A federal judge on Tuesday struck down rules protecting the
diminutive Delta smelt, saying that the public cannot afford
”
sloppy science
”
and one-way remedies that
”
ignore California’s water needs.
”
Alex Breitler
A federal judge on Tuesday struck down rules protecting the diminutive Delta smelt, saying that the public cannot afford “sloppy science” and one-way remedies that “ignore California’s water needs.”
The ruling will not have an immediate impact on how much water can be pumped out of the Delta, west of Stockton.
But it requires the U.S. Fish and Wildlife Service to rewrite – for the second time – portions of its plan to protect the imperiled smelt, which could change the way the massive export pumps operate in the long term.
Urban and agricultural water users south of the Delta declared victory.
“With the economy struggling and unemployment still soaring, it is welcome to see a judge refusing to rubber stamp extreme, destructive and unjustified environmental regulations,” said Damien Schiff, an attorney for the Pacific Legal Foundation. The foundation represented south San Joaquin Valley landowners who challenged the Fish and Wildlife rules in court.
An environmental group noted, however, that Judge Oliver Wanger did not retract his previous finding that pumping water from the Delta jeopardizes smelt. Rather, the judge seems to want more information to justify when reduced pumping is necessary, said Earthjustice attorney George Torgun, who worked the smelt case.
“I think the judge’s ruling confirms the basic approach of the biological opinion,” Torgun said. “I think we’re certainly disappointed he found a lot of the deficiencies he did.”
“But we think the (opinion) was based on sound science. … It’s going to be a matter of satisfying him (the judge),” Torgun said.
Tuesday’s 225-page decision was the latest milepost in a legal marathon that the judge himself called a “continuing war over protection of the Delta smelt.”
In 2007, Wanger threw out old rules that said Delta pumping did not endanger smelt. That decision led to new rules that forced cuts in the water supply for two-thirds of California, triggering an outcry from south San Joaquin Valley farmers who felt fish had been elevated above people.
Now Wanger has decided the new rules, too, are unlawful.
In Tuesday’s ruling, Wanger targeted several Fish and Wildlife scientific methods as inadequate. Perhaps the most significant:
When the south Delta pumps are churning, smelt and other fish are sucked in and ground up. Rules that limit pumping based on the number of fish killed at the pumps, however, did not take into account the size of the overall population.
In other words, 10,000 smelt may be sucked into the pumps, but the total population may 20,000 or 20 million, Wanger wrote. The rules didn’t make that “obvious” distinction.
The judge also said Fish and Wildlife provided no evidence that pumping exacerbates other problems in the Delta, like invasive species that might chow down on smelt, or pollution and contamination.
A Fish and Wildlife spokeswoman said her agency had not had time to review the ruling Tuesday afternoon.
A similar lawsuit over rules protecting salmon and other species from excessive pumping is still pending.
