Lawsuit Challenges California Permits for Delta Tunnels to Harm Endangered Salmon, Smelt

SACRAMENTO, Calif.— Conservation groups have sued the California Department of Fish and Wildlife to challenge the legality of a state permit that would allow the controversial Delta tunnels project to kill endangered salmon and other imperiled fish protected by the state’s Endangered Species Act.

SACRAMENTO, Calif.— Conservation groups have sued the California Department of Fish and Wildlife to challenge the legality of a state permit that would allow the controversial Delta tunnels project to kill endangered salmon and other imperiled fish protected by the state’s Endangered Species Act.

The tunnels project known as California WaterFix would divert massive amounts of fresh water from the Sacramento-San Joaquin River Delta to the San Joaquin Valley and Southern California, doing significant harm to Central Valley salmon runs, declining Delta fish populations and the Bay-Delta ecosystem.

“Salmon and smelt populations are already on the verge of extinction, and the state’s own science shows that exporting even more water from the Delta by approving the tunnels project would hasten extinction,” said Gary Bobker, program director at the Bay Institute. “It’s clearly illegal to permit WaterFix when doing so places the future existence of these species at risk, and unnecessary too, since there are better ways to meet our state’s water supply needs than approving this project.”

The lawsuit was filed Friday in California Superior Court in Sacramento by the Bay Institute, Center for Biological Diversity, Natural Resources Defense Council and San Francisco Baykeeper; they’re represented by the nonprofit environmental law firm Earthjustice. The suit challenges Fish and Wildlife’s July 2017 issuance of a “take” permit for the tunnel operations. The agency improperly authorized the California Department Water Resources to kill and harm state-protected fish species, including winter-run and spring-run chinook salmon, longfin smelt and Delta smelt.

“You can’t just give a permit to decimate California’s remaining salmon runs and drive critical fish species in the Bay Delta to extinction,” said Jeff Miller with the Center for Biological Diversity. “It’s time to kill this misguided tunnels project once and for all and focus on improving fresh water flows to restore the Delta.”

California WaterFix is the latest in a long line of water diversion projects intended to remove vast quantities of water from the Delta before it reaches San Francisco Bay. On the scale of the English Channel Tunnel, the $17 billion to $67 billion project would build two 30-mile tunnels, each four stories high, to route water from the Sacramento River in the north Delta to central and Southern California. The water diversions would degrade habitat conditions for declining runs of salmon and smelt, kill young fish at diversion points, disrupt the estuary’s food chain and increase salinity in the Delta.

“Construction and operation of the tunnels will devastate California’s native fisheries, threaten thousands of fishing jobs, and leave the Bay-Delta estuary worse off than today,” said Doug Obegi, a senior attorney with the Natural Resources Defense Council. “It will also divert critical funding away from cost-effective water supply solutions.”

“The Bay ecosystem needs freshwater inputs to survive and be healthy,” said Erica Maharg, managing attorney at San Francisco Baykeeper. “By allowing the proposed tunnels to export too much freshwater for central and Southern California, the Department of Fish and Wildlife is shirking its duty to protect the already threatened and endangered fish of San Francisco Bay.”

“State officials from the governor on down falsely claim that WaterFix would improve conditions for critically endangered native fish, including California’s once abundant chinook salmon,” said Trent Orr, Earthjustice staff attorney. “But disrupting a vast area with decades of construction to take even more fresh water from an already degraded Delta would hasten these species’ demise, not restore them to healthy populations.”

The proposed WaterFix diversion of Delta water would dramatically degrade habitat and water quality conditions for chinook salmon, longfin smelt and Delta smelt by decreasing flows into and through the Delta, placing already fragile and declining fish populations in serious jeopardy of extinction. All of these fish species are protected under the California Endangered Species Act.

The California Department of Fish and Wildlife cannot legally issue a permit to kill or “take” these protected species because operation of the tunnels would jeopardize the continued existence of the protected fish species. Although the Act requires that any take of protected species must be minimized and fully mitigated, the Department failed to include mitigation measures that could successfully prevent these fish species from declining. The Department also violated the Act by failing to use the best available science on the impacts of the tunnels and associated water diversion.

Last week conservation groups challenged the legality of proposed bonds to pay for the construction of the tunnels project. Earlier this week Westlands Water District, the largest supplier of irrigation water to California farms, voted to not participate in the Delta tunnels project. A court ruling against the bonds or rejection of the project by major water districts could be fatal to WaterFix because the project’s success hinges on funding commitments by the recipients of the project water. Public funds cannot legally be used to pay for the project. Conservation groups have also challenged the adequacy of the environmental review for WaterFix under California’s Environmental Quality Act.

In addition to driving endangered species toward extinction, the project would devastate Delta farmers, Sacramento Valley communities and what is left of California’s salmon fishing economy. In response, a large array of organizations, public agencies and municipalities have now filed multiple lawsuits challenging the project on a wide variety of legal grounds, including 21 conservation and fishing groups, 30 water agencies, and 12 counties and cities, as well as Delta famers and the Winnemem Wintu Indian tribe.