Delta pumping violates endangered species laws, judge rules { Smelt over people}

Contra Costa Times ^ | 5/26/7 | Mike Taugher

[SmithL]

A federal judge Friday ruled the permit that allows massive Delta water delivery projects to kill a tiny endangered fish is illegal. It is the second time in two months that a court has declared the state's water projects in violation of endangered species laws.

The ruling comes the same week new information emerged showing the Delta smelt population has plunged yet again closer to extinction.

U.S. District Judge Oliver Wanger in Fresno did not immediately revoke water agencies' ability to operate, saying such a step would amount to a "draconian" impact on the state's farms and cities.

However, his 120-page order seems likely to lead to cuts in the amount of water taken out of the Delta for use in the East Bay, Silicon Valley, San Joaquin Valley and Southern California.

At issue is a 2005 document issued by the U.S. Fish and Wildlife Service that is supposed to analyze the impact the water projects have on Delta smelt and then set limits on those projects to ensure the fish does not become extinct.

Wanger ruled that the document failed to include information that showed smelt populations were in very bad shape, and that it opted for a voluntary approach instead of setting firm requirements to protect fish. The order said the Fish and Wildlife Service's document was too lenient to satisfy the Endangered Species Act.

"I think it sends a pretty strong signal that the agencies have to comply with the law rather than just skate by," said Andrea Treece, a Advertisement lawyer for Earthjustice who argued the case for environmentalists. "They are going to have to start taking species protection seriously. Even if they don't care about the species itself, but just to keep their authorization going."

The ruling is the latest in a dizzying swirl of developments that have thrown the future of the Delta ecosystem and the state's ability to sustain massive water deliveries into deep uncertainty.

The federal permit ruled illegal Friday covers the harm state and federal pumping projects near Tracy do to Delta smelt. A separate lawsuit is ongoing that challenges the water projects' authorization to harm protected salmon runs.

Last month, an Alameda County judge ordered the state-owned pumps shut off because no permit was ever issued under the state endangered species law. That order has been put on hold pending appeal.

And all of the legal action is playing out against a backdrop in which the Delta's open-water fish species, especially the Delta smelt, are plummeting. Scientists do not know exactly why the ecosystem is crashing, but say it is likely that invasive species, toxic substances and the water projects are all to blame.

Wanger's order amounts to confirmation that the water projects, which supply water to 25 million Californians and irrigate millions of acres of prime farmland, are operating in violation of endangered species laws.

His order, unlike the Alameda County order, also addresses the federal water pumps that primarily serve San Joaquin Valley farmers.

A spokesman for the federal water agency, the U.S. Bureau of Reclamation, said a new permit to harm Delta smelt was in the works and scheduled to be done by July 2008.

"I don't know what happens in the meantime. We've never been here before," said the spokesman, Jeff McCracken.

Al Donner, a spokesman for the Fish and Wildlife Service, also mentioned the ongoing work on a new permit.

The state Department of Water Resources, which has now been told by two different courts that its water operations are in violation of both state and federal endangered species laws, had no comment.

Bill Jennings, executive director of the California Sportfishing Protection Alliance, said environmentalists and Delta advocates were "euphoric" and "vindicated" by Wanger's order.

"The federal (biological opinion) was developed for the convenience of water diverters rather than the protection of species," Jennings said. "It's a great day for the environment."

Wanger wrote in his order that he would hold a hearing on how to remedy the situation within 30 days.

Treece, the lawyer, said environmentalists would press the judge and the water agencies to follow recommendations from scientists about how to protect the fish.

"Maybe the agencies will start listening to their scientists now," she said.

Mike Taugher covers natural resources. Reach him at 925-943-8257 or mtaugher@cctimes.com.

* * * * *

PAIN AT THE PUMPS

A hearing to consider how to bring massive Delta water projects into compliance with endangered species law will be scheduled within 30 days. Environmentalists are expected to push for a reduction in water pumping, a step that would protect the ecosystem but reduce the amount of water available to Delta-dependent regions from Dublin to San Diego.

[SmithL]

Wanger, Oliver Winston

Born 1940 in Los Angeles, CA

Federal Judicial Service:
Judge, U. S. District Court, Eastern District of California
Nominated by George H.W. Bush on January 8, 1991, to a seat vacated by Milton Lewis Schwartz; Confirmed by the Senate on March 21, 1991, and received commission on March 25, 1991. Assumed senior status on May 31, 2006.

