Politics & Government

State explores legal course after Fresno delta decision

State officials will meet today to talk about the effect of a ruling late Friday by a federal judge in Fresno that ordered big cuts in delta water pumping to protect an endangered fish.

The state contends the ruling by U.S. District Judge Oliver Wanger will have dire consequences for Valley farmers and Southern California residents who depend on delta water, even though a closer look at Wanger's ruling shows that he included provisions to maintain necessary pumping levels during emergencies.

State and federal officials could pursue at least three legal routes, should the state suffer a protracted drought or face other emergency conditions that could severely affect water supplies.

The director of the California Department of Water Resources, however, remains skeptical of those legal options, even as he and others try to comprehend the ramifications of Wanger's order.

Lester Snow, the state Department of Water Resources head, said he is aware of the options, but he noted that one is time-consuming and the other two might only help urban areas in true peril and not agricultural users.

As of now, those who depend on delta water are still dissecting Wanger's order.

"We're somewhat in a survival mode," said Dan Nelson, executive director of the San Luis & Delta-Mendota Water Authority, which represents farmers on the San Joaquin Valley's west side. "We're looking at any and all options."

Wanger's 30-minute oral ruling late Friday followed an eight-day hearing in which environmentalists and state and federal water officials each offered several witnesses with expertise in fish biology.

The ruling stems from a 2005 lawsuit filed by the Natural Resources Defense Council, which sought to help protect the delta smelt under the federal Endangered Species Act.

The 3-inch-long fish, which only lives a year, is considered an indicator of the delta's health.

At issue are the giant pumping stations that are key to the state and federal water systems, devices that environmentalists say have driven the smelt to the brink of extinction.

State officials, farmers and water contractors immediately criticized the ruling. Among other predictions, state officials said, the ruling could mean that in an average year, 35% less water would be delivered to farmers and urban water users in the Bay Area and Southern California.

But Wanger -- who has heard more than 30 cases involving the Central Valley Project -- tucked legal options in his decision that could allow more water pumping.

Under the federal Endangered Species Act, Wanger said, those involved in the case can ask him to modify the provisions of his order "to protect human health and safety."

"We have a fail-safe here that the court is going to employ," he told both parties.

In addition, Wanger crafted his order as a "preliminary injunction," which allows either side to seek a change in the order if emergency conditions arise.

Both options would be subject to a hearing before Wanger, who would listen to arguments from state and federal water officials, as well as the environmentalists who filed the lawsuit, before making any decision.

Another legal avenue under the Endangered Species Act is to employ a panel of seven Cabinet officials who could find that the economic hardship from reduced water flows is more important than protecting a threatened species.

The panel -- informally known as the "God Squad" -- was added to the Endangered Species Act in 1978.

Snow, the state's water chief, acknowledges that "health and safety" and other emergency appeals to Wanger are options, but said it would likely only help restore emergency services.

He pointed to the state's voluntary shutdown of the huge delta water pumps for 10 days in May after rising numbers of delta smelt were being sucked to their deaths.

Not long after, Snow said, some water contractors served by the South Bay Aqueduct in the Bay Area started having troubles with their water supply.

If that had persisted, he said, firefighters might have had insufficient water pressure to fight fires.

It is that kind of condition, Snow said, that he thinks could be appealed to Wanger.

"I don't think that would help out the ag community very much," he said.

As for the "God Squad," Snow noted it has only been invoked a handful of times since it was added to the Endangered Species Act.

When it was, he said, it was long and time-consuming.

"You only go to it when there is no other action that can be taken," Snow said.

"We're just not at that point yet."

Friday's ruling followed a May ruling by Wanger that threw out a key U.S. Fish and Wildlife Service opinion on water management and pumping in the delta.

His decision required the opinion to be rewritten to protect the smelt.

Friday's ruling will be in effect until that opinion is rewritten.

That is expected to be completed around this time next year.

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