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DELTA SHOWDOWN

In a frenzy of courtroom, boardroom, and legislative chamber activity, water managers, water, contractors, attorneys, judges, and enviros are desperately seeking to resolve the Delta's most pressing issue: What level of "take"-fish kills-of salmonids and Delta smelt is acceptable while operating the state water project? As Estuary went to press, the answer to this question was zero, as smelt congregating at the pumps forced the temporary shutdown of the Harvey O. Banks Pumping Station.

The decline of the Delta smelt and other pelagic organisms-widely reported in 2005-is continuing at an unprecedented rate. The latest figures from the spring trawls of the juvenile population found the lowest number of fish ever recorded-only 25. Some of the trawls picked up no smelt. Overall, the population found in the trawls represents a 93 percent reduction from last year's levels.

"Delta smelt are at extreme low levels of abundance in every survey we've done over six months," says Bruce Herbold of the U.S. EPA.

While this precipitous drop is alarming news just by itself, it is also the sign of a larger problem: The demands on the Delta have outstripped the current abilities of agencies and stakeholders that use and manage it. The Banks Pumping Station in Tracy sends water from the Delta south for use by 24 million people, for urban and agricultural uses. At the same time, there must be enough water to manage salinity levels for drinking water in the East Bay and South Bay as well as ensure cool enough temperatures for fish. The May 31 shutdown keeps the pumps off for seven to ten days, except for maintaining health and safety. After this time, officials will see if the smelt have finished migrating to the western Delta in search of cooler waters. If smelt remain in the path of the pumps, officials will have to decide whether they can run the pumps and keep from killing fish.

The California Sport Fishing Protection Alliance's Bill Jennings lays the blame for the smelt decline at the feet of the state water project and water exporters. "You can't export 6 million acre feet from this Estuary and have the ecosystem remain intact; that's the bottom line," says Jennings.

But the pumps are not the only problem, says Peter Moyle, one of several researchers who worked on the CALFED Bay-Delta Authority's Independent Science Board. "You can't stop pumping and the fish will miraculously come back," explains Moyle. "The whole Delta ecosystem has changed dramatically in recent years."

Chief among the causes of those dramatic changes has been global warming. Less snowfall and warmer temperatures have reduced the Sierra snow pack. So precipitation that once fell as snow and melted through the summer now falls as rain in the late winter and spring. This change has created storage problems and, most notably, increased Delta flows that have taxed the state's levee system in recent winters. These conditions have set in motion a series of events that will force a new system of management on the Delta:

• In December, Jennings and the California Sport Fishing Protection Alliance sued the State Department of Water Resources to force them to obtain a permit for operating the Tracy pumps.
• In February, the Public Policy Institute of California issued a sobering report describing a Delta in crisis with a crippled levee system, fish in failing health, and a dearth of leadership and authority for the state-federal institution charged with managing the Delta, CALFED.
• In March, a Superior Court judge in Alameda ordered DWR to obtain a state permit to allow them to kill smelt or get an endorsement of federal permits, a requirement of the California Endangered Species Act (CESA).
• On April 9, DWR requested that the California Department of Fish and Game determine whether federal and state biological opinions and incidental take statements from NOAA Fisheries and the U.S. Fish and Wildlife Service are following the law laid out in CESA.
• On April 18, Alameda Superior Court Judge Frank Roesch finalized the March order, requiring DWR to comply with CESA within 60 days or shut down the state water project.
• On April 26, U.S. District Court Judge Oliver Wanger questioned the legality of a federal endangered species permit during oral arguments in a lawsuit filed by enviros to overturn a state permit that allows Delta smelt to be harmed by the operations of the Central Valley Project and the SWP. A decision in this case is imminent.
• In May, DWR appealed the Superior Court decision, stopping the 60-day clock on the permitting process and buying time for the agency to comply with endangered species law.

