Delta Smelt Are Poor Swimmers, Unlikely to Reach Pumps

How Many Smelt Are Actually At the Pumps?

By Kristi Diener, Fourth Generation San Joaquin Valley Farmer

Delta smelt are poor swimmers. When they have to swim against voluminous outflows, they struggle. They also lack endurance for distance and swimming against currents. This was the result of the taxpayer-funded swim performance test conducted more than 20 years ago. Why is this important?

Delta smelt live in the freshwater/saltwater mixing zone made up of outflow from the fresh waters of the Sacramento and San Joaquin Rivers, and the inflow of saltwater pushed towards that freshwater from the ocean tides. Smelt leave this mixing zone in search of freshwater to spawn, in the late winter to early spring. It is the same time of year when the outflows from the Sacramento and San Joaquin Rivers are at their peak. Recently, water surging out from the rivers was equal to 104,900 basketballs per second!

If the smelt are able to swim against these powerful outflows, they don’t go too far, and generally spawn pretty close to the nearest region of freshwater they can find in the delta. However, most smelt being surveyed during spawning are not in the delta at all, rather, in the much smaller waterways to the north where there is a fraction of the freshwater outflow. Twenty-one years ago, UC Davis acknowledged outflows from the Sacramento and San Joaquin rivers are actually too high for the endangered smelt!

Delta smelt by metric ruler Photo: USFWS
Delta smelt by metric ruler
Photo: USFWS

Let’s jump to the “pumps.” They are about 60 miles away from where smelt live in the mixing zone of the Suisun and San Pablo Bays. The pumps capture water at the south end of the delta, where it later flows into storage at San Luis Reservoir. Eventually, it is conveyed south to 2/3 of the state.

Water that is not captured by pumping surges out from the Sacramento and San Joaquin Rivers into that mixing zone. These pumps are routinely throttled back because, according to the Smelt Biological Opinion, smelt are in danger of getting sucked-in and killed. The result of not pumping is huge losses of water for human use and huge increases of outflow from these two rivers into the ocean.

So how many smelt, who lack endurance for long swims according to the swim performance test, are actually surveyed near the pumps and at risk of being liquidated? Every month, a trawl survey is conducted to count smelt and find out where they’re hanging out. I pulled up the fish distribution maps for every monthly trawl over a 10-year period. The closest a smelt has been surveyed near the pumps is about 30 miles away from them, seven years ago.

Still, in spite of their own swim performance tests, the opinion is that smelt swim about a 60 mile, squiggly endurance course, destined for the pumps. Remember, they spawn in freshwater, but actually, live back in the mixing zone where they must return. Nonetheless, this opinion is the very hypothesis that ratchets back pumping at full capacity and prevents the securing of water for humans. There are many other facets of the opinion that are questionable as well. Incidentally, just two smelt have been surveyed anywhere in the last 10 months.

Here’s the good news. President Trump signed an executive memo in October, requiring the Biological Opinions to be reviewed and updated. The science is well over a decade old. Please notice it is called an “opinion”, not a fact. Trump set a timeline and a deadline to get it done too. The assessment phase had to be completed by January 31, and it was. The deadline for the new Opinions to be issued is 135 days after the assessment, which I calculate to be around June 15th. I’m counting.

In the next couple of months, we’ll likely be hearing a whole bunch of malarkey coming from the folks favoring water for the sea in the name of fish, instead of for humans and the earth. There will be an uproar when the Biological Opinions are revised to actually help endangered fish, instead of being used as a vehicle to implement an agenda of man-made water shortages, more regulations, increased fees, and new taxes. You will hear misinformation, but you will know the truth.

Delta Smelt Performance Test can be found here.

Pacific Legal Foundation Appeals to U.S. Supreme Court Over Water Cutbacks Based on Delta Smelt Biological Opinion

On behalf of San Joaquin Valley almond, walnut, and pistachio growers, Pacific Legal Foundation (PLF) filed an appeal TODAY, asking the U.S. Supreme Court to review a Ninth Circuit decision this past March that upheld the Delta smelt “biological opinion” — an Endangered Species Act regulation that has caused devastating water cutbacks in Central and Southern California, worsening the effects of the current drought.

PLF’s petition for certiorari asks the High Court to reconsider — and reverse — the controversial precedent on which the Ninth Circuit relied:  the Supreme Court’s 1978 decision in TVA v. Hill, which gives a blank check for onerous species regulations, “whatever the cost.”

