California Progress Report: Breaking News: Judge Orders California Water Project Shut Down Because of Violation of California Endangered Species Act

By Frank D. Russo

March 23, 2007

A California Superior Court judge has ordered the California Water Project, which transports massive amounts of water to Southern California to shut down pumps that are critical to its operations. The ruling has been stayed for 60 days to allow the state Department of Water Resources (DWR) to apply to the Department of Fish and Games (DFG)for permission to continue killing protected species as part of a lawful activity with a plan for full mitigation under California's Endangered Species Act (CESA) and special protections for the Delta.

The case is Watershed Enforcers v. California Department of Resources. It was filed by an alliance of sportfishing groups who accused DWR of killing threatened Chinook salmon and Delta smelt at its South Delta pumping facility without obtaining the required permit from the California Department of Fish and Game.

The requirement that must be met of full mitigation means that DWR must submit a specific plan that minimizes the fish kill and separately adds back in to the Delta as many of these species as it destroys in its operations.

The ruling comes at a time when there is much focused attention on the Delta with the release of two major reports and the attention of the California legislature on water policy in light of global warming's possible effects on snowfall and rain.

A 324 page report, "Envisioning Futures for the Sacramento–San Joaquin Delta", by the The Public Policy Institute of California (PPIC) was released in February. Another major report was issued last week, "Re-envisioning the Delta: Alternative Futures for the Heart of California" by The Delta Initiative of the University of California at Berkeley.

When the lawsuit was filed, Bill Jennings, Executive Director of the California Sportfishing Protection Alliance, noted that the California Delta is experiencing its greatest challenge and that it is the most important estuary on the West Coast of the United States. He said:

"At a time when state and federal agencies are spending millions of dollars on emergency studies to identify the cause of the crash of Delta fisheries, DFG and DWR have conspired, with a wink and a nod, to exempt the State Water Project pumps--the largest killer of endangered species in the estuary--from having to comply with the fundamental requires of CESA."

Water is going to be a big issue in California this year and probably for years to come. Mark Twain, a big fan of the West noted many years ago: "Whiskey is for drinking. Water is for fighting over." Henry David Thoreau said "I believe water is the only drink for a wise man." It now is for the fish and the sake of our environment as the water wars of this century heat up here in California.

The 36 page decision by Alameda County Judge Frank Roesch upon which his order is based can be seen on the Alameda County Courts' website. The case number is RG06292124.