In addition, last year, Governor Arnold Schwarzenegger created the Delta Vision "Blue Ribbon" Task Force, headed up by former state Senator Phil Isenberg, charged with coming up with a plan for managing the Delta. A related group, the Bay Delta Conservation Steering Committee, is working on a Bay Delta Conservation Plan to hammer out how to better balance pumping operations with environmental needs. This plan is being developed by a team that includes one representative each from the state and federal wildlife and reclamation agencies, NOAA Fisheries, CALFED, six water agencies, including Westlands Water District and the Metropolitan Water District, five environmental groups including Environmental Defense, and one representative from the California Farm Bureau.

These groups are tasked with developing long-range plans-much like CALFED was when the Bay Delta Authority was created 12 years ago. This overlap frustrates Marc Holmes, a state Senate-appointed-at large member of the Bay- Delta Authority, who is among those who think the objectives of the Bay Delta Authority Record of Decision are unattainable. Neither does Holmes think the state needs another committee to study things. "By forming a blue ribbon panel to come up with a new plan, the Governor is just punting," notes Holmes.

The Contra Costa Water District's Greg Gartrell is also itching for the state to take action. "There are critical actions-on levees, water quality, and ecosystem issues-that can and should take place now that don't preclude any Delta long-range planning," says Gartrell, whose agency is helping develop the Bay Delta Conservation Plan.

One of those actions, says Gartrell, is the Franks Tract Project, which strives to improve water quality while helping prevent fish entrapment at the pumps. He says funding for projects like it are available through voter approved bonds for water quality and levee reinforcement. And then there's also a bill introduced recently by State senator Joe Simitian that, among other things, calls on the state to find ways to move forward on five endorsed proposals in a study issued in February by the Public Policy Institute of California.

In Envisioning Futures for the Sacramento-San Joaquin Delta, a team of researchers from U.C. Davis, including Moyle and geologist Jeffrey Mount, give a bracing assessment of the Delta. The 1,100-mile levee system is increasingly vulnerable to failure from earthquakes, floods, or other forces, with potentially huge economic consequences-roughly $30 to $40 billion in losses due to disruptions in power, water exports, and shipping to the Port of Stockton. The ecosystem is threatened, and the Delta smelt faces extinction. And management of the Delta through the CALFED process has been a failure, primarily because CALFED has lacked independent authority or budget, according to the report.

At the same time, the report gives a prescription for what could be done. A part of what informs these recommendations comes from the CALFED science program, which, says Moyle, "has generated a lot of new information that's allowing people to do a lot of decision making today." One of the report's key recommendations is to treat the Delta as a complex, fluctuating mosaic of uses (fresh and salt water) instead of the large, homogeneous, freshwater body it is regarded as presently. The bottom line in the report is that no one proposal will solve the crisis; instead, some hybrid solution will need to be worked out, preferably of the five alternatives it endorses, two of which call for an independent conveyance system.

But the clock is ticking. And action needs to come soon. DWR's Jerry Johns is feeling the pressure as he works to resolve the endangered species issues surrounding the state water project. His agency is awaiting the District Court opinion on the federal Endangered Species Act while working on an updated biological opinion with state and federal fish agencies that will become the basis for getting a permit for the SWP. Many observers say this process will take until next April. Gartrell predicts the time frame at two years.

Johns sees a more optimistic schedule. He says BurRec has called for a draft biological assessment in October, but Johns says his agency could have the final biological opinion before then. "We're trying to push for this to happen earlier than this," he says.

Holmes says more of the same won't do. "State agencies have failed for more than 20 years to stabilize and reverse the decline of fish populations in the Delta, even though ordered by the court to do so. Why do we think they will succeed now? Meanwhile, the state has assembled the highest caliber team of scientists in the world to help solve the problem, yet hasn't even asked for the team's advice. Delta smelt don't need another permit, and they don't need another blue ribbon panel. Give it to the Independent Science Board and let them do their job."

CONTACT: Jerry Johns (916)653-8045; Greg Gartrell (925)688-8100; Bill Jennings (209)464- 5067 KC

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