A+-+POLS+451+Delta+Smelt

=Material on the Delta Smelt litigation goes here.=

Article on GOP introducing legislation to cut back on funding to help restore San Joaquin Delta (JP) []

4/25/11-San Francisco Superior Court Judge rules water diversion projects of Northern California violate Endangered Species Act (Jose P.) []

Writ of Mandate for San Francisco Superior Court decision (Jose P.) []

Article leading up to San Francisco Superior Court Decision (Jose P.) []

Provides History of Delta Smelt Population and estimates for future Smelt numbers (Jose P.) []

Prior Appropriation Doctrine (Jose P.) · []

Public Interest Doctrine (Jose P.) · []

Post your e-mail Paul - pgeske2@uic.edu José - jponce5@uic.edu Brittany - bryan3@uic.edu

[|The New York Times compares the water markets and policies of Australia’s Murray-Darling Basin and California’s San Joaquin Valley. Will California’s farmers follow in the footsteps of their Australian counterparts, who made far-reaching changes to their water practices in response to a dire 12-year drought?]

[] (Jose 3/6/11) This article is based on the re-evaluation of the population decrease of the "longfin smelt" that is due this upcoming September. Amongst the longfin smelt it explains how the delta smelt, threadfin shad, Sacramento splittail, and striped bass populations have rapidly depleted since 2002.

[|Depletion of California ground water supplies] by farmers. (Evan 3/6/11)

[|Letting the Delta Smelt go extinct?] Peter Gleick of Circle of Blue comments on a new report by the Delta Stewardship Council, and you can download that report from Gleick's article. Gleick is very critical of the report.

[|Pacific Legal Foundation Case Summary] There are also links to various briefs on the case on the right of the page.(NB 3/1)

[|Analysis] of Judge Wanger's decision on the Delta Smelt Consolidated cases.(NB 3/1)

Recent [|compromise] of the two sides of the controversy and a little [|more] on the compromise (NB 3/1)

[| Update 9/17/07]--This is an old update on the Delta Smelt case. I thought this was interesting because it gives details about the history of the litigation. (B.Ryan 3/2/11)

[|Letter to Governor Schwarzenegger from the PACIFIC L EGAL F O U N D A T I O N] (B.Ryan 3/2/11)

[|Blog]--This blog is very interesting when reading up on this case. It also contains links to helpful sources. (B.Ryan 3/2/11)

This is an article from the San Juaquin Agricultural Law Review on the possible applications of the Commerce Clause to the delta smelt (Paul Geske 3/2/11)

This is an article from the San Joaquin Agricultural Law Review on possibly seeking an exemption of the delta smelt from the protections of the Endangered Species Act due to the economic hardship caused by the delta smelt protection efforts (Paul Geske 3/2/11)

This is a news article that gives a decent description of the fish, its decline in population, and the hardships of protecting the dwindling smelt numbers (Paul Geske 3/2/11)

Delta Smelt Controversy Timeline (PG)
1990’s-2000’s – Water exports from the delta increase by 48%, at times reversing rivers and killing smelt

3/5/1993 -- Delta Smelt Listed as a threatened speces

3/8/2006 – National Fish & Wildlife petitioned by the NRDC to place smelt on the endangered species list

12/15/2008 – Biological Opinion on the coordinated operations of the Central Valley Project (CVP) and the State Water Project (SWP) regarding the deterioration of fish species in the delta

2009 – California adopts package of stronger water protection laws

12/14/10 – Wanger rules on the Biological Opinion agreeing with the overall conclusions regarding the deterioration of the smelt but requests more data and better science

