San Francisco appeals court upholds plan to protect delta smelt

The Fresno BeeMarch 13, 2014 

A federal appeals court in San Francisco on Thursday upheld the science used in fish protection plans that sometimes cut back water pumping for San Joaquin Valley farmers and Southern California cities.

The Ninth Circuit Court of Appeals decision overturned a 2010 lower court ruling from Fresno, which had held that protections for the delta smelt in the Sacramento-San Joaquin River Delta were not supported in science.

The decision in Fresno would have forced a rewrite of 2008 protections for the threatened smelt, but there were no assurances that more water would have been made available.

The Natural Resources Defense Council and the Bay Institute had appealed the Fresno ruling from U.S. District Judge Oliver W. Wanger. On Thursday, environmentalists applauded the appeals court.

"The decision today rejects the notion that water interests can buy a lot of scientific help to go over every fly speck of the science," said lawyer Trent Orr of legal watchdog Earthjustice, which represented the environmental groups. "The smelt protections should be judged on their merits and the science in the record."

Farm water leaders involved in the case said they were disappointed. Westlands Water District manager Tom Birmingham said the decision basically says the court must defer to the judgment of a federal agency -- the U.S. Fish and Wildlife Service.

"But in this case, there was substantial evidence in the record and introduced in court that the Fish and Wildlife Service's judgment ignored the best scientific and commercial data available," he said.

Westlands, a plaintiff in the lawsuit, is exploring further legal options in the case, officials said. The district would buy more than 1 million acre-feet of delta water each year, if it was available. This year, the allocation forecast is zero.

Westlands and other west Valley farm water leaders have long questioned the science used in pumping cutbacks for protected fish. They say such cutbacks in the 2012-13 winter deprived water users of more than 800,000 acre-feet of water.

Damien Schiff, an attorney with the Sacramento-based Pacific Legal Foundation, representing some farmers in the case, said the decision gives judicial blessing to rules that punish people with only "speculative benefits" for dying fish.

"The Ninth Circuit has done a reverse rain dance for California, practically guaranteeing that the impacts of our current drought will be more devastating," Schiff said in a prepared statement.

NRDC's Kate Poole, lead attorney in the case, said the decision is not about the drought.

"Taking more water out of the delta is not going to solve our problems," she said. "The emergency drought is a statewide problem that affects all of us -- from farmers to fishermen to the average citizen. And it's the drought, not the delta, that's affecting the water supply this year."

Meanwhile, Orr said environmentalists now have "cautious optimism" about a similar case involving endangered salmon. Environmentalists challenged a similar Wanger decision concerning those fish, he said, and the case is expected before the appeals court later this year.

The appeals court decision Thursday sends the smelt case back to district court in Fresno. The ruling said the U.S. Bureau of Reclamation must complete its evaluation of adopting the 2008 protection plan, called a "biological opinion."

In the 2010 smelt decision, Wanger found that while water pumping from the delta can be harmful to smelt, the restrictions established to protect the fish were not justified.

Wanger's decision would have forced a rewrite of the protection plan, but it would not necessarily have meant more water for farm and city customers on the federal Central Valley Project.

Farm water leaders were pleased with Wanger's decision, saying it was a step closer to achieving both restoration of the delta and water supply reliability for the public.

The reporter can be reached at (559) 441-6316, mgrossi@fresnobee.com or @markgrossi on Twitter.

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