Education:
University of Southern California, B.S., 1963

University of California, Berkeley, Boalt Hall School of Law, LL.B., 1966

Professional Career:
U.S. Marine Corps Reserve Sergeant, 1960-1967
Deputy district attorney, Fresno County, 1967-1969
Adjunct professor, Humphrey College of Law, 1968-1969
Private practice, Fresno, California, 1969-1991
Adjunct professor, San Joaquin College of Law, Fresno, California, 1970-1991
Dean of the law school, 1980-1983
City attorney, City of Mendota, California, 1975-1980
Temporary judge, Superior Court of California, County of Fresno, 1988
Pro tem settlement conference judge, Superior Court of California, County of Fresno, 1989


Race or Ethnicity: White

Gender: Male

[TheZMan]

Good. When they don’t have any water to drink, take baths, flush the toilet, or water their all natural herb gardens with and start b@#$hing about it, hopefully someone will point out they’re suffering because of some stupid a@# fish.

We’re back to the newest hypocrisy to bust across the US. Logic, facts and reason have nothing to do with decision making. Am I the only one that’s noticed the latest rash of admittance that this is the case?

[mirkwood]

In downeast Maine the smelt population is huge. Everyone here fishes for smelt.

[the invisib1e hand]

i thought “delta pumping” was something that options traders did.

[Islander7]

I hope they can get this worked out. If not all the freaks may have to leave and Californicate the rest of the country

[cmsgop]

No Smelt For Oil !!!

[kittymyrib]

All those illegal “immigrants” really do put a strain on CA resources. They ought to make them bring their own water.

[HiTech RedNeck]

If those are the same smelt, then let the water pump!

[JB in Whitefish]

Darn over privileged College Kids...!!!

This whole THING has been caused by former members of “I Smelta Delta”

[Seadog Bytes]

The Green Din continues unabated...

(Ag land) - (water) = ('open space')
...Funny how that works, isn't it? (It's never been about the 'environment'... It's about 'control'.)

[patton]

It is a good thing, when the Government is forced to follow the law.

Especially when the law is idiotic.

[SierraWasp]

It’s on a cresendo, via the mindless megaphone of the MSMediots!!!

[Seadog Bytes]

RE: Extra Maine Smelt

Well, I suppose we COULD just solve the 'problem' by importing some of those 'extras' to the West Coast, but for the 'carbon count' impact (Thanks to Fred Nerks for this link http://www.theaustralian.news.com.au/printpage/0,5942,21655408,00.html\ of transporting them all the way across the country... I guess we'll just have to teach them to swim around...sigh.

Oh wait! THAT won't work. The 'experts' here are currently having a TERRIBLE time just getting two solitary whales to leave the Sacramento shipping channel!

...But, even so, similar ("California-leading-edge") 'experts' feel highly confident that they can easily change the world's CLIMATE. (...Am I the only one who 'feels' the irony of such arrogant environmental puffery?)

...Perhaps THIS (below) would actually be a better solution to our REAL problem...

Oh...Does anyone remember how to enter the 'end rant' code...?...

[SierraWasp]

"(...Am I the only one who 'feels' the irony of such arrogant environmental puffery?)"

You are NOT alone!!! Most CERTAINLY not!!!

[Fred Nerks]

brilliant comment...just correcting the link you gave me credit for:

http://www.theaustralian.news.com.au/printpage/0,5942,21655408,00.html

[Seadog Bytes]

Any brief 'brilliance' on MY part is purely accidental... grin.

However... that was a GREAT link you shared. Indeed, the potential (and actual) poisoning of our children's minds is something we all should fear greatly... WAY more than a few inches (or centimeters) of additional water here and there.

[SunkenCiv]

Luckily, the Alpha, Beta, and Gamma pumping is all still OK. Whew.

[potlatch]

Lol, very good comedic and serious post all combined!!

[Seadog Bytes]

RE: Whales in the Sacramento shipping channel

Oh, I know this must seem like a silly local situation to most, but this is a CRITICAL issue here! ...It's important to get those whales OUT of the river... before the Enviro-whackos start demanding 'fish-ladders' be installed, all the way up to Eureka, for Humpbacks, as well! ...I can't even IMAGINE how expensive THAT would be...