[Water_news] 1. DWR'S CALIFORNIA WATER NEWS - Top Item for 5/7/07

Department of Water Resources

California Water News

A daily compilation for DWR personnel of significant news articles and comment

 

May 7, 2007

 

1.  Top Item

 

Pump doubts raised years ago

Contra Costa Times – 5/6/07

By Mike Taugher, staff writer

 

State water officials four years ago inquired about getting approval to kill imperiled fish at the massive water pumps near Tracy, according to internal government e-mails obtained by the Times.

 

But the Department of Water Resources never got that approval, and as a result the pumps are now operating under a legal cloud and the threat of a court-ordered shutdown.

 

The department, which insists it has the legal authority it needs, nevertheless was making inquiries about getting a state endorsement as early as 2003, indicating that officials knew there was a possibility they could run afoul of the California Endangered Species Act.

 

"We knew people had expressed concerns," said department deputy director Jerry Johns.

 

But, Johns said, to his knowledge the water agency never made a formal request for approval from the Department of Fish and Game.

 

"For reasons I don't know, we didn't move forward," he said.

 

The e-mails show the water department was asking state biologists to endorse federal permits that allow the agency to run the huge pumps even though protected fish, including Delta smelt and salmon, are killed in the process.

 

That endorsement is the simplest way to comply with the state endangered species law.

 

The Fish and Game Department never issued an endorsement and never issued a permit of its own.

 

"It's almost as if the agencies came to loggerheads and DWR decided to tuck its head down and hope no one noticed they didn't have CESA (state Endangered Species Act) compliance," said Andrea Treece, a lawyer representing environmental groups that sued to overturn the federal permits.

 

"It really seems like politics has been driving this whole process," she added. "It seems like scientists have been raising flags, saying, 'We have problems with this project.' And they've just been rolled."

 

The legal underpinning of the state's major water delivery projects is being challenged as scientists are trying to figure out why several open-water fish species, including Delta smelt, are in a steep and alarming decline.

 

Most experts say Delta pumps are at least partly to blame, but invasive species, especially a voracious clam, and pollution also are suspected.

 

Last month, an Alameda judge ruled that the State Water Project, which delivers water to 25 million Californians from the East Bay to San Diego, is operating in violation of state law because it has neither a state permit nor permission to rely exclusively on the federal permit. The judge gave state water officials 60 days to comply or shut off the pumps.

 

State water officials have vowed to appeal the court order, saying a prolonged shutdown would be economically catastrophic given how much cities and farms rely on the Delta water.

 

Johns said that although he did not know why his agency never formally requested approval from state regulators, it may have been because the water agency says that a patchwork of existing agreements and documents is enough to satisfy the law.

 

But Alameda County Superior Court Judge Frank Roesch rejected that position. And the e-mails indicate that state officials were considering ways to shore up their position as long as four years ago.

 

"They were clearly aware they didn't have the necessary permits. They were seeking them, but they were seeking them in a way Fish and Game could not (approve)," said Bill Jennings, executive director of the California Sportfishing Protection Alliance, which brought the lawsuit.

 

To avoid a shutdown, state water officials have now asked state biologists to endorse the federal permits that allow the killing of protected Delta smelt and the spring and winter salmon runs. A decision is due Wednesday.

 

The disclosure that the state's water management agency in 2003 and 2004 inquired about, but did not get, regulatory approval under the California Endangered Species Act raises several questions.

 

Namely, why did the agency seek regulatory approval if it believed it already had the appropriate authority? Why was no approval granted? What changed that might allow state regulators to issue approvals now when they did not before? And, finally, if state regulators concluded that water operations did not comply with the state endangered species law, did they have an obligation to do something about it?

 

Department of Fish and Game spokesman Steve Martarano declined to answer those questions, saying only that one of the e-mails obtained by the Times dealt with the narrower issue of whether species such as the yellow-billed cuckoo and bank swallow -- protected only under state, as opposed to federal, law -- could also be covered along with smelt, salmon and other species covered by the federal permit.

 

"We're looking to what is happening in the future," Martarano said. "Those e-mails are not the same as what's taking place today."

 

The state endangered species law is stricter in some ways than its federal counterpart. That means obtaining state approval could lead to tougher limitations on water operations and, as a result, less water for California's cities and farms.

 

The internal e-mails show that water agency officials began contacting wildlife regulators at least as early as 2003 about obtaining regulatory endorsements, called "consistency determinations," of the federal permits.

 

At that time, state and federal water officials were developing a comprehensive reworking of how the state's plumbing is operated through a document called the Operations Criteria and Plan, or OCAP. That document spells out how state and federal water agencies coordinate operations of major reservoirs in Northern California and massive Delta pumps.

 

In a 2003 e-mail, an official at the state wildlife agency told colleagues that a water agency official asked for a meeting "to go over how we expect to deal with the consistency determination requirement." He complained that biologists were getting only a "symbolic opportunity" to review an early draft of the water planning document.

 

"This OCAP business has always been one of our biggest challenges, and our record is weak," the Fish and Game official, Jim White, wrote.

 

In the e-mail, White emphasized to colleagues that they needed to figure out what requirements would have to be met to protect fish under state law, then work with federal regulators to ensure that the federal permits were strict enough to meet those requirements.

 

But the following year, another e-mail showed that state salmon biologists had concerns about the OCAP's proposed relaxation of cold-water standards in the Sacramento River. The change, which has since been approved, "will have a far reaching effect on the movement and distribution of salmonids in the upper Sacramento River," the e-mail said.

 

In another e-mail under the subject heading "revisions to (California Endangered Species Act) OCAP letter," a water department lawyer told a colleague that "we want DFG (the Department of Fish and Game) to find that the entire federal opinion is sufficient to meet state requirements."

 

The lawyer, Cathy Crothers, wrote that she had revised a departmental letter "so that DWR can meet CESA obligations for all listed species by requesting DFG consistency based on the federal opinions."

 

A leading critic of the water agency said that by not disclosing the apparent difficulties that water officials were having in complying with the state endangered species law, the state agencies hampered efforts to fix the ailing Delta, which has since gotten worse.

 

"That would have brought the parties together to say, What can we do to make it better?" said state Sen. Michael Machado, D-Linden.

 

Instead, Machado said, the agencies kept those difficulties under wraps and discussed them behind closed doors.

 

"Now we've pulled back the curtain and see what it is," Machado said. "This is a total abdication of responsibility." #

http://www.contracostatimes.com/ci_5832356

#####