PLF’s appeal:  Regulators broke their own rules by ignoring economic impacts

Listed as “threatened” under the ESA, the smelt is a three-inch fish in the Sacramento-San Joaquin Delta.  In a controversial strategy to help the smelt, regulations under the 2008 “biop” send vast quantities of fresh water directly to the ocean — instead of storing it behind dams or pumping south for use in cities and towns and on farms.  However, the smelt hasn’t improved — but the economy has suffered, with even more severe effects as the natural drought has set in.

PLF has been battling the Delta smelt water cutbacks for many years, and once before sought Supreme Court review, in our separate challenge based on the Commerce Clause.

PLF’s current case is based on the fact that the U.S. Fish and Wildlife Service violated its own regulations in drafting the Delta smelt biop.  Specifically, the biop’s drafters ignored the potential harms — even though they were supposed to take economic considerations into account.

Damien M. Schiff, Principal Attorney, Pacific Legal Foundation's National Litigation Center
Damien M. Schiff, Principal Attorney, Pacific Legal Foundation’s National Litigation Center

“Under the U.S. Fish and Wildlife Service’s own rules, officials must consider economic impacts of proposed ESA regulations,” said PLF Principal Attorney Damien Schiff.  “But with the smelt biop they bypassed this requirement.  We’re asking the Supreme Court to call them out for not making good on their legal duty — and on their duty to the public interest.

“The economic impacts that regulators ignored have been tremendous — and tremendously negative,” Schiff continued.  “Even before the drought, pumping restrictions fallowed hundreds of thousands of acres of farmland, contributing to unemployment of 40 percent in some rural communities.  In Southern California, we saw what amounts to a Delta smelt tax, with water rates hiked by 17 percent or more in some areas.

“The biop has also worsened the impacts of the drought,” he added.  “It reduced the amount of water that was stored when we had ample rainfall and should have been saving for the dry times.”

PLF asks Supreme Court to help drought-stricken Californiaby rejecting the Delta smelt biop — and the “anti-human” TVA v. Hill

In 2010, then-U.S. District Court Judge Oliver W. Wanger, of Fresno, struck down the Delta smelt biop, holding that it had been drafted “arbitrarily and capriciously,” with “sloppy science and uni-directional prescriptions that ignore California’s water needs.”

However, this past March, a divided Ninth Circuit panel reversed Wanger’s order that the biop be rewritten.  Although the Ninth Circuit acknowledged that the biop is a “chaotic document,” poorly reasoned and written, the court cited TVA v. Hill in upholding it.

“The Ninth Circuit’s ruling was another example of the anti-human bias of TVA v. Hill and its staggering assertion that species protection takes absolute precedence over all other considerations,” said Schiff.  “As California suffers a third year of drought, we are asking the Supreme Court for relief from illegal regulatory cutbacks on water — and from the pernicious judicial precedent that is used to justify them.

TVA’s indifference to the welfare of human beings was a misreading of the Endangered Species Act from the first, but it’s more incorrect than ever today,” Schiff said.  “Ironically, the Ninth Circuit’s decision undercuts Congress’ attempts to temper TVA’s extremism.  Congress added a framework to the ESA requiring ‘reasonable and prudent alternative[s]’ when protecting species.  The FWS’s rule for considering economic impacts furthers this purpose of bringing balance to the process.  Yet the Ninth Circuit has permitted the agency to violate that rule and ignore the devastating impact of water cutbacks on families, farms, businesses, and the California economy.

“In recent years the U.S. Supreme Court has begun to back away from TVA,” Schiff noted.  “The Delta smelt case offers the court an opportunity to help drought-scorched California — and to finally overturn this radical and harmful precedent.”

PLF represents Central Valley farmers

In all of PLF’s legal efforts against the Delta smelt regulations, PLF attorneys represent three farms in California’s San Joaquin Valley that have been seriously affected, since 2008, by the water cutbacks:  Stewart & Jasper Orchards (an almond and walnut farm); Arroyo Farms (an almond farm); and King Pistachio Grove (a pistachio farm).  PLF represents the clients in this case — as in all our cases — free of charge.

The case is Stewart & Jasper Orchards v. Jewell.  PLF’s petition for certiorari, a video, a blog post, and a podcast, are available at:  www.pacificlegal.org.

 

About Pacific Legal Foundation

Donor-supported Pacific Legal Foundation (www.pacificlegal.org) is a nonprofit public interest watchdog organization that litigates for limited government, property rights, and a balanced approach to environmental regulation, in courts across the country.  PLF represents all clients free of charge.