Judge reverses stance on Delta rules
Mike Taugher
Oakland Tribune
05/18/2010
A federal judge who invalidated permits on California's dams and Delta pumps two years ago because they were too lenient to protect endangered salmon on Tuesday ruled that new conditions may be too strict.
U.S. District Judge Oliver Wanger concluded that the federal government failed to analyze the "draconian" effect that protecting salmon would have on the state's water supply and that regulators did not provide scientific justification for their limits on Delta pumping.
"The exact restrictions imposed, which are inflicting material harm to humans and the human environment, are not supported by the record," he wrote in a 134-page ruling. "Rather, they are product of guesstimations and attempts to try to achieve 'equity,' rendering it impossible to determine whether the (Delta pumping restrictions) are adequately protective, too protective, or not protective enough."
A hearing is scheduled today in Fresno to determine, or at least begin to determine, what adjustments to make.
At issue are two endangered species permits that together control how California's major water systems are run, from the state's biggest dams to the Delta pumps that deliver water to parts of the Bay Area and all the way to Southern California.
With conditions severely deteriorating in the Delta, Wanger in 2007 and 2008 ordered the permits rewritten to prevent the extinction of several fish species, including salmon and steelhead runs, green sturgeon and Delta smelt.
The new permits went into effect just as California entered a series of dry years, and the resulting water shortages on the west side of the San Joaquin Valley prompted a coordinated public relations backlash that focused on the new rules meant to protect smelt.
Last year, beneficiaries of the state and federal water projects, led by San Joaquin Valley farmers and urban water agencies, sued to overturn the two permits. They argued that federal regulators failed to analyze the effect of the new restrictions under the National Environmental Policy Act and that the new restrictions were not based on good science.
In Tuesday's ruling, Wanger largely agreed.
While the federal government and environmental groups defended the new permits, the state of California weighed in with the water users, a fact that Wanger cited as "highly significant" in his decision.
Tuesday's ruling affects only the 800-plus page analysis and permit, known as a biological opinion, that sets conditions to protect salmon, steelhead, green sturgeon and a population of orcas that federal biologists concluded would be endangered by the loss of food as California's salmon populations continue to decline.
But many of the issues in a second case, involving Delta smelt, are similar.
"The federal court's decision opens the door to protecting the Delta's treasured salmon populations through better and more flexible management of the water projects in a manner that does not needlessly cost the economy water supplies," said Laura King Moon, assistant general manager of the State Water Contractors. The association includes water agencies from the Tri-Valley and South Bay to Southern California.
The agency that wrote the permit, the National Marine Fisheries Service, had no comment Tuesday.
