State Panel Rejects Protected Status for Delta Smelt : Wildlife: Vote delays showdown over distribution of drinking water. But federal agency is expected to list the fish as being threatened.

Concerned about a legal technicality raised by the state’s powerful water interests, the California Fish and Game Commission declined Friday to list the delta smelt as an endangered or threatened species, putting off at least temporarily a showdown over the future of the state’s drinking and agricultural water supplies.

It was the second time in 2 1/2 years that the state panel turned aside recommendations by the state Department of Fish and Game that the finger-size fish be protected under the California Endangered Species Act. In August, 1990, the commission found that there was not enough evidence of the delta smelt’s decline to warrant protection.

“The state simply cannot get its act together,” said David Behar, executive director of the Bay Institute of San Francisco, an advocacy group in favor of the protection. “The state bureaucracy . . . is proving unable to stand up to entrenched special interests to protect the environment, and everyone is losing as a result of it as the ecosystem is pushed further toward crisis.”

Populations of the delta smelt, which lives only in the Sacramento-San Joaquin River Delta area, are believed to be at historic low levels, a development that may indicate the estuary’s ecosystem is collapsing, according to state biologists. The commission had agreed to reconsider the listing after reviewing recent fish-count surveys, including a sampling of 80 delta sites last fall that found only two fish.

Because the fish’s habitat also serves as the major transfer point for the state’s two largest water pumping projects--about two-thirds of Californians get all or some of their water from the delta--protections required by a listing could have dramatically reduced water exports to cities and farms across the state.

In a report to the commission Friday, a top Fish and Game official said a recovery program for the delta smelt could require “great costs in terms of water supply.” Bay Delta Division Chief Pete Chadwick said saving the fish could require a major reconfiguration of the delta-area water delivery system.

At least one commissioner said Friday that he remains unconvinced the delta smelt’s demise is imminent, but the decision against protecting the fish turned on legal--not biological--considerations. An attorney for the State Water Contractors, which represents water agencies serving about 20 million people, argued that the commission had no authority to reconsider the listing.

Citing a subsection of the state Endangered Species Act, attorney Gregory K. Wilkinson said the fish lost its status as a candidate for being listed when the commission rejected protection in 1990. Under the law, a new petition must be submitted and hearings held before a vote can be taken, a process that would take at least 60 days.

“I think we do have a roadblock,” said commission President Benjamin F. Biaggini, the only member who favored protection in 1990.

The commission voted 3 to 0, with Biaggini abstaining, to take no further action on the listing except to alert other state and federal officials that it wants to be consulted on delta restoration issues.

The commission’s inaction came as a surprise to many environmentalists and sportfishing enthusiasts who viewed the panel’s willingness to reconsider the listing as a sure sign the fish would receive protection. So confident were proponents of the listing that none showed up at the hearing in Long Beach to speak.

Some environmentalists accused water interests of sinking the proposed listing to protect their water supplies, but Wilkinson said his challenge to the commission’s legal authority may do little in the long run to block efforts to cut delta exports.

Indeed, the likelihood of reduced exports to protect the delta smelt remains high even with the commission’s decision. Proposed regulations of the delta by the State Water Resources Control Board call for keeping more water in the estuary, and the U.S. Fish and Wildlife Service is considering a petition to declare the delta smelt threatened under the federal Endangered Species Act.

A biologist for the federal agency in Sacramento said the fish is expected to be listed, possibly as early as next week. Because the federal law is considered to be tougher than the state version, many advocates of delta smelt protection have long looked to the federal government as their best hope for saving the fish.