By Dennis L. Taylor
A federal court in San Francisco on Thursday ruled in favor of ongoing environmental protections for endangered delta smelt, a far reaching ruling that the attorney who litigated the case said would have implications for any challenges to the protection of steelhead trout in the Salinas River.
The Court of Appeals for the Ninth Circuit ruled that a “biological opinion” issued in 2008 to protect the delta smelt will stand without alteration, safeguarding the habitat of a species on the brink of extinction. The phrase “biological opinion” is key, because in the case of the ongoing debate over the practice of clearing the Salinas River channel of brush, sandbars and debris to prevent flooding, federal regulators have made clear that plans to continue the practice as proposed so far will run head-on into the Endangered Species Act.
The agency charged with protecting steelhead is the National Marine Fisheries Service, which is under the umbrella of the National Oceanic and Atmospheric Administration. When the Monterey County Water Resources Agency developed a plan to continue river-channel clearing last year, NOAA Fisheries issued an opinion that the plan failed to meet the needs of steelhead.
“NOAA Fisheries believes the proposed Salinas River Stream Maintenance Project may adversely affect (regional) steelhead and their habitat,” the agency wrote about the plan. “(NOAA Fisheries) believes the Stream Maintenance Program is not protective of steelhead and their habitat and is not sustainable.”
Even if all debris was removed, and the river flowed at a man-made rate and capacity, it would run headlong into the problem of steelhead migration and NOAA Fisheries. The once-popular sport fish in streams and rivers up and down California — their numbers have now dwindled dangerously low – use the Salinas River to navigate up to their spawning grounds in the Arroyo Seco River. If the channel is cleared, and water is moving too fast, the steelhead will not be able to rest to make headway against the current.
NOAA Fisheries cannot issue or deny permits to conduct channel maintenance, but the U.S. Army Corps of Engineers can. It is a permitting agency for the Salinas River, and both agencies have made clear that the Corps will not permit clearing if NOAA fisheries issues a biological opinion that to do so would endanger the recovery of the Pacific steelhead trout in the Salinas. The Army Corps would in turn issue a “biological jeopardy” opinion that would put the kibosh on any plans to clear the river bed.“The delta smelt has become the canary in the coal mine,” said Trent Orr, the Earthjustice attorney who litigated the case in front of the three-judge panel. “By the same token, you have listed species in the Salinas River that now have a high bar of protection under the Endangered Species Act.”
Orr represented the National Resources Defense Council and The Bay Institute. The decision preserves science-based guidelines for managing water flows through the San Francisco Bay-Delta at levels that protect the imperiled fish and help to restore the Delta ecosystem.
Thursday’s opinion reverses a lower court’s decision that would have invalidated several of the water pumping limits and other protections established under the biological opinion.
“It prohibits anyone from taking any endangered species,” Orr said. “And that includes altering a habitat that allows for healthy breeding and feeding of a species. It’s one more indication of the power of the Endangered Species Act.”