{"id":599,"date":"2025-01-23T18:34:00","date_gmt":"2025-01-23T22:34:00","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/?p=599"},"modified":"2025-01-24T10:52:55","modified_gmt":"2025-01-24T14:52:55","slug":"how-the-delta-smelt-swam-into-a-political-firestorm","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/2025\/01\/23\/how-the-delta-smelt-swam-into-a-political-firestorm\/","title":{"rendered":"How the Delta Smelt Swam Into a Political Firestorm"},"content":{"rendered":"\n

by Michelle C. Pardo<\/strong><\/p>\n\n\n\n

Southern Californians have been reeling from the devastation caused by the recent record-breaking wildfires and now face the daunting task of rebuilding their lives.  As is the case in the wake of many disasters, a need for answers and accountability as to what caused or contributed to the disaster remains paramount.  Just days after the fires started, headlines suggested that a small, nondescript fish \u2013 the Delta smelt (Hypomesus transpacificus<\/em>)  is to blame for the Palisades and other Los Angeles area wildfires.  Did environmental protections for the Delta smelt really cause a statewide water crisis?  Or is the Delta Smelt blame game but a fishy theory that has become a political football?<\/p>\n\n\nRead more: How the Delta Smelt Swam Into a Political Firestorm<\/span><\/a>\n\n\n

\"\"<\/a><\/figure>\n\n\n\n

The Delta smelt is a 2-2.8 inch long fish that lives in the Sacramento-San Joaquin River Delta \u2013 a place that has been the center of the fight over water in California.  Once present in abundance, the smelt began its decline around the mid-20th<\/sup> century and is now nearing extinction.  Most Delta smelt live for only one year and even temporary environmental conditions can greatly affect their population.  The largest impact on the fish has occurred after extended periods of drought, which increased the need for California\u2019s cities and farms to pump more delta water \u2013 leaving the fish with less fresh, cold water.  Other threat factors include disease, competition (including with invasive clams and mussels that were introduced to the river) and predation.  Additionally, pumps operated by the state and federal government can suck smelt and other fish into the system. <\/p>\n\n\n\n

The Delta Smelt\u2019s Protections<\/strong><\/p>\n\n\n\n

The listing of the Delta Smelt \u2013 first, in 1993 as threatened under the federal Endangered Species Act (ESA) and the state analog, California Endangered Species Act (CESA), and later uplisted to endangered in California (2010) \u2013 affects how much water can be pulled from the delta.<\/p>\n\n\n\n

When listed as threatened or endangered under the federal ESA, several protections kick in.  The ESA makes it illegal to import, export, take, posses, sell or transport an endangered species.  16 U.S.C. \u00a7 1538.  It also provides that land or water necessary for the survival of the species may be designated as \u201ccritical habitat.\u201d  While the designation of critical habitat does not prevent all development or other activities in a designated area, activities that involve a federal permit, license or funding and are likely to destroy or adversely modify critical habitat, must undergo analysis and amendments to the project to proceed without adversely affecting critical habitat.  Highly-charged disputes often occur when the government uses controversial or methods not ground in accepted science to assess what areas are actually occupied by the species and what physical and biological features a species needs to survive.<\/p>\n\n\n\n

According to the U.S. Fish and Wildlife Service, \u201cAn area may be excluded from critical habitat designation based on economic, national security, or other relevant impacts. In some cases, we may determine that the benefits of excluding it outweigh the benefits of including it.\u201d  https:\/\/www.fws.gov\/sites\/default\/files\/documents\/critical-habitat-fact-sheet.pdf. <\/a><\/p>\n\n\n\n

While an oversimplification of a complex issue, this is where the competing interests of those cities and farms that have a desperate need for water come head to head with the needs of the Delta smelt and other fish endemic to California to survive. <\/p>\n\n\n\n

Swimming Into Political Controversy<\/strong><\/p>\n\n\n\n

California\u2019s water management policies have long clashed with environmentalists, agricultural interests and urban planners.  Why?  As it turns out, water is universally necessary, but agricultural, fishing, municipal and wildlife uses all have different priorities. <\/p>\n\n\n\n

During President Trump\u2019s first Administration, new rules would have allowed farmers to access more water from California\u2019 s largest river systems.  Environmentalists claimed it would push the Delta smelt and other species to the brink of extinction.  In 2019, two federal agencies issued biological opinions under the ESA that despite finding federal action would not jeopardize listed species, the water projects actually reduce protections for the species and their critical habitat in contravention of the ESA and its purpose.  An ESA biological opinion \u2013 required when a federal agency is authorizing, funding or carrying out an action \u2013 is a document that analyzes how a proposed action may impact listed species and critical habitats.  16 USC \u00a7 1536(a)(2).  If the federal action is likely to harm or jeopardize the listed species, the government may propose alternatives that will minimize the effect on the listed species, or scrap the project.   16 USC \u00a7 1536 (b)(1)(3)(A).<\/p>\n\n\n\n

In 2020, California sued the federal government, alleging that the biological opinions \u201cfailed to take a \u2018hard look\u2019 at the environmental impacts of planned the federal water project.\u201d  The lawsuit further alleged:<\/p>\n\n\n\n

