Patrick Porgans & Associates and the Law Office of Joel C. Baiocchi announced Thursday, June 11, that they are filing a sixty day notice of their intent to sue federal and state officials and culpable parties for killing tens of millions of listed salmonid and other species in the Delta export pumping plants. Here's the news release from Patrick Porgans:
PRESS RELEASE – Sixty Day Notice of Intent to Sue Officials for Killing Fish Filed
June 11, 2009
Patrick Porgans & Associates, (916) 543-0780 or email porgansinc [at] sbcglobal.net
Law Office of Joel C. Baiocchi (530) 389-9175 or jcblaw2 [at] colfaxnet.com
Government officials are driving Californians deeper in debt, after borrowing billions of dollars in a failed attempt to double fish populations. Conversely, the record shows that Department of Water Resources and U.S. Bureau of Reclamation officials have killed tens-of-millions listed salmonid and other species, at their Delta water export project pumping plants, and got paid in the process and are not being held accountable for their actions.
The Law Office of Joel C. Baiocchi formally notified federal and state officials of Porgans & Associates, Inc. intent to sue officials, and culpable parties (non-governmental organizations, water contractors and other collaborators) responsible for failing to provide water for fish and for violating the provisions of the federal Endangered Species Act “Take.
Three years ago, P&A initiated an independent research assessment of government‟s role in declining salmonid populations throughout the Golden State. This week Baiocchi‟s firm submitted a 79-page, Sixty Day Notice of intent to sue, outlining in detail officials‟ collective and unrelenting failure to provide water for fish and revealing the inherent conflicting roles they play, as regulators, water purveyors and Public Trustees.
Patrick Porgans, a solutionist, and long-time advocate of Public Trust protection and government accountability, stated, “Based on the information obtained from “official” sources, the salmon collapse is not the result of natural phenomenon, it is the direct result of a government-induced disaster which has been in the making for decades. The crux of the matter is premised on the fact that government is required to provide water for fish; they have simply failed to do so, and are in violation of the provisions of the federal Endangered Species Act and other federal and state laws that provide protection for listed species.
Contrary to the Governor's position, this is not about people versus fish, but is about his administration‟s mismanagement of both financial and natural resources. The State Water Resources Control Board is responsible for the administration of water rights appropriations, its records show that it has over-appropriated the waters of the state by 500 percent.
Furthermore, neither it nor the Department of Fish and Game can provide a readily available accounting of the amount of water provided for fish needs, primarily because, in most cases, they do not set a numerical flow value required to sustain listed species. Even when they do, they do not monitor to ensure the fish water needs are being met – that is the diverter‟s job.
In cases when the SWRCB was fully aware of the fact that illegal diversions of water are occurring, such as the 1,771 illegal diversions in the North Coast Region, most of which are in “Wine Country”, the Board simply failed to abate the unlawful diversions. The National Marine Fisheries Service advised the Board that the unauthorized diversions in that area were responsible for the "Take” of listed species and violated the provisions of the ESA; it took no action.
While officials are not providing water for fish, since 1996, according to California‟s Legislative Analyst‟s Office, voters have approved $14 billion in General Obligation Bonds for water and water-related programs, which included buying water for fish. More than $5 billion of which has been expended on a myriad of water supply reliability and fish-doubling programs. Most of those funds were administered through CALFED, a consortium of federal and state agencies, a number of which are directly responsible for the disastrous decline in salmonid populations. They are also major water purveyors, regulators, Public Trustees and unaccountable violators of the law.
Government officials are not penalized when they curtail water exports from the Delta, as a result of killing listed species; they get paid and are rewarded for purportedly not pumping. At times, when officials exceeded the “take” limits under the ESA, they got back together and increased the number of fish they could “legally” kill.
To date, the only so-called relief available to abate the carte blanche killing at the Delta pumps is when a non-governmental entity files a lawsuit requesting judicial intervention. Ironically, this de facto action does not address the fundamental unaccountability of officials‟ business-as-usual kill and get paid for not killing fish. It simply affords officials more free press, public empathy and free money to ensure the water supply reliability of State Water Project and federal Central Valley Project contractors.
Coincidentally, it is the project operators that count the fish they kill and they pass the “data” down the food chain to their sister state and federal agencies “responsible” for fish and wildlife protection. P&A formally requested scientific proof from officials that would validate the effectiveness of the CALFED decade-in-the-making Delta improvement and fish-doubling effort.
