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51 ELR 10740 ENVIRONMENTAL LAW REPORTER 92021
COMMENTS
REVISITING THE DELTA SMELT:
A REBUTTAL TO WEILAND
AND MURPHY
by Karrigan Börk, Peter Moyle, John Durand, Tien-Chieh Hung,
and Andrew L. Rypel
Karrigan Börk is an Acting Professor of Law at the UC Davis School of Law and an Associate Director
at the UC Davis Center for Watershed Sciences. Peter Moyle is a Distinguished Professor, Emeritus,
in the UC Davis Department of Wildlife, Fish, and Conservation Biology and an Associate Director at
the UC Davis Center for Watershed Sciences. John Durand is a Senior Research Scientist at the UC
Davis Center for Watershed Sciences. Tien-Chieh Hung is an Associate Adjunct Professor of UC Davis
Department of Biological and Agricultural Engineering. Andrew L. Rypel is an Associate Professor
and the Peter B. Moyle and California Trout Endowed Chair, UC Davis Department of Wildlife, Fish,
and Conservation Biology and Co-Director at the UC Davis Center for Watershed Sciences.
In September 2020, we published a Comment in these
pages addressing the challenges inherent in manag-
ing small and declining populations under the federal
Endangered Species Act (ESA),¹ and focusing on the U.S.
Fish and Wildlife Service’s (FWS’) treatment of Califor-
nia Delta smelt in a recent biological opinion (BiOp).² e
BiOp approved federal plans to increase water withdrawals
from the Sacramento-San Joaquin River Delta, a sensitive
habitat home to many threatened and endangered species.³
Since we published our Comment, the outlook for the
1. 16 U.S.C. §§1531-1544, ELR S. ESA §§2-18.
2. Karrigan Börk et al., Small Populations in Jeopardy: A Delta Smelt Case Study,
50 ELR 10714 (Sept. 2020).
3. FWS, B O R C
C O C V P
S W P 172 (2019) [hereinafter 2019 FWS BO], https://
www.fws.gov/sfbayDelta/cvp-swp/documents/10182019_ROC_BO_nal.
pdf. e 2019 BiOp lists 15 protected species that occur in the Delta.
Delta smelt has become even more dire; the Delta Smelt
Index remained at 0 in 2020, and 84.5% of the state is in
extreme drought. In litigation over the 2019 BiOp, FWS
and the other federal defendants have agreed to produce a
new BiOp, with consultation beginning Fall 2021.
e federal Bureau of Reclamation’s Central Valley
Project (CVP) and California’s State Water Project (SWP)
store, divert, or export much of the water owing through
the California Delta, changing its character and making
it more dicult for many native species like Delta smelt
to survive there. e CVP and SWP form core compo-
4. California Department of Fish and Wildlife, Delta Smelt Indices, https://
www.dfg.ca.gov/delta/data/townet/indices.asp?species=3 (last visited July
16, 2021).
5. National Integrated Drought Information System, Current U.S. Drought
Monitor Conditions for California, https://www.drought.gov/states/califor-
nia (last updated July 13, 2021). In extreme drought, livestock pasture is
generally unavailable and so livestock require supplemental feed; “[f]ire sea-
son lasts year-round ... [w]ater is inadequate for agriculture, wildlife, and
urban needs; reservoirs are extremely low; [and] hydropower is restricted.”
Gov. Gavin Newsom has declared a drought disaster in 41 of California’s
58 counties. Press Release, Oce of Governor Gavin Newsom, Governor
Newsom Expands Drought Emergency to Klamath River, Sacramento-
San Joaquin Delta, and Tulare Lake Watershed Counties (May 10, 2021),
https://www.gov.ca.gov/2021/05/10/governor-newsom-expands-drought-
emergency-to-klamath-river-sacramento-san-joaquin-delta-and-tulare-lake-
watershed-counties/.
6. Federal Defendants’ Brief in Support of Motion for Stay at 2, California
Natural Res. Agency v. Ross, No. 120CV00426DADEPG (E.D. Cal. July
14, 2021), ECF No. 186; National Marine Fisheries Service (NMFS), Ex-
ecutive Order 13990 Review Memo, Review Process of FWS and NMFS
2019 Biological Opinions for Long Term Operations of the CVP and SWP
(May 4, 2021) (on le with the authors).
