations. The Sacramento River fall-run Chinook salmon population has been the driver of West Coast ocean salmon fisheries for decades. However, record low returns of salmon to Coleman National Fish Hatchery, largely due to failed state and federal water policies, have resulted in the fishery disaster.
Meanwhile, endangered winter and spring-Chinook salmon populations are moving closer and closer to extinction. Spawner escapement of endangered Sacramento River Winter Chinook (SRWC) in 2023 was estimated to be only 2,447 adults and 54 jacks, according to Pacific Fishery Management Council data.
Butte Creek, once the stronghold of spring-run Chinook, saw a record low 100 fish return to spawn last year and an even lower number of fish this year. Only 51 spring Chinooks were reported in the Butte Creek snorkel count and “probably less than 25” in the carcass count in 2024, according to Allen Harthorn, executive director of Friends of Butte Creek.
The total number of salmon returning to the Sacramento and Klamath rivers and their tributaries this year won’t be made public until the data is posted on the Pacific Fishery Management Council’s website in late February 2025 and released in a yet-to-be announced CDFW salmon fishery information meeting in preparation for the crafting of salmon seasons in March and April.
The Delta Smelt, an indicator species that was once the most abundant fish in the Sacramento-San Joaquin River Delta, is virtually extinct in the wild, due to massive water exports to agribusiness and other factors, including invasive species, toxics and pollution, over the past several decades. Zero smelt have been caught over the past six years in the California Department of Fish and Wildlife’s Midwater Trawl Survey.
Then in the summer of 2024 a weekly survey by the US Fish and Wildlife Service targeting Delta smelt caught only one smelt, despite the stocking of thousands of hatchery-raised smelt by the state and federal governments over the past few years. “A late April IEP juvenile fish survey (the 20-mm Survey) caught several juvenile Delta smelt in the same area,” noted fishery scientist Tom Cannon in his blog on the California Sportfishing Protection Alliance website: calsport.org/..
Meanwhile, the other pelagic species collected in the survey — striped bass, longfin smelt, Sacramento splittail and threadfin shad — continued their dramatic decline since 1967 when the State Water Project went into effect. Only the American shad shows a less precipitous decline.
Between 1967 and 2020, the state’s Fall Midwater Trawl abundance indices for striped bass, Delta smelt, longfin smelt, American shad, splittail and threadfin shad have declined by 99.7, 100, 99.96, 67.9, 100, and 95%, respectively, according to the California Sportfishing Protection Alliance.
The graphs in this CDFW memo graphically illustrate how dramatic the declines in fish populations have been over the years: nrm.dfg.ca.gov/…
Unfortunately, the CDFW hasn’t posted the results of this year’s fall survey yet, but I will post the results as soon as they become available.
There is no doubt that the State Water Project (SWP) and Central Valley Project (CVP) Delta “death pumps” have been the biggest killers of salmon, steelhead, Sacramento splittail and other fish species in California for many decades, as I have documented in hundreds of articles in an array of publications.
