(March 19, 2009) The State Water Contractors, an association of 27 public water agencies and utilities that purchase water from the State Water Project (SWP), filed suit on March 3 against several federal government entities to challenge new regulatory restrictions on state water operations.

The restrictions stem from a biological opinion developed by the U.S. Fish and Wildlife Service for the Delta smelt, an endangered species of fish that lives in the Sacramento-San Joaquin Delta.

Other federal agencies named in the lawsuit include the U.S. Department of the Interior and the U.S. Bureau of Reclamation.

The water contractors are asking the court to stop the federal agencies from restricting higher volumes of pumping for the SWP and also to compel the Fish and Wildlife Service to revise the 2008 biological opinion to consider all available science and data.

The new regulatory restrictions, adopted in December 2008, are a response to U.S. District Court action dating to May 2007, when Judge Oliver W. Wanger of the California Eastern District cut allocations from the SWP to protect the Delta smelt.

In April 2008, the judge found that the biological opinion for the Delta smelt was flawed based on the conclusion of the National Marine Fisheries Services that water diversions for the SWP were killing the smelt. The judge ordered that the biological opinion be rewritten.

The December 2008 guidelines severely reduce the ability of the SWP and federal Central Valley Project (CVP) to deliver water to the 25 million Californians and 3 million acres of farmland that they normally serve.

Late last month, the U.S. Bureau of Reclamation announced that Central Valley farms will receive none of their normal allocation of water from the CVP due to serious drought conditions and the bureau’s regulatory guidelines that prioritize allocation of water for the CVP.

Scientific Data Missing

The lawsuit argues that the Fish and Wildlife Service failed to make use of the best science and data available when drawing up the biological opinion. The water contractors contend that the service was aware of other factors contributing to the decline of the Delta smelt population, such as invasive species, toxic runoff from pesticides and waste treatment plants, and non-native predator fish introduced for sport fishing, but did not explore these factors while developing the biological opinion.

The lawsuit states that while “project pumps do take some Delta smelt, the best available scientific data show that this take, and other project effects, do not have population level effects on the Delta smelt.”

Instead, the lawsuit contends, these factors were dismissed in favor of a biological opinion model that attributes the declining Delta smelt population to SWP pumping alone.

If the court grants an injunction, SWP pumping operations could continue pending a revision to the 2008 Delta smelt biological opinion.