[env-trinity] E and E Daily

Wed May 19 16:00:15 PDT 2010

15. ENDANGERED SPECIES: Judge scolds NMFS on Calif. water curbs, signals
relief for farmers (05/19/2010)

Colin Sullivan, E&E reporter

U.S. District Judge Oliver Wanger yesterday delivered a victory for farmers
and water districts looking to pump more water from the San
Joaquin-Sacramento Bay Delta, ruling that federal agencies "completely
abdicated" their responsibility to protect economic interests in California
alongside endangered salmon.

Wanger, ruling from the U.S. Eastern District of California in Fresno,
signaled his intention to provide San Joaquin Valley farmers and water
districts some degree of relief from water export restrictions ordered under
the Endangered Species Act.

While he did not yet specify what that relief would entail, Wanger sent a
clear message to officials at the National Marine Fisheries Service who
crafted a scientific opinion that protects salmon and steelhead in the
delta. That message amounted to a public scolding.

Federal officials, he wrote, "have acted arbitrarily and capriciously in
formulating [flow restrictions] to protect threatened species under the ESA
that lack factual and scientific justifications."

"NMFS has failed to adequately justify by generally recognized scientific
principles the precise flow prescriptions imposed by" actions to protect
salmon, Wanger wrote in a 134-page
<http://www.eenews.net/features/documents/2010/05/19/document_cw_01.pdf>
decision. He added that the restrictions amount to "guesstimations and
attempts to try to achieve 'equity,' rendering it impossible to determine
whether [the actions] are adequately protective, too protective or not
protective enough."

Wanger went on to say he is inclined to provide plaintiffs -- led by the
Westlands Water District and the San Luis & Delta Mendota Water Authority --
with injunctive relief that could curtail the pumping limits, which are
active through June. He has scheduled a hearing for this morning with
attorneys to discuss.

The ruling comes as part of a larger case filed by the water districts and
agriculture industry against a NMFS biological opinion on winter-run and
spring-run chinook salmon in the Central Valley, among other species. The
districts are seeking an injunction until that case goes to trial. Also
likely to see a ruling in the next few weeks is a separate injunction
attempt aimed at a bi-op that applies to the delta smelt.

Christopher Carr, an attorney for the Metropolitan Water District of
Southern California, said Wanger was signaling that NMFS "fell short on the
science" behind the notion that pumping limits help the fish. He refused to
speculate on the possible remedy, which could become clear today.

"We're delighted with the ruling," Carr said. "It's an extremely strong
decision."

Doug Obegi, a lawyer with the Natural Resources Defense Council, agreed that
Wanger was showing a distaste for how the agencies had justified the pumping
limits in court. But he also noted that Wanger's decision stated that salmon
fishermen in the Bay area and the fish themselves are entitled to equal
protections.

"I think it's very much a mixed bag," Obegi said. "He's clearly shown that
some pumping restrictions are necessary."

Going forward, Obegi said he has a hard time seeing how Wanger will be able
to straddle the interests of farmers, districts, fishermen and native
tribes, not to mention the fish. The judge seems likely to order a new
analysis by NMFS under the National Environmental Policy Act, but Obegi is
not sure that means progress.

"It's not really clear to me that you get a lot out of that process," he
said. "Plenty of money for the lawyers, but I'm not sure what it does for
the fish."

Wanger, he added, "may tweak some of the numbers a little bit, but I'm not
even sure he's going to go that far. We'll see."

Byron Leydecker, JcT

Chair, Friends of Trinity River

PO Box 2327

Mill Valley, CA 94942-2327

415 383 4810 land/fax (call first to fax)

415 519 4810 mobile

 <mailto:bwl3 at comcast.net> bwl3 at comcast.net

 <mailto:bleydecker at stanfordalumni.org> bleydecker at stanfordalumni.org
(secondary)

 <http://fotr.org/> http://www.fotr.org 

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