7. See Larry R. Brown & Marissa L. Bauer, Eects of Hydrologic Infrastructure on
Flow Regimes of California’s Central Valley Rivers: Implications for Fish Popula-
tions, 26 R R. A 751 (2010).
Authors’ Note: Dr. Moyle is engaged in pro-bono advising
for a project that would create artificial habitat for smelt in
large ponds on a subsided Delta island, owned by Met-
ropolitan Water District of Southern California, which is
also providing funding for the project. Dr. Hung directs the
delta smelt conservation hatchery, funded by the Bureau of
Reclamation and in small part by the U.S. Fish and Wild-
life Service. He is also an at-large member of the Captive
Propagation Working Group and the Research Working
Group to the Culture and Supplementation of Smelt (CASS)
Steering Committee, and he remains involved in the Experi-
mental Release Technical Team.
Copyright © 2021 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
92021 ENVIRONMENTAL LAW REPORTER 51 ELR 10741
nents of California’s water supply, providing water to more
than 25 million people and to millions of acres of valuable
farmland. e CVP and SWP have contracts to deliver
water far in excess of what is available in most years, due to
overallocation, drought, insucient snowpack, ecosystem
needs, and other factors. Most users getting water from the
Delta receive less than their contracted amount of water,
and certainly far less water than they would like. Both pro-
tected species and agriculture in the Delta require water,
and this leads to impassioned conict and competition for
resources with downstream users, conservation interests,
and agricultural interests.
Much of this conict centers on the Delta smelt,
which has become a ashpoint for signicant resent-
ment, frustration, and lawsuits since at least the 1990s;
the 2019 FWS BiOp is likewise the subject of ongoing
litigation. us, we were not surprised when our Com-
ment spawned a vigorous response.¹ Unf ortu nate ly, t he
July Comment from Paul Weiland and Dennis Murphy
misunderstands our Comment’s principal arguments and
misstates several key points. We respond here by clarify-
ing the main points from our original Comment in Part
I and then, in Part II, addressing some specic concerns
raised by Weiland and Murphy.
I. Evaluating the Water Project Effects
Reclamation and the state coordinate operation of the CVP
and SWP through the coordinated operations agreement,
which requires periodic updates.¹¹ Because these updates
are a federal action, they require consultation under §7 of
the ESA to ensure that the operations envisioned by the
agreement are “not likely to jeopardize the continued exis-
tence of any endangered species or threatened species or
result in the destruction or adverse modication of [criti-
cal] habitat of such species.”¹²
In August 2016, Reclamation and California requested
a new consultation on the water project operations. In its
request, Reclamation cited “new information related to
multiple years of drought and recent data demonstrating
low delta smelt populations.”¹³ FWS agreed to carry out
the new consultation based on new information “dem-
onstrating the increasingly imperiled state of the delta
smelt and its designated critical habitat, and ... emerging
science show[ing] the importance of outows to all life
stages of delta smelt and to maintaining the primary con-
stituent elements of designated critical habitat.”¹ Indeed,
8. C V. S P A. S, C R
S, C V P: I L i, 3 (2021),
https://fas.org/sgp/crs/misc/R45342.pdf. Most of the CVP water (about
75%) is used for irrigation, and most of the SWP water (70%) is used for
urban uses. Id.
9. Peter B. Moyle et al., Delta Smelt and Water Politics in California, 43 F-
42, 42 (2018).
10. Paul S. Weiland & Dennis D. Murphy, Revisiting Small Populations in Jeop-
ardy: A Rejoinder to Börk et al., 51 ELR 10557 (July 2021).
11. 2019 FWS BO, supra note 3, at 27.
12. ESA §7, 16 U.S.C. §1536.
13. 2019 FWS BO, supra note 3, at 15.
14. Id.
FWS’ 2019 BiOp found that recent Delta smelt “abun-
dance trends strongly suggest it is in the midst of demo-
graphic collapse.”¹
In spite of the motivation for the new consultation and
the consultation’s ndings, the consultation ultimately con-
cluded that the CVP could take more water from the Delta
without jeopardizing the Delta smelt’s continued existence.
