May 25, 2010

Judge lifts restrictions on pumping Sacramento-San Joaquin Delta water

FRESNO -- A federal judge in Fresno on Tuesday temporarily lifted Sacramento-San Joaquin Delta pumping restrictions designed to help endangered salmon, siding with urban and agricultural water users who said the move would not harm the fish.

The order by U.S. District Judge Oliver W. Wanger will be in place until June 15. For west side agriculture -- including farmers and ranchers in the Westlands Water District -- that could mean an extra 200,000 acre-feet of water, said Tom Birmingham, Westlands' general manager.

In real-world terms, he added, it will mean an additional 75,000 acres of farmland could be put back into production -- and with it more people put to work.

"I am thrilled with the ruling," he said.

But in the complicated world of water law, whether the increased water deliveries actually happen is still unclear.

Pumping restrictions designed to protect another threatened fish, the tiny delta smelt, have been on the back burner because they are less restrictive than those covering the salmon. But now that the salmon restrictions have been lifted, "in theory, the smelt restrictions should limit" pumping, said Doug Obegi, an attorney with the Natural Resources Defense Council, which opposed the water users' request.

Even Birmingham admitted as much, saying the possibility exists that the smelt pumping restrictions could wipe out every drop of water gained by Tuesday's ruling.

However, he added, pumping restrictions this year to help the smelt -- which is listed as a threatened species -- have so far been less onerous than last year.

Also in play is a pending Wanger ruling involving the delta smelt, which involves similar legal arguments to those used for the salmon.

That ruling -- which could affect pumping restrictions for the smelt -- is expected any day, and will almost certainly play into the delta pumping picture.

In addition, the federal government and its environmental allies could appeal Wanger's ruling to the 9th U.S. Circuit Court of Appeals.

No decision on that has been made, Obegi said.

Wanger also ordered federal officials to monitor the increased pumping. If more endangered spring-run Chinook salmon or Central Valley steelhead are found around the pumps or being killed by them, the federal government or environmental groups can ask Wanger to reverse his ruling.

After successfully forcing a management plan that covers endangered winter-run Chinook salmon, spring-run Chinook salmon and the Central Valley steelhead to be rewritten in 2008, environmentalists were stunned by the turn of events.

"It's bad news for the fish, it's bad news for the fishermen," Obegi said, referring to the salmon fishing industry, which has been hammered by a huge decline in the salmon population.

The ruling followed Wanger's decision last week that found water officials must consider humans along with fish in limiting use of the delta for irrigation. That decision also found urban and agricultural water users made convincing arguments that the federal government's science didn't prove increased pumping from the delta imperiled salmon.

Tuesday's hearing lasted more than five hours and stretched into the evening. The hearing featured dueling biologists -- one representing urban and agricultural users, the other working for the federal government -- who gave vastly different opinions on the state of the salmon.

At issue for Wanger: Would increased pumping imperil the species? The burden of proof that it wouldn't was on water users. Their argument was summed by Clifford Lee, an attorney representing the state Department of Water Resources: "Most of the listed species have left the building." In other words, most of the endangered spring-run Chinook salmon and Central Valley steelhead had already passed through the delta and out to the Pacific Ocean.

U.S. Department of Justice attorney Bridget Kennedy McNeil countered that what the water users were seeking was the "same operational scheme" that Wanger had invalidated in the previous salmon management plan because it jeopardized the species.

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