2/24/11 – Settlement reached over pump usage lasting until June

11/11 – Deadline for next Biological Opinion

The Litigants -- PG
 * Consolidated Plaintiffs || Involvement || v. || Defendants || Involvement ||
 * “The Growers” – Stewart and Jasper Orchards; Family Farm Alliance || Challenged the pumping restrictions imposed by the 2008 BiOp out of fear that a reduced water flow will injure them economically. While the plaintiffs may be economically impacted by the judge’s decision, most of their legal arguments have sought summary judgment on the grounds that the findings of the 2008 BiOp are arbitrary, capricious, and fail to utilize the best available scientific evidence. Some of these motions have been successful despite some setbacks. ||  || Kenneth Salazar || Secretary of the Interior; confirmed by the Senate on 1/20/2009; right leaning Democrat with mixed support from environmentalists; administrative head of the NFWS; represented by the Department of Justice ||
 * San Luis & Delta-Mendota Water Authority ||^  ||^   || National Fish and Wildlife Service (NFWS) || Issuer of the 2008 Biological Opinion or (BiOp) which wields coercive force over the San Joaquin Delta regulatory agencies (the SWP and CVP). Currently lists the smelt as “threatened” under the Endangered Species Act. The 2008 BiOp was the original impetus for restricting pumping during certain time periods as a method for smelt conservation. ||
 * State Water Contractors ||^  ||^   ||   || Judge Wanger has ruled that the NFWS indeed does have the power to make coercive recommendations to the regulatory agencies based on the federal government’s authority under the Endangered Species Act (ESA) and the Commerce Clause of the Constitution. ||
 * Coalition for a Sustainable Delta ||^  ||^   ||   ||   ||
 * Metropolitan Water District ||^  ||^   ||^   ||^   ||

**Delta Smelt Precedent (NB)**

 * There are a lot of cases cited in the Pro-Smelt case briefing but I tried to select the most important. They seem to rely mostly on Commerce Clause cases because that was the main challenge of the Pacific Legal Foundation.**

//Babbitt v Sweet Home Chapter of Cmties. for a Great Or.//
 * Upheld the regulatory definition of takes
 * Takes are any means to harass, harm, pursue hunt, shoot, wound, kill, trap, caputre, or collect, or attempt to engage in any such conduct
 * ESA is a valid exercise of Commerce clause power

//Wickard v Filburn//
 * Congress has the power to limit intrastate activity based on its aggregate effect on interstate activity.
 * Used to uphold the right to enforce the ESA in the case of the Delta Smelt

//National Association of Home Builders v Babbitt//
 * D.C. Circuit upheld the take prohibition to an endangered fly found only in two California counties
 * application of purely intrastate species of no immediate commercial value was nevertheless a class of activity that had a substantial effect on interstate commerce

//Hughes v Oklahoma//
 * Supreme Court held that states do not own the wildlife within their borders, and that state laws regulating wildlife are circumscribed by the Commerce Clause power

//Tulare Lake Basin Water Storage District et. al. v The United States// (2003)
 * A federal claims court case that awarded the plaintiffs just compensation plus the rate of interest for water losses arising from federal biological opinions issued pursuant to the Endangered Species Act

//San Luis & Delta Mendota Water Authority, et al., v Salazar// (2011)
 * The 9th Circuit affirmed Judge Wanger's decision that denied the Pacific Legal Foundation's Commerce Clause challenge to the Endangered Species Act's protection of the Delta Smelt

In 2009 US District Court Judge Oliver W. Wanger found the 2008 Biological Opinion to be flawed. The BiOp was changed in order to satisfy Wanger who still found it flawed in his December 2010 opinion on the case. In March 2011 he issued a statement that described what the federal agencies should do in order to fix the flaws he pointed out in his opinion. According to Wanger's opinion the Bureau of Reclamation violated the National Environmental Policy Act (NEPA) when it failed to consider the BiOp's impacts on the human environment. He also says that the Reasonable and Prudent Alternative (RPA) that the BiOp suggested as a solution to the problem of the endangered smelt should be revised to show the best science available. Wanger set a deadline for compliance for October 11, 2011
 * Brief Overview of Wanger's retaining jurisdiction on Consolidated Smelt Cases**

=**Legislation (BR)**= ====//Endangered Species Act 1973 (ESA)-// The ESA was passed under Nixon to protect endangered species from becoming extinct. This act protects endangered species as well as their habitats by requiring federal agencies, along with the U.S Fish and Wildlife Servie, to ensire that the actions that they authorize, fund or carry are not going to jeopardize the species or result in the destruction of its habitat.====