FWS concluded that the proposed changes would nega-
tively impact Delta smelt reproduction,¹ increase the num-
ber of larvae and juveniles killed by the pumps,¹ reduce
available Delta smelt habitat quantity¹ and quality,¹ and
negatively impact the smelt’s food web.² Nevertheless,
FWS determined that a suite of mitigation eorts would
oset these negative impacts enough that the action was
unlikely to jeopardize the smelt’s continued existence.²¹
In our September 2020 Comment, we discussed the
challenges in conserving small, declining populations like
that of the Delta smelt, and explained why the three miti-
gation eorts FWS relied on in the opinion—real-time
monitoring, small-scale habitat improvements, and a Delta
smelt hatchery—oer benets that are so speculative they
cannot outweigh actions known to have a negative impact
on the smelt.²² We do not, as Weiland and Murphy allege,
suggest that these eorts should be abandoned.²³ Rather,
we argued that, given the precarious state of the smelt
population and the demonstrated problems with these
approaches,² the benets they oer are so uncertain that
relying on them to justify extraction of more water from
the Delta likely violates the ESA. is is, as we noted, a
common problem in conservation of small and declining
animal and plant populations. Every decision is weightier
when a species is on the brink of extinction, and the ben-
ets of mitigation, which are supposed to oset known
negative impacts from planned federal actions, are often
much more uncertain.
After addressing the aws in the 2019 FWS BiOp, we
shifted to a dierent argument: we argued that the §7 pro-
cess as currently administered is not designed to recover spe-
cies, and instead advocated for a more aggressive approach
aimed at recovery, not permitting. e ESA permitting
15. Id. at 172.
16. Id. at 211.
17. Id.
18. Id. at 218.
19. Id. at 219.
20. Id. at 216.
21. Id. at 220-21.
22. Weiland and Murphy criticize the Comment for failing to undertake a
“structured decisionmaking exercise akin to eects analysis,” but the Com-
ment did not seek to replicate a §7 consultation. Weiland & Murphy, supra
note 10, at 10559. Instead, as noted, it explained why the mitigation ben-
ets anticipated by the BiOp were unlikely to materialize. Without those
benets, the known negative impacts of increased water withdrawals from
the Delta make a no-jeopardy BiOp unsupportable.
23. Weiland & Murphy, supra note 10, at 10560 (claiming we argued that the
“agencies should dispense with real-time monitoring”); at 10561 (claim-
ing we argued that habitat restoration “should not be undertaken”); and at
10562 (claiming we argued that “development of a conservation hatchery
for Delta smelt by Reclamation and FWS is unsupported and unlawful”).
24. We provide a detailed discussion of the problems with these approaches,
with citations to the peer-reviewed scientic literature, in our original Com-
ment. See generally Börk et al., supra note 2.
Copyright © 2021 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
51 ELR 10742 ENVIRONMENTAL LAW REPORTER 92021
framework seeks to ensure that permitted projects do not
“jeopardize the continued existence” of a listed species.
Courts interpret this to mean that a project cannot appre-
ciably reduce the likelihood of either survival or recovery of
the listed species.² But the key here is that the project can-
not reduce the likelihood; agencies have not interpreted the
permitting process to require armative steps to increase
the likelihood of listed species recovery. In the Delta smelt
context, this means that the general approach taken by fed-
eral agencies, focused as it is on §7 compliance, is unlikely
to result in the species’ recovery. Indeed, with the collaps-
ing Delta smelt population, the 2019 FWS BiOp allows
the species to continue its slide into oblivion; reversing this
trend is not the BiOp’s goal.
We noted this weakness in the permitting portion of
the Act, and then advocated for a dierent approach. e
ESA is not merely a permitting act. As we noted, relying
on the text of the Act, the ESA oers “a means whereby
the ecosystems upon which endangered species and threat-
ened species depend may be conserved [and] to provide a
program for the conservation of such endangered species
and threatened species.”² “Conservation” in this context
means not just population maintenance, but true species
recovery and delisting.²
After spelling out the conservation requirement, a part
of §7 separate from the BiOp requirement, §7 explicitly
directs that federal agencies use their authorities to “carr[y]
out programs for the conservation of endangered species
and threatened species.”² us, federal agencies need
not simply seek to oset negative impacts of their actions
through the consultation process; instead, they have a
powerful grant of authority to act to restore listed species.²
ey may even be required to do so, although most of the
case law does not go that far.³
Based on this broad authority, we proposed some steps
that Reclamation and FWS could take to attempt to
recover Delta smelt while still fullling the purposes of
the Delta water projects. First, because the vast majority of
Delta smelt habitat in the Delta is so degraded and cannot
25. National Wildlife Fed’n v. National Marine Fisheries Serv., 524 F.3d 917,
931, 38 ELR 20099 (9th Cir. 2008) (“[W]e conclude that the jeopardy reg-
ulation requires NMFS to consider both recovery and survival impacts.”);
see also Wild Fish Conservancy v. Salazar, 628 F.3d 513, 518, 40 ELR 20037
(9th Cir. 2010); 16 U.S.C. §1536(a)(2); 50 C.F.R. §402.02 (2009).
