Groups say biological opinion is late, lacks scientific basis

By WES SANDER
Capital Press

SACRAMENTO -- An environmental group has sued the U.S. Fish and Wildlife Service for delaying a decision on whether to increase protections for the Delta smelt.

The Council for Endangered Species Act Reliability, or CESAR, filed the suit on Oct. 15 in federal district court for the Eastern District of California.

With the lawsuit, CESAR joins San Joaquin Valley farmers and other water users in arguing that the science behind a federal biological opinion is flawed and that restricting pumping from the Sacramento-San Joaquin Delta is not helping the smelt.

"The common ground is on the science," said Brenda Davis, a legal adviser to CESAR. "(FWS) either cherry-picked what they've wanted in order to determine the outcome, or they've decided to go full-speed ahead, even if it's not helping the species."

The smelt's well-being has so far been pursued by reducing the pumping of Delta water to central- and south-state users. The 2008 biological opinion by FWS said pumping was hastening the smelt's decline.

The smelt is currently listed as "threatened" under the federal Endangered Species Act. The more-restrictive "endangered" listing would require that FWS examine the effects of other factors -- like industrial pollution, ammonia discharges, invasive species and salinity -- on the smelt, Davis said.

"There are any number of reasons for the problems with the Delta smelt," Davis said. "You can't have five reasons why things have gone wrong and ignore four of them."

In March 2006, the Center for Biological Diversity, Bay Institute and Natural Resources Defense Council petitioned FWS to list the smelt as endangered. ESA rules require a response in 90 days, but the agency didn't answer until July 2008, when it said the change "may be warranted," according to the CESAR complaint.

By that time, the agency's one-year deadline for making a final decision had passed. The suit charges that FWS is still dragging its feet 31/2 years after the petition was first filed.

"I don't know if it's because they want a certain outcome, or they're not capable of doing their job," Davis said. "But it's mismanaging the species either way."

In response to a request by U.S. Sen. Dianne Feinstein, D-Calif., Interior Secretary Ken Salazar agreed in September to submit the biological opinion to review by the National Academy of Sciences. Feinstein also requested that factors beyond Delta pumping be examined.

"The bottom line is, if it's not helping the species, you need to check what you're doing ... and look at the science and deal with it," Davis said.

Staff writer Wes Sander is based in Sacramento. E-mail: wsander@capitalpress.com.