by Bill Jennings, Executive Director, CSPA
May 30, 2009 -- U.S. District Judge Oliver W. Wanger granted a preliminary injunction against the U.S. Fish and Wildlife Service (USFWS) biological opinion for Delta smelt.  Westlands and San Luis Delta-Mendota Water

A famous or infamous delta smelt, depending on your point of view. Photo courtesy of U.C. Davis

Authority had filed suit against the USFWS Biological Opinion alleging failure to comply with the National Environmental Policy Act and request a preliminary injunction.  Wanger has agreed and issued injunctive relief requiring the Service to first justify export restrictions on a weekly basis to the court before implementing them.  Judge Wanger is now reverting to his historical form and demonstrating why water agencies have made every effort to ensure that cases involving exports and the pumps are before his court.

The gates at Clifton Court Forebay. Photo courtesy of U.C. Davis

Recently, USFWS has required significant reductions in exports in order to prevent Delta smelt from being killed at the pumps.  The absolute "Take Limit" for Delta smelt for May is 449.  The "Concern Level" is 299.  As of 29 May 09, 337 Delta smelt had been taken (of course, many smelt simply passed through the louvers at the screens and were not counted).  Consequently, USFWS invoked added conditions that led to a reduction in exports from 3,353 cfs (18 May) to 1,190 (28 May - 209 cfs at Banks and 981 cfs at Tracy).

A number of water export contractors had filed a series of lawsuits against USFWS over the BiOp and recently DWR asked for a reconsideration of the BiOp.  We'll now see the resolve of the USFWS: wimps or defenders of the estuary.

Memorandum decision and order

Finding of Facts and Conclusions of Law