Unfortunately, despite the plethora of studies that have been conducted, no quantitative analysis has been done to validate the effectiveness of the programs or the fish-doubling effort. Conversely, officials admit that there does not appear to be any increase in the doubling of fish populations or that the water for fish is even working.
The $345 million spent for buying water for the fish for achieving the fish-doubling goal, which was supposed to occur around the year 2002, and the other $5,000,000,000 in related efforts, is another taxpayer subsidized disaster. In fact, based on the government‟s data, which are dubious, salmonid populations are worse now than ever.
Furthermore, an estimated two-million acre-feet of water “purchased” through the Environmental Water Account (EWA), between 2001 and 2007, was not from water purchased for fish flows, rather the result of water officials‟ claims they did not pump. The SWP export rates, according to the Department of Water Resources, were in excess of 3,000,000 acre-feet for the years 2003, 2004, 2005, 2006; a reduction in pumping and an increase in exports! The hundreds of millions of dollars paid for not pumping were from General Bond funds, and are backed by the full faith and credit of the State.
Much of the water purchased through the EWA for fish protection also became available to state and federal water project contractors, which the Department of Water Resources can suck out of the Delta, after the fish were done using the water. Furthermore, a substantial portion of the additional 800,000 acre-feet of water allocated for fish purposes, from the federal Central Valley Project, can be sucked up by the massive government Delta pumping plants and exported south. The majority of the water goes to irrigate lands in the San Joaquin Valley, which are the primary cause of the extensive surface and groundwater contamination plaguing the region and making fish unfit for human consumption.
According to the U.S. Environmental Protection Agency, the Valley is now rated as one of the most contaminated areas in the United States, and will cost billions of dollars to cleanup. Contrary to government and water contractors‟ public relations campaigns, water available for Delta exports have not diminished, via the water for fish and the CVP allocations, the water for exports have actually increased on average by as much as 1.3 million acre-feet of water annually.
Twenty-four million Southern Californians do not depend on water exports from the Delta for their water supply; the maximum amount of water ever delivered by the SWP facilities was 1.9 million acre-feet, in 2006. Delta exports only account for about 25 to 30 percent of the Southern California Metropolitan Water District‟s supply, the SWP‟s largest contractor. The majority of the District‟s water comes from the Colorado River, estimated at 4.4 MAF or more, which is firm for at least another decade, and other surface and groundwater supplies.
Contrary to media and government rhetoric the Delta is not “broken”, that is simply a misnomer, it has been and continues to be grossly mismanaged and exploited, and the only thing that has been broken, is government‟s failure to fulfill its Public Trust Mandates. The Sixty Day Notice states that the demise of the Sacramento-San Joaquin Delta and the once sustainable fisheries and agricultural enterprises that thrived therein, are being put to death. The Delta has become the sacrificial lamb so that government water project operators can export cheap water to keep their “ailing” unsustainable agricultural contractors in the San Joaquin Valley “alive” on an artificial-life support system. Porgans & Associates has nearly 40 years of extensive involvement in water project operations, Delta water exports and fisheries related issues.
The crux of the Delta‟s dilemma is the California State Water Project, which was sold to the public back in 1960, as one that would unite the state, has and remains at the epicenter of its conflict. It was sold on the premise that it would “pay-for itself (water and power contractors would pay all reimbursable costs plus interest) and it would mitigate the impacts of the projects; it has failed to live up to those promises.
The SWP was underfinanced and “sold” more water than the project can supply and the unsuspecting public is footing the bill. As California‟s Governor recently announced the idea of selling public natural resources to pay off existing debt and to balance an out-of-control General Fund deficit, which, in part, is directly tied to the water for fish and the failed CALFED process. Ironically, the threat to sell off public parks and other landmarks is not to relieve the budget deficit. Instead, it will be used to borrow more money, via General Obligations Bonds, to sink into the blind-sighted “Delta Vision” which is yet another black hole that will keep certain SWP contractors financially afloat, and will keep the “Wall Street financiers” at Bay and amenable to financing more bond debt. Of course, this will be at the expense and to the demise of the Delta, taxpayers and Public Trust Resources.
This notice by P&A is the second of its efforts to sue the government for causing significant damages to the Bay-Delta Estuary. The first action was back in 1994, when it filed a lawsuit against the state and federal water project operators for illegally exporting more than $29,000,000 worth the water from the Delta. Fortunately, its efforts were effective in stopping the illegal exports at that time.
For additional information, contact Patrick Porgans & Associates, (916) 543-0780 or email porgansinc [at] sbcglobal.net
or Law Office of Joel C. Baiocchi (530) 389-9175 jcblaw2 [at] colfaxnet.com