Conflict seen in smelt rules

Water users who benefit most from tapping the Sacramento-San Joaquin Delta have been given an unprecedented role in drafting new rules to manage water diversions.

Critics call it a "fox in the henhouse" situation that may further imperil the Delta, where experts believe water diversions have already contributed to a broad ecosystem collapse.

The new draft rules, called a biological assessment, are being prepared in response to a court order last year. Federal Judge Oliver Wanger in Fresno declared existing rules inadequate to protect the threatened Delta smelt. He set a Sept. 12 deadline to rewrite the rules.

The U.S. Bureau of Reclamation, which operates one of two Delta water systems, is a defendant in the case. The bureau allowed water contractors to help write new diversion rules. Wanger, in his ruling, didn't specify who should rewrite the rules.

The decision also applies to its co-defendant, the state Department of Water Resources, which operates the other diversion system, and its contractors.

"It indicates to me the agencies are still continuing to view the Delta as a big faucet, and their main concern is simply water supply," said Kate Poole, an attorney at the Natural Resources Defense Council, one of the environmental groups suing the agencies. "They should be opening the door to many more interested parties, not just the ones who have a financial interest in harming the smelt."

Water contractors are urban and agricultural agencies that sell Delta water to farms and cities from San Jose to San Diego. They include small-scale diverters and big players such as the Metropolitan Water District of Southern California and Westlands Water District.

The water agencies said their participation is legal and appropriate under the Endangered Species Act, which governs the process. They said they offer unique expertise because they know the pumping systems well.

They also note that the diverters have a limited role. For instance, they cannot consult directly with the U.S. Fish and Wildlife Service, which must approve the new rules to ensure smelt won't be harmed.

"There's a place at the table for these folks, and they're allowed to be there," said bureau spokesman Jeff McCracken. "So far, they've been involved in a very broad area looking at everything."

Fishing and environmental groups asked to participate and were denied, McCracken said, because there isn't time for more players to be involved.

"It calls into question whether or not this report is going to be unbiased," said Sen. Mike Machado, D-Linden, a frequent critic of water operations and chairman of the Senate Subcommittee on Delta Resources.

The 740,000-acre Delta is the largest estuary on North America's Pacific Coast. It is a vast mixing zone for fresh and salt water that was once among the world's most productive fisheries.

A century of dam building, development and diversions caused a gradual decline that worsened in the last five years.

Nine Delta fish species are in steep decline, and toxic algae blooms have become more common. The latest victims are fall-run chinook salmon.

Biologists haven't pinpointed the cause but believe several factors are involved, including ocean conditions, foreign species, poor water quality and excessive water diversions.

Delta water diversions serve 25 million people and 2 million acres of farms.

This is partly why water diverters believe their role in the rule-making is appropriate: They understand the broad benefits provided by the Delta.

"We are trying to make sure the information that Reclamation and DWR put together is not too narrow, that it is a full vetting of the picture that's out there," said Curtis Creel, water resources manager at the Kern County Water Agency, who represents state water contractors in the rule-drafting process.

The new rules amount to a proposal for operating Delta pumps to satisfy the Endangered Species Act and the court. The Fish and Wildlife Service will review and modify the proposal to ensure water exports do not jeopardize smelt.

Alex Pitts, Fish and Wildlife Service spokeswoman, said the agency is not worried about the diverters' role.

"We're more focused on good information, not necessarily who has it," she said. "It's not something just handed over in a package saying 'You have to view this as truth.' There's a process there for reviewing this information."

Developing the proposal is complex. It requires key decisions early on about how the smelt behave and what environmental factors matter. The review also must go beyond the pumps and consider upstream reservoirs that determine how much water flows through the Delta.

Many of the decisions will help computer models draft operating rules.

"One of the things we have been trying to do is assist the agencies with describing the project," said Creel. "In other words, what are the various parts of it and what would be the types of assumptions used in the modeling analyses."

Poole, the environmental lawyer, said modeling can obscure initial decision-making and skew the results. The process is not public, so there is no opportunity for others to examine choices made.

She said Wanger's ruling rejected an approach to pumping that had favored water diverters at the expense of fish. "I don't think it bodes well," she said, that those diverters are now helping draft new rules to protect fish.

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