The Central Valley Project harms ESA-listed fish species in the Sacramento River and San Joaquin River watersheds by, for example, directly taking fish at the project\u2019s South Delta pumping facility, redirecting fish from their migratory pathways, and altering the species\u2019 natural habitat. Habitat alterations resulting from project operations include changes to river flow, hydrology, salinity, and water temperature.<\/strong><\/em><\/p>\n\n\n\n

Becerra v. Ross et al<\/em>., No. 3:20-cv-01299 (N.D. Cal) at p. 8.<\/p>\n\n\n\n

The Trump Administration described the lawsuit as a \u201ccatastrophic halt\u201d of \u201cenormous amounts of water to flow from the snow melt and rainwater in rivers in North California to beneficial use in the Central Valley and Southern California.\u201d <\/p>\n\n\n\n

Fast forward to January 7, 2025, when parts of Southern California was hit with the most devastating wildfires on record.  The wildfires \u2013 and what contributed to them \u2013 has revived this contentious debate.  The Delta smelt \u2013 previously described by President Trump as \u201can essentially worthless fish\u201d was targeted as the culprit for why farmers and cities had limitations on the amount of water they could receive. <\/p>\n\n\n\n

But in addition to the water needed by farmers and major cities, endangered and threatened species like the Delta smelt require their own flow of fresh water, known as \u201coutflow.\u201d  Without the needed outflow, salt water can move upstream making the delta waters too brackish and potentially harm certain species of fish.  To counter this risk, water must be allowed to flow out of the system.  The flows needed to protect the region\u2019s ecosystem \u2013 which help support migration and spawning of delta smelt, salmon, longfin smelt and other fish species, – account for about 10% of all available flows.  Some have called the wildlife-protection outflow as having an insignificant role in water projects. <\/p>\n\n\n\n

Governor Newsom\u2019s office rebuffed President Trump\u2019s claims, denying that President Trump ever asked him to sign a \u201cwater restoration declaration\u201d and others insist that the Delta smelt is not the source of the controversy regarding water projects.<\/p>\n\n\n\n

On January 20, 2025, just hours into his second term, President Trump signed an executive order directing federal agencies to route more water from across the state.  In a Memorandum to the Secretary of Commerce and the Secretary of the Interior titled: \u201cPutting People over Fish: Stopping Radical Environmentalism to Provide Water to Southern California\u201d  https:\/\/www.whitehouse.gov\/presidential-actions\/2025\/01\/putting-people-over-fish-stopping-radical-environmentalism-to-provide-water-to-southern-california\/<\/a>, President Trump directed the Secretaries of Commerce and Interior to:<\/p>\n\n\n\n

 \u201cimmediately start\u201d the work from his first Administration to \u201croute more water from the Sacramento-San Joaquin Delta to other parts of the state for use by the people there who desperately need a reliable water supply.\u201d  <\/strong><\/em><\/em><\/p>\n\n\n\n

The Memo requires the Secretaries of Commerce and the Interior to report to the President regarding progress made in implementing policies in the memo and providing recommendations regarding future implementation.<\/p>\n\n\n\n

Governor Gavin Newsom and others in California regulatory agencies have disputed that the Delta smelt and its environmental protections are to blame for water shortages in the state (while also disputing the fact or extent of water shortages in the first place). \u00a0Some scientists insist that hydrology and outflow to ensure freshwater for human use has much more<\/em> of an effect on the projects ability to deliver water than the current ESA safeguards.\u00a0 Regardless of who is right, President Trump has suggested that federal disaster aid to recover from the wildfires may be conditioned upon California cooperating with federal government water policies, making it difficult for the state to cling to existing water policy.<\/p>\n\n\n\n

One thing remains clear: as urban development continues, and natural resources grow scarce, the clash between a state or municipality\u2019s ability to deliver necessary resources in a manner that does not risk extinction of threatened or endangered species will likely continue.<\/p>\n\n\n\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

by Michelle C. Pardo Southern Californians have been reeling from the devastation caused by the recent record-breaking wildfires and now face the daunting task of rebuilding their lives.  As is the case in the wake of many disasters, a need for answers and accountability as to what caused or contributed to the disaster remains paramount.  … <\/p>\n

Continue reading “How the Delta Smelt Swam Into a Political Firestorm”<\/span><\/a><\/p>\n","protected":false},"author":318,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[1066,987,1059,1054,866,1053,1055,6,24,1062,1061,175,42,1063,1064,1056,1057,1065,1060,1058],"ppma_author":[698],"class_list":["post-599","post","type-post","status-publish","format-standard","hentry","category-general","tag-becerra-v-ross","tag-biological-opinion","tag-california-water-policy","tag-california-wildfires","tag-cesa","tag-delta-smelt","tag-endangered","tag-endangered-species-act","tag-esa","tag-essentially-worthless-fish","tag-gavin-newsome","tag-michelle-c-pardo","tag-michelle-pardo","tag-putting-people-over-fish","tag-radical-environmentalism","tag-threatened","tag-trump-administration","tag-water-law","tag-water-lawsuit","tag-water-policy"],"authors":[{"term_id":698,"user_id":318,"is_guest":0,"slug":"mcpardo","display_name":"Michelle Pardo","avatar_url":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-content\/uploads\/sites\/38\/2018\/06\/pardomichelle-125x150.jpg","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts\/599","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/users\/318"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/comments?post=599"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts\/599\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/media?parent=599"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/categories?post=599"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/tags?post=599"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/ppma_author?post=599"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}