Family Farm Alliance Calls for Withdrawal Of Biased, Unscientific Order for Delta Smelt

(Klamath Falls, Oregon - July 13, 2009). Declaring that fifteen years of failure is enough, the Family Farm Alliance (Alliance) has filed suit to force the withdrawal of the federal government's latest order cutting back California's water supplies on behalf of the delta smelt. The order issued by the U.S. Fish and Wildlife (USFWS) does not meet the Endangered Species Act's standards for quality of data and scientific integrity according to the suit filed on Friday with the U.S. District Court for the Eastern District of California. "Fortunately the Endangered Species Act (ESA) sets strict standards to protect the public and the environment from biased and unscientific abuses of its provisions," said Dan Keppen, Alliance Executive Director. "We are taking this action to protect the integrity of ESA and to ensure that those standards are applied to correct the federal government's unmitigated record of failure in the Delta."

For the past 15 years, federal regulators have ordered more and more stringent restrictions on the water supplies pumped through the Delta to serve California's farms and cities, on the presumption that the pumps were harming delta smelt. Those restrictions have cost California billions of dollars in economic losses and tens of thousands of jobs. But instead of showing any benefit from these measures, the population of delta smelt has continued to decline.

Among the many defects in USFWS's December order, which reduced by one third the state's water supplies to more than 25 million people, the Alliance pointed out that:

Instead of conducting the independent peer review that the law requires, USFWS brought in the authors of the papers on which the agency's order was based. In effect, they were being asked to review the adequacy of their own work. None would qualify under the standards set by ESA, the Information Quality Act or the federal Office of Management and Budget guidelines.

Although ESA requires USFWS to use the best available scientific and commercial data, the agency instead based its findings in part on an analysis which had not been published or peer reviewed and, supposedly, data, which USFWS refused even to disclose. Moreover, it turns out the agency did not actually possess some of the data that it claimed it used to order the cutbacks in water supplies.

Rather than relying on scientific evidence to form its conclusions as the law requires, USFWS only cited the bits and pieces of information that supported its own assumptions and ignored the rest.

The Alliance is not alone in questioning the integrity of USFWS's smelt order. The California Department of Water Resources has formally asked that it be withdrawn for reconsultation and revision. DWR says there is new information on better ways to protect the smelt that was not considered in the existing order.

And the federal court recently granted a temporary injunction against USFWS' order on a complaint that the order violated the National Environmental Policy Act because the federal government failed to prepare an environmental impact statement. Instead the order was drafted in secret and put into effect without any public hearings or review.

At a recent town hall meeting in Fresno, where area congressmen, business leaders, landowners and farmworkers criticized the order's scientific inadequacy, U.S. Secretary of the Interior Ken Salazar declined to defend USFWS' action, pointing out that these cutbacks in water supplies had been the work of the previous administration.

"President Obama and the leadership in Congress have declared their commitment to upholding the standards and bringing the best science to bear on governmental decision making," said Keppen. "We applaud their commitment and call on them to live up to that promise by withdrawing this flawed and fallacious order now, before it does any more harm."

Numerous scientific studies have identified multiple causes for the delta smelt's decline, including ammonia discharges from Sacramento and other industrial pollution, temperature changes, and invasive non-native species that are devouring the smelt's food as well as the smelt themselves.

"USFWS has refused to analyze these other factors and their importance, sticking instead to their assumption that pumping must be the problem," Keppen said. "But if anything, their failure to produce any benefits for the smelt over the last fifteen years should demonstrate that the pumps are not the problem."

According to analyses prepared by the University of California, federal restrictions on pumping water through the Delta, combined with the ongoing effects of drought, cost California's Central Valley economy more than $300 million in 2008 and nearly $1 billion this year. The economic impacts statewide are much greater.

"These are critical issues for the members of our alliance," Keppen pointed out. "More than 300,000 acres of productive farmlands have been fallowed because of these cutbacks. Rationing is being imposed in many California cities. Our membership includes farmers but we also represent irrigation districts, commodity associations, private water companies, and suppliers of a wide range of farm-related services and equipment. We are all being hurt by these federal cutbacks in water deliveries."

The Alliance brought its concerns with the adequacy of the data used for this order to the attention of USFWS as soon as the order was released in December, 2008. But USFWS has so far refused to address these problems or correct the order. The Alliance has now exhausted all of the opportunities for administrative relief.

"This is the first time that the Alliance has engaged in litigation, and it's not a step we take lightly," said Alliance President Patrick O'Toole. "But in this case, we had no other choice. "Preserving the scientific basis for these decisions and ensuring the fairness and transparency of all the proceedings under ESA is a vitally important issue for all of our members throughout the western states."

The Family Farm Alliance is a grassroots organization of family farmers, ranchers, irrigation districts and allied industries in 17 Western states. The Alliance is focused on one mission: To ensure the availability of reliable, affordable irrigation water supplies to Western farmers and ranchers. For more information on the Alliance, go to www.familyfarmalliance.org