May 01, 2015

The delta smelt battle: A new model for healthy rivers and water supplies

Kate Poole

Across the globe, access to clean, fresh water for people and ecosystems is declining. In California, this scarcity came to a head in a series of cases that are reforming management of the state’s water system. California’s response to this challenge could serve as a model for ensuring sufficient water supplies for people and the environment in a climate-changed future.

Fisheries in decline

Freshwater fishes had the highest extinction rate of all vertebrates worldwide during the twentieth century. The pace of extinction is increasing, with 25 percent of fish extinctions having occurred since 1989. At the same time, fish are an increasingly important source of food to the world’s people, with fish consumption growing at a rate double that of population growth over the last half century.

California has not escaped the global phenomenon of fishery declines, despite a rich fishing heritage. The San Francisco Bay Delta, the largest freshwater estuary on the West Coast of the Americas, once supported a thriving ecosystem teeming with native fish as well as a vital fishing economy for communities up and down the West Coast. Today, many of the Bay-Delta’s fish populations are on the verge of extinction. The last remaining commercially fishable run of salmon—the fall-run Chinook—has suffered such severe declines that regulators closed the salmon fishing season off the coast of California in 2008, 2009, and for most of 2010 as a drastic measure to allow this population to rebuild.

The Ninth Circuit upholds ESA protections

In 2014, the Ninth Circuit Court of Appeals gave California’s fisheries a fighting chance for survival. The court decided two cases challenging Endangered Species Act (ESA) protections intended to ensure the continued existence of several threatened and endangered fish and their critical habitat in the Bay Delta: San Luis & Delta-Mendota Water Authority v. Jewell, 747 F.3d 581 (9th Cir. 2014), cert. denied., 135 S. Ct. 950 (2015) (challenging ESA 2008 provisions for the Delta smelt), and San Luis & Delta-Mendota Water Authority v. Locke, 776 F.3d 971 (9th Cir. 2014) (challenging ESA 2009 provisions regarding Salmonid species). The court upheld the ESA-based protections in each case over the protests of regional water suppliers in the Central Valley and Southern California. The covered fish include winter-run and spring-run Chinook salmon, Central Valley steelhead, North American green sturgeon, orcas, and the delta smelt, as an “indicator species” because its fortune rises and falls with the health of the estuary. The populations of most of these fish have collapsed in recent years due, in large part, to excessive freshwater withdrawals from the state’s rivers by California’s two massive water projects, the State Water Project and the federal Central Valley Project.

Freshwater withdrawals

Together these two water projects profoundly alter the Bay-Delta’s natural hydrology in three fundamental ways:

  • by impounding millions of acre-feet of water behind dams upstream of the Bay Delta,
  • by diverting millions of acre-feet of water to water users before flows ever reach the Delta, and
  • by exporting millions of acre-feet of water from massive pumps in the south Delta for export to agricultural interests and cities in central and southern California (one acre-foot is enough water to cover an acre of land to a depth of one foot—or just under 326,000 gallons).

The protections put in place by the U.S. Fish and Wildlife Service and National Marine Fisheries Service, and affirmed by the Ninth Circuit, reduce freshwater withdrawals to levels designed to provide sufficient water flows and thereby prevent fish extinctions. As the Ninth Circuit succinctly put it, “People need water, but so do fish.” 776 F.3d at 980.

The biological opinions

The protections upheld by the court are contained in plans called “biological opinions,” in ESA parlance. The biological opinions recognize that continuing to divert half of the Delta’s flow, on average, would kill off too many fish. The opinions therefore called for reducing freshwater diversions by the water projects to about 5 million acre-feet annually, which is what the state averaged in the 1980s and 1990s. Several sets of plaintiffs that divert large amounts of water out of the Bay Delta, including two of the largest urban and agricultural water districts in the country, the Metropolitan Water District of Southern California and the Westlands Water District, challenged these biological opinions. Plaintiffs alleged that the agencies inadequately considered the potential impacts to agriculture in central California and water use in southern California. The Natural Resources Defense Council, along with several other conservation, tribal, and fishing groups, intervened in the cases to help defend the biological opinions.

A sustainable water future

The battle to protect the Bay Delta’s fisheries has prompted a long-needed paradigm shift in California’s approach to water supplies. The litigation and resulting pumping modifications in the Bay Delta have accelerated implementing technologies and policies to more efficiently use and re-use existing water supplies to vastly increase the value that we obtain from each drop of water. This shift away from the old “dam-and-divert” approach will be necessary in a number of states throughout the arid western United States as they reach the limits of their water supplies and is an approach that is helping regions of California that have embraced it to weather the current drought. In California alone, experts estimate that the state can expand existing water supply and reduce water demand by between 7 and 14 million acre-feet annually using a variety of proven, cost-effective techniques such as

  • improved water conservation and efficiency,
  • increased wastewater reclamation, and
  • stormwater capture and reuse.

That’s more water than has ever been exported out of the Bay Delta in a year.

A model for the world

We must heed the warning signs provided by declining fisheries and indicator fish such as the delta smelt if we are going to make the needed investments in sustainable water supplies in time to avert a worldwide crisis in freshwater management. The litigation over the Bay Delta ecosystem provides California with the chance to model for the world how it can be done.

Kate Poole

Kate Poole is a senior attorney and Litigation Director for the Natural Resources Defense Council’s Water Program.