26. ESA §2(b), 16 U.S.C. §1531(b).
27. ESA §3(3), 16 U.S.C. §1532(3) (dening “conservation” as “the use of all
methods and procedures which are necessary to bring any endangered spe-
cies or threatened species to the point at which the measures provided pur-
suant to this Act are no longer necessary”).
28. ESA §7(a)(1), 16 U.S.C. §1536(a)(1).
29. Carson-Truckee Water Conservancy Dist. v. Clark, 741 F.2d 257, 261, 14
ELR 20797 (9th Cir. 1984).
30. See Sierra Club v. Glickman, 156 F.3d 606, 616, 29 ELR 20159 (5th Cir.
1998) (“Given the plain language of the statute and its legislative history,
we conclude that Congress intended to impose an armative duty on each
federal agency to conserve each of the species listed....”). See also Defenders
of Wildlife v. U.S. Fish & Wildlife Serv., 797 F. Supp. 2d 949, 957 (D. Ariz.
2011) (holding that, under §7(a)(1), “the USFS [U.S. Forest Service] has
responsibility, equal to that of the USFWS, to use its authorities in further-
ance of the conservation of the Mexican gray wolf and has an armative
duty to carry out a program for the conservation of the Mexican gray wolf,”
a listed species).
be restored to historic conditions, we suggest FWS should
determine whether the smelt could survive in other habitats
outside the Delta, like freshwater lakes or other locations.
Second, we advocated for an ecosystem water allocation
to be managed for the benet of the species. Both of the
options hold some promise for aiding Delta smelt and
should be part of a comprehensive eort to save the species.
Weiland and Murphy misunderstand this portion
of our Comment as well, suggesting we “believe [these
approaches] are superior to the three components of Recla-
mation’s proposed action.”³¹ We did not oer them as alter-
natives that would have saved the BiOp or that should be
relied on instead of the mitigation outlined in the BiOp.
Instead, as we noted in the Comment, we oer these sug-
gestions as aggressive experimental actions worthy of con-
sideration outside of the BiOp context, in hopes that they
might change the broken dynamics currently leading the
Delta smelt into extinction.
We have briey restated our arguments here in order to
clarify them and to demonstrate that Weiland and Mur-
phy’s Comment focused much of its attention on argu-
ments we simply did not make. We turn now to other
concerns with their response.
II. Specific Concerns
A. Baseline and Burden of Proof
In our Comment, we described an approach to §7 consul-
tations for small populations in decline, sometimes termed
“baseline jeopardy,” wherein a BiOp can only approve an
action if it does not cause additional harm. As we noted,
the circuit courts explicitly addressing the issue have fol-
lowed this approach.³² As we also noted, and as Weiland
and Murphy correctly state, “the agency has considered
and rejected [this approach] in notice-and-comment
rulemaking.”³³ We respond only that the 2019 FWS BiOp
explicitly declines to rely on those new regulations³ and
that no court has yet ruled on the agency’s attempt to reject
this approach, so it remains unclear whether its attempted
reinterpretation of the Act will succeed. ese new regu-
31. Weiland & Murphy, supra note 10, at 10562.
32. National Wildlife Fed’n v. National Marine Fisheries Serv., 524 F.3d 917,
930, 38 ELR 20099 (9th Cir. 2008). See also Turtle Island Restoration
Network v. U.S. Dep’t of Commerce, 878 F.3d 725, 735 (9th Cir. 2017)
(“Where a species is already in peril, an agency may not take an action that
will cause an ‘active change of status’ for the worse.”); American Rivers v.
Federal Energy Regul. Comm’n, 895 F.3d 32, 47, 48 ELR 20113 (D.C. Cir.
