U.S. District Court Judge Lawrence O’Neill refused to give the federal fishery agencies more time to revise their plans for the protection and recovery of Delta smelt, along with winter and spring-run chinook salmon, that reside in or migrate through the San Francisco Bay-Delta estuary. O’Neill’s predecessor on the federal bench, Judge Oliver Wanger, had ordered modification to the Bi-Ops that were initially put in place following a 2007 Wanger decision finding State and Federal pumping of freshwater from the Delta was harming the fish species protected under the Endangered Species Act. The pumping was also the proximate cause of the collapse of Central Valley fall-run chinook stocks and the resultant closure of most salmon fishing along the Pacific Coast in 2008 and 2009. Judge Wanger recently retired.

The litigation against the increased level of Delta pumping was initiated in 2004 following a political decision by the agencies to overrule their scientists and rule that the diversion at the two pumping facilities at the southern end of the estuary would “not harm” the protected fish species. Two different lawsuits were then filed; one by conservation and sportfishing groups against USFWS over the delta smelt, and a second by fishing and conservation groups (PCFFA, et al. v. Gutierrez) against NMFS over the salmon. Plaintiffs are represented by Earthjustice and the Natural Resources Defense Council (NRDC). The matter has been in court since 2004, with Wanger’s 2007 decision in favor of the plaintiffs and subsequent appeals by the water contractors and water agencies.

Under the schedule that had previously been set up by Judge Wanger, USFWS has until 1 December 2013 to revise its Delta smelt Bi-Op, and NMFS has until 2016 to submit a modified salmon Bi-Op to the District Court in Fresno. Defendant government agencies had sought the delay claiming they were strapped for resources because of staff assigned to work on the Bay-Delta Conservation Plan (BDCP), a massive water project also proposed for the Delta – one that could take even more water south – under the rubric of being a habitat conservation plan (HCP) pursuant to the ESA. Plaintiffs opposed any delay.