====//California Endangered Species Act-// The CESA defines an “endangered species” as “a native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant which is in serious danger of becoming extinct throughout all, or a significant portion, of its range due to one or more causes, including loss of habitat, change in habitat, overexploitation, predation, competition, or disease” (Fish and Game Code §2062) " However, CESA also allows for take incidental to otherwise lawful development projects. CESA emphasizes early consultation to avoid potential impacts to rare, endangered, and threatened species and to develop appropriate mitigation planning to offset project caused losses of listed species." [] ====

====//California Environmental Quality Act (In California Code of Regulations)-//Effective February 18,2011, requires that state and local agencies to state the potential impact of proposed activities or projects on the environment. Also under this code they must state potential alternatives to the project that would substantially reduce of even eliminate any environmental threat.====

=Delta Smelt Decline and Water Appropriation Rights and Depletion (JP)=

Doctrine of Prior Appropriation (Colorado Doctrine) ** · Applications were used in the late 1840’s by gold miners who diverted water from water sources that were far from the mines** ** · No person may own the water in from any body of water, but all persons, corporations, and municipalities may use it for beneficial use** ** · First user (senior appropriator) has right (priority) to its future use against later users (junior appropriators)** ** · To Create Water Right must establish an Appropriation** **a. Appropriation - diversion of water and its application to a beneficial use** **b. Beneficial Use – Irrigation, Mining, Industrial Application, Stock Watering, Domestic and Municipal Use, Non-Wasteful Economic Activities, Environment Dust control, Snowmaking**

2 Types of Water Rights (Doctrine of Prior Appropriation) ** 1. Direct Flow** **a. Measured in Cubic Foot of water per second of time (C.F.S)** **b. 1 C.F.S. = 449 Gallons Per Minute** **c. Appropriator may use water at this rate as long as water is physically available and is used for beneficial use** **d. Only the amount of water that was required for the specific use may be used by the appropriator. Ex. A farmer who needs water to fully irrigate a 40 Acre piece of land. Used to prevent waste** ** 2. Storage water** **a. Allows the owner of a reservoir to store certain amounts of water per year to use for later beneficial use** **b. Some restrictions may apply** **c. Storage Rates apply to only filling of the storage vessel per year**


 * Delta Smelt Population**
 * 1967-1982, Smelt population was at 800,000
 * Early 1980's, Smelt population declined more than 80%
 * Current estimates put the population of the smelt at 35,000 fish
 * Conservative analyses predict that there may be a 26-30% probability that the smelt population will drop to 800 fish in the next 20 years
 * Recent Decline due to the increased export of water by federal projects
 * Season Exports in the 2000's were 49% higher than they were in the early 1990's
 * Pump usage depletes the levels of turbidity (chemicals found in water that minimize clarity) in the water of the San Joaquin Delta
 * Smelt need turbidity to effectively feed without being preyed on by other species of fish (e.g. Inland Silverside); Inland Silverside also prey on the smelt eggs and larvae

 a. Population expected to increase from 4 million residents to 6 million residents by 2020  a. <span style="font-family: "Times New Roman","serif"; font-size: 12.0pt;">Los Angeles County-projected to grow from 18.6 million residents to 26 million by 2030 (U.S. Census Bureau)
 * <span style="font-family: "Times New Roman","serif"; font-size: 12.0pt;">Water Depletion Comparison between Australia and California **
 * <span style="color: #444444; font-family: "Times New Roman","serif"; font-size: 12.0pt;"> Satellite technology used by NASA, reports that over a 6.5 year period the groundwater supplies in Central Valley leaked away by an amount equal to 63% of the capacity of Lake Mead, the nation’s largest reservoir. <span style="font-family: "Times New Roman","serif"; font-size: 12.0pt;">
 * <span style="font-family: "Times New Roman","serif"; font-size: 12.0pt;"> Melbourne, Australia-Water reserves declined from 100% in 1997 to 30% 2010
 * <span style="font-family: "Times New Roman","serif"; font-size: 12.0pt;"> California-largest, and second fastest growing state in nation