Image by Ken Lund via Flickr Creative Commons

New Public Trust Lawsuit to Protect Delta Fishery Filed

By Lloyd G. Carter

A coalition of fishing and environmental groups has filed a Public Trust suit in Sacramento County Superior Court alleging the State Water Resources Control Board (Water Board) and the California Department of Water Resources (DWR) have mismanaged the public’s water supply, causing a continual decline of the Bay-Delta ecosystem, including salmon.

Under the California Constitution, Article X, Section Two, and the state water code, unreasonable use of water is outlawed. Under the Public Trust doctrine, the Water Board and DWR officials have an affirmative duty to protect aquatic ecosystems in the state when pumping millions of acre-feet from the Delta each year. Several species of Delta fish, including salmon, are either endangered or threatened under both state and federal law.

The California Water Impact Network (C-WIN), the California Sportfishing Protection Alliance (CSPA) and AquAlliance, the plaintiffs in this case, are asking the court to issue a writ of mandate to set aside two Water Board decisions in 2010 that have allowed the DWR to evade salinity standards in the Delta, along with other terms and conditions of their water rights and permits.

“California’s regulation of its public trust resources and water quality is remarkably similar to federal regulation of the financial and real estate markets. Regulators in both cases went AWOL. The public is left with collapsed fisheries, bankrupt aquatic ecosystems and toxic waters for the taxpayers to clean up,” said CSPA Chairman and Director Bill Jennings.

“The complete failure of the State Water Resources Control Board to enforce its own laws, regulations and decisions has left us with no alternative but to turn to the courts to prevent the total loss of our historic fisheries.

“The State Water Board consistently submits to political pressure to avoid enforcing the law,” asserted Jennings. “They make their decisions based on politics, not science and law.”

“This is the Delta watershed’s version of the Mono Lake case of the 1970s and 1980s,” added Barbara Vlamis, executive director of the Chico-based AquAlliance, dedicated to protecting Northern California’s water supply, including water for north state family farmers. Vlamis added, “These two state agencies charged with protecting California’s public trust resources must be forced to comply with the law. They have consistently demonstrated that they are incapable of enforcing existing law and protecting the public trust.”

The suit specifically contends the DWR pumping station near Tracy in the south Delta kills many thousands of Delta smelt, young salmon and other species every year and is the main threat to Public Trust resources in the Delta.

A recent Delta flow report adopted by the Water Board acknowledged that more freshwater is needed in the Delta to protect dwindling fish populations. Environmentalists say a 2012 $11 billion bond measure to build a canal/tunnel to funnel Sacramento River water around the Delta would lead to even further exports from freshwater needed if the Delta fishery is to survive.

The lawsuit also alleges the Water Board and the DWR have failed to comply with state water quality laws, failed to enforce and comply with the flow and water quality requirements of the Water Board’s water rights Decision 1641, adopted in 1999, and failed to comply with the fish doubling standard in the Water Board’s 1995 Water Quality Control Plan.

The DWR has increased its Delta water exports since 2000 by 53% over the average of 2.1 million acre-feet it exported in the 1990s. The lawsuit alleges that when Delta pumping dramatically increased, Delta fish populations of salmon, striped bass, Delta smelt and other listed and unlisted species collapsed, despite runoff in 2006 reaching 173% of normal. Much of the increase in exported water is labeled as “excess” by the DWR and exported from the Delta as “surplus” under contracts with irrigation districts in Kern and Kings counties and water agencies south of the Tehachapi Mountains.

“Our state government continues to turn a blind eye to the public trust and the State constitution,” said Carolee Krieger, president and executive director of C-WIN. “We have no choice but to petition the court to force the State Water Board and DWR to comply with State water laws and the State constitution.”

Western San Joaquin Valley growers bitterly complained during the recent drought that there were dramatic cutbacks in their water supplies as a result of efforts to restore the Delta fishery. But a new report by the Center for Irrigation Technology at Fresno State said a 1992 federal law to double Delta fish populations, and settlement of a lawsuit over restoration of the Trinity River in Northern California, caused only a 5.6% reduction in water supplies for agriculture.

The Fresno State report also said California farmers are operating at near maximum efficiency but that groundwater overdrafting by agriculture “continues to be a serious problem in certain regions of California.”

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Lloyd G. Carter has been writing about California water issues for 40 years. His Web site is www.lloydgcarter.com.

  • Mike Rhodes is a writer for the Community Alliance newspaper and author of the book Dispatches from the War Zone, about homelessness in Fresno. www.mikerhodes.us is his website. Contact him at mikerhodes@comcast.net.

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