JD Supra —
On November 16, 2020, the U.S. Fish and Wildlife Service (“USFWS”) published its annual review of species that are candidates for listing as either threatened or endangered species, its findings on resubmitted petitions for listing actions, and its annual description of progress on pending listing actions. Among those pending listing actions are two petitions that are highly relevant for water agencies and water users in California – a petition to reclassify the delta smelt (Hypomesus transpacificus) and the pending listing of the longfin smelt (Spirinchus thaleichthys).
The delta smelt, a very small fish endemic to the Suisun Bay, and upstream through the Delta in Contra Costa, Sacramento, San Joaquin, Solano, and Yolo Counties in California, is currently listed as threatened under the Endangered Species Act (“ESA”). Because it was listed as threatened prior to the USFWS’ September 2019 final rule requiring species-specific rules regarding take of threatened species to be adopted, the delta smelt is entitled to the same protections as an endangered species. USFWS notes the decreases in the delta smelt’s abundance between 2001 and 2019, and indicates that the primary threats to the smelt are entrainments from federal and state water projects, as well as changes in salinity and water clarity caused by those same water projects. However, because the delta smelt is already protected in the same way that it would be if it were listed as endangered, USFWS concludes that reclassification of the species is warranted, but precluded by higher priority listing decisions.