Judge O’Niell grants one-year extension on preparation of remanded Delta smelt and salmonid biological opinions

gavel_scale_of_justice_400_clr_2880U.S. District Court Judge Lawrence J. O’Niell has granted another one-year extension for preparation of the remanded salmon and Delta smelt biological opinions for the state and federal water projects.  In making his ruling, Judge O’Niell believes substantial progress has been made thus far, however, in order to address concerns of some of the participants, brief four-month progress reports will now be required.

Background

The final amended judgment in the Consolidated Delta Smelt Cases in 2008 required the Bureau of Reclamation and the US Fish & Wildlife Service to complete revised biological opinions regarding the impact of the state and federal water projects on the Delta smelt by December of 2013.  A similar judgment in the Consolidated Salmonid Cases in 2009 required revised biological opinions for three salmonid species and two other aquatic species by April of 2016.

In December of 2012, the Bureau of Reclamation, the Department of Water Resources, the US Fish and Wildlife Service and the National Marine Fisheries Service petitioned the Court, requesting a three year extension to allow time for all parties to participate in the a Collaborative Science and Adaptive Management Program (CSAMP), thereby allowing all parties “the time needed to best utilize their resources to develop short-term actions and a long-term strategy for providing a sustainable water supply and successful ecosystem restoration in the Bay Delta Region in ways that are more effective for the short-term and long-term protection of ESA listed species” (Document 1080, 2012).  This program “includes a robust science-based and adaptive management process that will amplify the agencies' ability to address key issues by increasing the cooperation of relevant stakeholders and improving scientific understanding,” according to court documents.

In granting the three year extension, Judge O’Niell concluded that pursuing the CSAMP process “represented a solid step away from the pattern of litigation that has burdened the parties in recent years,” as well as “a potential mechanism to advance collaboratively scientific understanding in areas that have previously been the subject of intense dispute.”

However, Judge O’Niell also recognized that the process had not yet begun, and since no details were available at the time, and little assurance that the CSAMP process would proceed as envisioned.  Therefore, he granted a staged extension, requiring the parties to submit a status report by February of 2014.

The CSAMP process

After the judges ruling, the CSAMP program was organized into two groups:  a Policy Group consisting of the directors of the state and federal agencies as well as the directors or top managers of those entities involved in the litigation challenging the biological opinions, and a “Collaborative Adaptive Management Team” (CAMT) which was comprised of a mix of scientists and managers working under the direction of the Policy Group.  The goal of the process is to improve common understanding of the science by utilizing joint fact-finding, information sharing and collaboratively working together (Connor, 2013).

Since it's inception, the group has established a mission statement and operating principles, as well as identified three key priority topic areas for further study: Old and Middle River flow management and entrainment of Delta smelt, longfin smelt, and salmonids; fall outflow management for Delta smelt, and south Delta salmonid survival.  Work plans for these topics have also been prepared.

Although the report submitted to the court notes that strong disagreements still persist among members of the CAMT team, all members nonetheless strongly support collaborative science as a means of improving decision-making and reducing disagreements, provided accepted scientific standards are utilized.  The CAMT believes that the development of reliable information through collaborative, inclusive scientific studies will help reduce disagreements over time.  (CAMT Progress Report).

If successful, the CSAMP program could mean an entirely different path forward for science in the Delta, as well as provide an opportunity to test drive the recently adopted Delta Science Plan, the Delta Stewardship Council's effort to build an effective science-policy interface between scientists and decision makers.  As Valerie Connor, Co-chair of the CAMT, wrote in the 2013 Issue of the San Francisco Estuary & Watershed News:  “The CSAMP represents an opportunity to test, on a limited scale, the type of collaborative, integrated science described in the Science Plan, by implementing proposed actions and approaches outlined in the Science Plan. The CSAMP is a potential pilot for implementing the portions of the Science Plan that include adaptive management, conflict resolution, engagement of decision makers in setting research and monitoring priorities, and a governance structure similar to the one in the draft plan. The CSAMP could model how new information would be used to promote a reduction in the multiple stressors of endangered fish species, optimize habitat restoration designs, and provide reliability for State Water Project and Central Valley Project operations.” (Connor, 2013).

The ruling

The parties submitted the required one-year joint status report on February 18th, which summarizes the progress to date as well as future plans for the CSAMP process, and generally satisfies the Court that progress is being made.  The status report also provides the positions of the other parties involved in the process.  While all parties agree that some form of further extension is warranted, several of the plaintiffs have expressed concerns about the progress made, asserting that the process is already running behind schedule in four key areas.  They asked that additional requirements be imposed.

The Court believes substantial progress has been made in the so far in the process, and so does not find that the additional requirements requested are warranted at this time.  However, to address the Plaintiff’s concerns that the process continues to move forward, in granting the extension, the Court has ruled that the parties will submit very brief interim joint status reports every four months that will summarize the progress made, incorporate the position of all parties, but be no longer than four pages, inclusive of attachments and supporting documents.  The first brief report will be due to the court on June 14, 2014, and the second on October 14, 2014.

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