For now, delta pump shutdown has been averted

Issue Date: May 16, 2007

By Kate Campbell
Assistant Editor

The 60-day clock that would have shut down the State Water Project export water pumps near Tracy has stopped ticking--much to the relief of farmers and the more than 23 million Californians who depend on the pumps for water delivery.

How long the hands on the clock stand still, however, is very much undecided. That is cause for great concern and California Farm Bureau Federation leaders are monitoring the situation very closely. Legal experts say the reprieve could be short lived if the higher court declines to hear the state's appeal.

"One of the most important developments in this matter is that the state Department of Water Resources withdrew its request for a consistency determination by the Department of Fish and Game," said Brenda Washington Davis, CFBF Natural Resources and Environmental Division managing counsel. "There also are new agreements between these agencies included in a May 7 Memorandum of Understanding that will affect operation of the pumps. The MOU continues an adaptive management approach that allows the agencies to respond to changes in the needs of the listed species as they occur, but the amount of water committed by the State Water Project may increase by up to 250,000 acre-feet above existing requirements.

"This means people south of the delta will have to anticipate reduced water supplies and plan accordingly in what is already shaping up to be a water-challenged year, until the appeals court rules, or the federal biological opinions on delta smelt and salmonid species are completed by the contemplated April 2008 deadline," Davis said. "When the latter happens, DWR plans to renew its request for a consistency determination."

Added to that, she said there still is worrisome litigation pending in federal court that could impact the operations of both the state and federal pumps in the delta.

DWR last week appealed the April 18 injunction ordered by the California Superior Court that would have shut off the pumps in 60 days. The court in Alameda County issued the injunction because of concerns about whether or not proper authorization had been obtained by DWR from the Department of Fish and Game.

The crux of the matter, she said, is whether there are proper incidental take permits for protected delta smelt and chinook salmon that can get caught in the pumps.

The April 18 ruling by the Alameda court sparked concern throughout the state because the pumps are a critical component of the water delivery system that helps supply water south of the Sacramento-San Joaquin Delta to irrigate 755,000 acres of farmland and provide water to more than 23 million Californians.

The Harvey O. Banks Delta Pumping Plant is a key component of the 444-mile-long California Aqueduct, the largest such water conveyance in the world.

When the Alameda court handed down its decision, DWR Director Lester Snow said in a prepared statement that DWR intended to appeal the court's decision and at the same time apply for a "consistency determination" from the Department of Fish and Game.

A consistency determination would decide whether federal Endangered Species Act constraints on the State Water Project's operations are also sufficient to ensure consistency with the state's Endangered Species Act.

In a letter to Department of Fish and Game Director L. Ryan Broddrick advising of DWR's appeal, Snow pointed out that the Alameda court order is automatically stayed pending outcome of the appeal. The plaintiffs, identified in the filing as "Watershed Enforcers," filed a statement of non-opposition with the court, Snow said.

He also noted that a federal court decision on the U.S. Fish and Wildlife Service's biological opinion on delta smelt for long-term operations of the Central Valley Project and State Water Project "could have an effect on our request for a consistency determination" in the future.

Due to these developments, Snow said he was withdrawing his department's request for a consistency determination to ensure federal and state Endangered Species Act are consistent for incidental take of endangered or threatened species, such as delta smelt and chinook salmon that could be caught in the delta water pumps.

"The pumps could still be shut down when the stay is lifted following the court of appeal's decision, if that decision is to uphold the lower court's ruling and DWR is unable to secure authorization from DFG in the meantime," said Chris Scheuring, CFBF water resources director. "At this point, we don't know when to expect a decision from the court of appeal. So we don't know how much time we've really got for the pumps to keep operating under this scenario."

Scheuring said he thinks the current action will result in continued operation of the pumps at least for the next several months, but stressed that the situation is in the hands of the court and it's impossible to predict the outcome.

(Kate Campbell is a reporter for Ag Alert. She may be contacted at kcampbell@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item. Top