2018). No other circuits have addressed this question directly. But see Butte
Env’t Council v. U.S. Army Corps of Eng’rs, 620 F.3d 936, 948, 40 ELR
20144 (9th Cir. 2010).
33. Weiland & Murphy, supra note 10, at 10558 n.18 (citing 84 Fed. Reg.
44976, 44987 (Aug. 26, 2019)).
34. 2019 FWS BO, supra note 3, at 15 (“Updates to the regulations govern-
ing interagency consultation (50 CFR part 402) will become eective on
October 28, 2019 [84 FR 44976]. Because this consultation was pending
and will be completed prior to that time, we are applying the previous regu-
lations to the consultation.”).
Copyright © 2021 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
92021 ENVIRONMENTAL LAW REPORTER 51 ELR 10743
lations themselves appear to be under review in the new
administration, so the point may be moot.³
eir Comment also suggests that we “attribute bad
faith to FWS.”³ at is not true. We did observe that
crafting a no-jeopardy BiOp for a very small and declining
population “is more an exercise in how to de ne the envi-
ronmental baseline and portray limited agency discretion
than a serious e ort to avoid extinction.”³ is is based on
the general structure of the Act as currently administered,
and it is consistent with the 2019 FWS BiOp, which delib-
erately does not address what might be required to avoid
extinction for the smelt.
e BiOp describes the poor baseline conditions for the
smelt, noting that “[t]he abundance of delta smelt has been
declining for many years. ere are many causes for this decline,
including the e ects of past water operations. All indications
are that this decline will continue into the future without inter-
vention, such as supplementation of the wild population.”
³
Even absent the project, the BiOp notes that “challenges to
delta smelt survival will increase.”³ But because, under exist-
ing agency interpretations, a §7 analysis compares the project
impacts to these baseline conditions, the §7 analysis does not
seek to avoid extinction overa ll, rather just to avoid a more rapid
extinction due to the project under review. Reclamation under-
took this project “to maximize water supply delivery and opti-
mize power generation,” not to save the smelt.
is is, as discussed, a poor way to conserve a species.
e BiOp does not seek to avoid the extinction of the
smelt, just an extinction of the Delta smelt caused by the
operations analyzed under this iteration of the BiOp. us
it is, as we observed, “more an exercise in how to de ne
the environmental baseline and portray limited agency dis-
cretion than a serious e ort to avoid extinction.”¹ Federal
agencies have the discretion to do far more.
B. Criticisms of the Science
Our Comment focused on the real-time monitoring, habitat
improvements, and hatchery smelt production mitigation
methods, and Weiland and Murphy’s response criticized it
for disregarding other mitigation actions, “including Old
and Middle Rivers management, a summer-fall habitat-
enhancement action, and predator removal.”² We focuse d
on the former because FWS relies on them so heavily.³
Notably, the Old and Middle Rivers management relies
35. FWS, ESA Implementation—Regulation Revisions, https://www.fws.gov/
endangered/improving_esa/regulation-revisions.html (last updated June 4,
2021).
36. Weiland & Murphy, supra note 10, at 10559.
37. Id.
38. 2019 FWS BO, supra note 3, at 210-11.
39. Id.
40. Id.
41. Id.
42. Weiland & Murphy, supra note 10, at 10559.
43. See, e.g., 2019 FWS BO, supra note 3, at 214 (“Overall, while the PA
[proposed action] will result in certain negative e ects to the reproduction,
numbers and distribution of delta smelt, it will also result in bene cial ef-
fects through protective real-time operations actions, habitat restoration,
and the funding and implementation of a delta smelt supplementation pro-
gram.”). See also id. at 218-21.
in part on real-time monitoring, so our concerns extend
to this mitigation as well. FWS concluded that the sum-
mer-fall habitat-enhancement action will have “unknown”
e ect on the smelt, and that the predator removal e orts
are unlikely to have any positive e ects on Delta smelt, so
we left those mitigation measures unaddressed.
