Federal lawsuit would take Delta smelt off threatened list

Capital Press Staff Writer


FRESNO, Calif. - A farming community and a water district that delivers irrigation water to farmers are suing to remove the Delta smelt from the federal endangered species list, after almost 10 years under federal protection.

In a suit filed in U.S. District Court in Fresno this week, Westlands and San Luis & Delta-Mendota Water Authority argue that the designation of the fish is no longer needed and interferes with water deliveries.

When the fish was put on the threatened list, the federal government was required to evaluate the numbers of the Delta smelt. It has failed to do that, said Dan O’Hanlon, attorney representing the plaintiffs. After the Delta smelt was classified as threatened under the Endangered Species Act, the federal government was required to study the impact of the move and the progression of the fish. These have not been done, O’Hanlon said.

The suit is requesting an injunction keeping the federal government from regulating the Central Valley Project and State Water Project because of impacts on the fish.

A count of the fish, conducted by consultants hired by Westlands, found the three-inch-long fish in numbers that indicate it should be taken off the list

The “threatened” status of the Delta smelt has meant less water distributed to Westlands and San Luis & Delta-Mendota customers if fish are found or killed near the pumps.

The Westlands study indicated several million Delta smelt that are not yet to adult stage and several hundred thousand that are adults, O’Hanlon said.

Most Delta smelt live one year; a small percentage live a second year. They are found only in the Delta.

O’Hanlon said that based on the study, “We don’t think it’s endangered or threatened.”


Under the federal government’s guidelines, no rules establish a set number for delisting.

O’Hanlon said the lack of guidelines is “arbitrary and capricious,” and allows the government to defer delisting.

Biologists agree that progress has been made in the Delta smelt’s recovery, but delisting now may not be the best course of action. The numbers barely met the federal government’s requirements, said Kevin Fleming, a fisheries biologist with the state Department of Fish and Game in Stockton.

“While the numbers were enough to meet the criterion, things still don’t look good for the Delta smelt,” Fleming said. He also said the study cited in the lawsuit has not been reviewed by other scientists.

Water from the Central Valley Project is distributed to Westlands farmers in Kings and Fresno counties to irrigate crops. The San Luis & Delta-Mendota Water Authority pumps and distributes water for agricultural, urban and environmental uses in Fresno, Kings, Merced, Stanislaus, San Joaquin, San Benito and Santa Clara counties.


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