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4.I Water Resources
change and sea level rise, and the vulnerability of Delta levees’ to failure (refer to Chapter 4.S of
this EIR and Appendix I-1, Water Resources Technical Report for additional discussion related
to climate change and sea level rise, and Appendix I-1 for more discussion of levee issues). As
stated in the report, the 2007 SWP Delivery Reliability Report is distinguished from earlier SWP
delivery reliability reports by including estimates of the potential reductions to SWP delivery
reliability due to the pelagic organism decline (POD) and future climate changes.
The 2007 SWP Delivery Reliability Report includes CalSim II simulations that were
conducted to evaluate current (2007) SWP delivery reliability and incorporate actions to protect
the delta smelt as required by the federal court ruling in Natural Resources Defense Council, et
al. v. Kempthorne, Case No. 1:05-cv-01207-OWW-NEW. 38,39 As described in the report,
DPS. They also announced a new status review of the species through its entire range. On April 8, 2009, the
USFWS announced that the Bay-Delta population of longfin smelt does not meet the legal criteria for protection
as a species subpopulation under the federal Endangered Species Act. The USFWS simultaneously announced
that it is seeking additional information for a broader assessment of the longfin smelt that could lead to future
action, although no decision can be made before reviewing any new information.
38
On May 25, 2007, the United States District Court (Eastern District of California, Fresno Division) in Natural
Resources Defense Council, et al. v. Kempthorne, Case No. 1:05-cv-01207-OWW-NEW (Kempthorne) granted in
part the plaintiff’s motion for summary judgment and found that the USFWS’s 2005 BO on the impacts of the long-
term operations of the Central Valley Project (CVP) and the SWP on delta smelt was inadequate. In late June
2007, District Judge Oliver W. Wanger in Kempthorne heard and rejected Natural Resources Defense Council’s
and Earthjustice’s motion for a temporary restraining order to curb southbound water shipments at least
temporarily due to smelt issues. Judge Wanger ruled that the BO, consequently, must be remanded to the NMFS
and the U.S. Bureau of Reclamation for further consultation in accordance with law and that the U.S. Bureau of
Reclamation must continue to take no actions during reconsultation that make any irreversible or irretrievable
commitment of resources that forecloses the formulation or implementation of reasonable and prudent alternative
measures. On August 31, 2007, the court in Kempthorne issued an oral statement of decision granting a
preliminary injunction and remedial order to protect delta smelt until a new delta smelt BO was issued by the
USFWS. The decision, finalized on December 14, 2007, set interim operating limits for the joint SWP and CVP
operations and required new steps to monitor delta smelt. The Kempthorne requirements were triggered by
environmental conditions and the presence of specific delta smelt life stages and were focused on minimizing the
negative entrainment effects caused when the combined export pumping of the SWP and the CVP reverses the flow
in Old and Middle River (OMR). The decision required the USFWS to complete a new BO by September 15, 2008;
however, the USFWS requested and was granted a three-month extension to complete the BO. which was then
issued on December 15, 2008 (http://www.fws.gov/sacramento/es/documents/SWP-CVP_OPs_BO_12-
15_final_OCR.pdf). The new BO supersedes the operating parameters and requirements set forth in the interim
remedial order, but continues similar parameters and requirements. DWR estimates that water deliveries to cities,
farms, and businesses throughout much of the state will be reduced about 20 to 30 percent on average, but that cuts
could be even greater under certain hydrologic conditions (DWR News Release, December 15, 2008, Delta Water
Exports Could Be Reduced By Up to 50 Percent Under New Federal Biological Opinion; DWR Director Snow
Responds to Delta Smelt Biological Opinion). DWR, however, has not yet issued formal guidance regarding the
effects of this BO on SWP reliability.
39
Similar to the challenge to the delta smelt BO, a second BO, covering Sacramento River winter-run Chinook,
Central Valley spring-run Chinook, Central Valley steelhead and other aquatic species, issued in October 2004
by the NMFS, was challenged in Pacific Coast Federation of Fishermen’s Associations/Institute for Fisheries
Resources, et al. v. Gutierrez, Case No. 1:06-cv-00245-OWW-GSA. Subsequent to the initiation of this lawsuit,
the U.S. Bureau of Reclamation reinitiated consultation on the BO. On April 16, 2008, Judge Wanger issued a
summary judgment order in this case invalidating the salmon and steelhead BO, finding it unlawful and
(Footnote continued on next page)
County of Los Angeles Department of Regional Planning Skyline Ranch Project
PCR Services Corporation July 2009
Page 4.I-14
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