We focused our Comment on demonstrating the prob-
lems with the three mitigation approaches relied on most
heavily by the no-jeopardy opinion. Weiland and Murphy’s
critiques do not change our view of the problems with the
mitigation e orts.
e independent review panel evaluated the Delta smelt
monitoring program in great detail in 2017, and its conclu-
sion that “it is di cult to see how the EDSM [Enhanced
Delta Smelt Monitoring Program] currently can be used to
inform water operations in near real time”
remains per-
suasive. Monitoring is good, but this monitoring is unlikely
to deliver the bene ts anticipated in the BiOp. Smelt are
likely to be killed or disrupted by the pumps even when
they are not detected in real-time sampling. Other forms of
real-time monitoring, such as the well-established acoustic
telemetry methods currently used for endangered anadro-
mous salmonids, are currently not feasible for smelt due to
technology constraints, like the size of tags.
e habitat restoration work is likely to bene t smelt,
but, as FWS concludes, “the magnitude of the e ect of this
component of the PA [proposed action] is unknown at this
time.” e bene ts are therefore speculative; addition-
ally, this work was supposed to be done as mitigation for
operations under a 2008 BiOp, but little restoration work
has been completed. Habitat restorations are generally
desirable in human-dominated landscapes, but bene ts are
notoriously variable at all scales, leading some ecologists to
call for standards for ecologically successful restorations.
Such standards continue to be lacking for many restoration
projects in the Sacramento-San Joaquin Delta that aim to
bene t smelt. Ultimately, FWS should not rely on small
restoration e orts producing unknown bene ts to o set
known impacts from the new operating agreement.
Finally, long-term success of the conservation hatch-
ery remains challenging. e hatchery population already
shows evidence of adaption to captivity.¹ e sh culture
44. Id. at 41.
45. Id. at 181 (“ e net direction and magnitude of the e ect [on smelt] of
this element of the PA is unknown at this time.”). e details of the actions
remain largely unspeci ed, subject to future planning e ort. Id. at 51-52.
46. Id. at 157, 174.
47. J A. G ., D S C, I R-
P (IRP) R 2017 L-T O B-
O (LOBO) B S R 24 (2018), https://
www.fws.gov/cno/science/Review%20PDFs/2018/LOBO_EnhancedDel-
taSmeltMonitoringProgram_2018-01_FinalReport.pdf. is is particularly
true when Reclamation has three days to adjust its pumping after detection
of any smelt. 2019 FWS BO, supra note 3, at 41.
48. 2019 FWS BO, supra note 3, at 180.
49. Id. at 156, 128.
50. See generally Margaret A. Palmer et al., Standards for Ecologically Successful
River Restoration, 42 J. A E 208 (2005).
51. Amanda J. Finger et al., A Conservation Hatchery Population of Delta Smelt
Shows Evidence of Genetic Adaptation to Captivity After 9 Generations, 109 J.
H 689 (2018).
Copyright © 2021 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
51 ELR 10744 ENVIRONMENTAL LAW REPORTER 92021
facility is trying to supplement the population with
additional wild sh but was only able to capture two
wild smelt in 2020, too few to avoid domestication in
the captive smelt. As with monitoring and restoration, a
successful hatchery is vital to conservation of the smelt,
but the bene ts remain wildly uncertain, and relying on
those bene ts to allow increased impacts to the smelt
population from project operations is without any dis-
cernible logic.
III. Conclusion
Weiland and Murphy’s response to our Comment misun-
derstands our principal arguments and misstates several
key points. As we conclude in our Comment:
e Delta smelt has become so rare that improving the
species’ status will be very di cult. Relying on ... hoped-
for improvements to o set known negative impacts in
a BiOp nds no support in the science of small popula-
tions. Species with exceedingly small populations, such as
the Delta smelt, are di cult to manage under the best of
conditions, and the success of projects designed to ben-
e t populations in this position is always uncertain. Using
uncertain bene ts to o set likely negative impacts both
invites legal challenges and increases extinction risk.²
e response o ers no new insights that show how the
BiOps provide a strategy to increase or stabilize smelt num-
bers. We continue to share the view FWS expressed in the
BiOp, that the Delta smelt faces a signi cant risk of extinc-
tion in the near future.³
52. Börk et al., supra note 2, at 10722.
53. 2019 FWS BO, supra note 3, at 210 (the Delta smelt “population
is thought to be so small that stochastic factors, such as a multi-year
drought, the loss of key spawning or rearing sites, or an increase in local
abundance of competitors or predators could cause extinction in the wild
in the near future”).
Copyright © 2021 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
