Consolidated Delta smelt and salmonid cases update: Agencies argue their case for an extension of time

Last Friday, the Department of Water Resources and the federal fish agencies filed their brief in Fresno supporting their request for a three-year extension of the remand schedule for the new biological opinions in order to implement a collaborative science and adaptive management program (CSAMP).  The Court had initially denied the request at the end of January, but gave the agencies time to respond with additional details.

In the court documents, the federal agencies say they are prepared to meet the remand schedules and produce biops that will meet all applicable legal requirements, but these are not likely to be without legal challenge:

” … the collaborative CSAMP process is critical to breaking the current Section 7
consultation/litigation cycle over CVP and SWP operations.  Breaking this litigation cycle will allow the agencies to focus limited resources in ways that are most effective for the short and long-term protection of ESA listed species. Because the CSAMP aims to avoid further litigation over the CVP and SWP BiOps and NEPA analyses, it provides a significant benefit to the public interest.

The CSAMP aims to avoid further litigation by improving scientific understanding over the long-term, and using new information gained from this process in implementing, and adaptively managing, the existing RPAs within the BiOps over the short-term. By improving scientific understanding while simultaneously increasing the participation of stakeholders, the CSAMP is not only intended to lead to less litigation, but also more effective protection of ESA-listed species over both the long and short run…. “

Moreover, the documents argue the increased scientific understanding that will come from CSAMP will make the remand biops more “robust”.

The agencies acknowledge that not all of the specific details of CSAMP have been developed yet, but the process will follow standardized and generally-accepted protocols and will likely utilize a nine-step process similar to that descirbed in the Delta Stewardship Council’s draft Delta Plan:

“The agencies recognize that the CSAMP is a fledging effort, but believe it holds the mostpromise for developing collaborative joint science that can be utilized in multiple processes. The Federal agencies learned through rounds of litigation that the courtroom is not the appropriate place to test scientific hypotheses and seek collaborative solutions. They believe that this fledgling effort needs time to develop to draw formerly adversarial parties from their respective corners to work together.”

The BDCP has undergone significant changes, and the agencies expect significant science will come from the process:

“The BDCP anticipates a full suite of scientific research in order to refine the operational criteria for the proposed Delta conveyance facility, and to implement other conservation measures. This scientific research includes work to be conducted through CSAMP. This collaborative science would include:

  1. scientific research considering salinity metrics such as Delta outflow and the delta smelt;
  2. research addressing the factors affecting salmonid survival during their migration through the Delta;
  3. research regarding delta smelt and turbidity conditions; and
  4. the development of life-cycle models for both the delta smelt and the Central Valley salmonids.

As is apparent, these scientific endeavors overlap with the science relevant to NMFS and FWS in preparing the remanded BiOps. While scientific research on complicated biological issues is never fully complete and finalized, DWR anticipates that, if the collaborative efforts are allowed to move forward in a timely fashion, meaningful data and information on these topics will likely be forthcoming during the 2014-2016 time period. Such research could therefore provide scientific benefits to NMFS and FWS in the reconsultation process, but only if the current deadlines in the BiOp judgments are extended.”

Those are just the highlights.  Read the rest of the documents here:

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