A federal judge yesterday threw out a federal scientific study that forms the basis for protecting the delta smelt in California's sprawling Sacramento-San Joaquin River Delta.
In a direct and often biting decision, U.S. District Judge Oliver Wanger said the Fish and Wildlife Service had ordered a protection plan under the Endangered Species Act through a biological opinion that is "arbitrary, capricious and unlawful."
In the same breath, Wanger reiterated his position that the smelt is deserving of federal protection. But he does not agree with the standing scientific reasoning behind cutting back on water flows to districts and farms in the Central Valley to protect the tiny fish.
"The public cannot afford sloppy science and uni-directional prescriptions that ignore California's water needs," the judge wrote, adding that the state Legislature had failed "to provide the means to assure an adequate water supply for both the humans and the species dependent on the delta."
Moreover, in a remarkable side note that cuts to the heart of the many stresses in the Northern California region, Wanger appeared to suggest he does not see a legal avenue for finding a solution for the many interests, farms, wildlife and urban consumers that rely on the delta's water.
"The law alone cannot afford protection to all the competing interests at stake in these cases," Wanger said.
The bi-op at the center of the legal scrutiny was approved by FWS in 2008 to protect the smelt from an ecosystem that has deteriorated under pressure from farmers, developers, an ever-increasing population, drought, invasive predators and chemical runoff.
The ruling remands the bi-op back to the Fish and Wildlife Service to correct its work, which lawyers close to the case said should take at least nine months to complete. Those behind the lawsuit -- a coalition of urban and rural water districts in Central and Southern California -- praised the decision as a victory for common sense over what they argue was a faulty recovery plan from the outset.
"This is a great victory for sound science, Californians dependent on the [Central Valley Project] and [State Water Project], and, not least, the smelt," said Christopher Carr, an attorney for the Metropolitan Water District of Southern California in the case. "It requires the agency to go back to the drawing board and use the best available science in analyzing the impacts of the projects on the smelt."
The Central Valley Project refers to the federal half of Northern California's water infrastructure, with the reservoir at Mount Shasta representing the biggest source controlled by the Bureau of Reclamation. The State Water Project refers to the state half, with Lake Oroville representing the biggest state-controlled reservoir.
About 25 million California residents rely on the delta for water, which together with the San Francisco Bay represents the largest estuary on the West Coast of North America.
Mixed response from enviro groups
Attorneys for the environmental groups that have argued on behalf of the FWS bi-op said they were disappointed but pleased to hear Wanger views the smelt as worthy of protection.
"This court has previously found that delta pumping operations are jeopardizing the delta smelt, and that determination has not been changed," said Earthjustice attorney George Torgun in a statement. "The court is seeking more information from the government to explain the specific measures that have been put into place to protect the delta smelt from extinction."
In a subsequent interview, Torgun said his team is still reviewing the ruling and may appeal. He noted that the smelt is an indicator species and argued that salmon and other threatened species are caught up in the same legal fight.
"For every dead smelt there are many other native fish species in steep decline, including native salmon that support communities up and down the coast," he said. "If we ignore the plight of the smelt, the entire delta and those that depend on this ecosystem will be in serious trouble."
Wanger is also in the process of studying federal scientific underpinnings for protecting salmon that hatch in the region before swimming through the Golden Gate into the Pacific Ocean, only to return three years later to spawn. Summary judgement hearings are scheduled in that case tomorrow and Friday in Wanger's court in Fresno.
Also relevant to the case is a byzantine federal-state process called the Bay Delta Conservation Plan, or BDCP, that has been working toward an extensive plan for attempting to help the delta recover to a more natural state, which means expensive restoration of tidal marshes and wetlands. A steering committee behind the BDCP recently recommended construction of a multibillion-dollar canal or tunnel that would route water around the delta directly from rivers that flow from the Sierra Mountains to the west and north of the Bay Area.
Click here to view Wanger's ruling on the smelt.
Sullivan reported from San Francisco.
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