Judge sides with farms: Delta water rulings can't focus on fish

FRESNO — A federal judge on Tuesday said water officials must consider humans along with fish in limiting use of the Sacramento-San Joaquin Delta for irrigation, a step that eventually could mean more water for some farmers.

U.S. District Judge Oliver W. Wanger's decision also found that urban and agricultural water users made convincing arguments that the federal government's science didn't prove that increased pumping from the delta imperiled salmon.

The 134-page ruling was a rare victory for water users, including the Westlands Water District and other farmers and ranchers on the west side of the valley.

"We're ecstatic," Westlands spokeswoman Sarah Woolf said.

Fishing industry leaders were disappointed. Zeke Grader, executive director of the Federation of Pacific Coast Federation of Fisherman's Associations, said he wished Wanger could see the devastation in the towns that rely on salmon fishing.

Still to be decided is a related question involving another fish, the threatened delta smelt. A decision on the smelt, involving similar legal arguments, is expected later this month.

Despite Wanger's ruling in favor of urban and agricultural water users, what happens next is unclear.

This morning, the judge will listen to arguments on a request for an injunction stemming from Tuesday's salmon ruling. A court order could immediately result in more water for agriculture at a time when it is badly needed. Water restrictions are in place as part of a management plan that covers endangered winter-run chinook salmon, spring-run chinook salmon and the Central Valley steelhead.

Lawyers with the federal government and environmental groups are expected to tell Wanger today that endangered salmon and steelhead are still migrating through the delta and that relaxing pumping restrictions could harm the species.

With Wanger stressing that the salmon species are still due protection under the Endangered Species Act, that could be enough to forestall an injunction.

Westlands, which has fallowed thousands of acres because of water shortages, will argue that delta water pumping can be increased without harming threatened fish species.

Tom Birmingham, Westlands' general manager, said pumping is at a bare minimum, even though rivers are sending a surge of snowmelt through the delta.

In the longer term, the federal government may have to rewrite portions of the salmon management plan. This, too, could result in more water for west side agriculture.

The current plan, known as a biological opinion, was rewritten after Wanger found that an earlier plan violated the Endangered Species Act by not adequately protecting the salmon.

Tuesday's ruling means the National Marine Fisheries Service, which wrote the salmon plan, likely will have to conduct an environmental study that looks at how the management plan, and any accompanying pumping reductions, affects people.

Wanger found that the federal government "completely abdicated (its) responsibility" to consider other alternatives when it formulated the current biological opinion, decisions that should not only protect endangered salmon, but also "minimize the adverse impact on humans and the human environment."

Still, none of it guarantees water users will see increased water deliveries.

Erin Tobin, an attorney with Earthjustice — an environmental group that joined with the federal government to defend the current salmon plans — said Wanger's ruling shows he is "obviously concerned about harm to the ag communities," but that he also "appears to continue to be concerned about the health of salmon and steelhead, which is a good thing."

Wanger's ruling specifically mentioned not only the salmon species, but concern for salmon fishermen and American Indian tribes as well.

His ruling found that the federal government failed to comply with the National Environmental Policy Act, which required a study that looks at the effect on humans.

In addition, Wanger rejected some arguments put forth by water users such as Westlands, but agreed with others based on the Endangered Species Act — including one argument that the National Marine Fisheries Service failed to explain why its pumping restrictions were appropriate.

A key part of Wanger's ruling that excited water users was his finding that they had a "likelihood of success" on their Endangered Species Act arguments.

That bodes well for the ultimate showdown, scheduled for later this year, when the water users will attempt to invalidate major portions of the biological opinion.

"The exact restrictions imposed, which are inflicting material harm to humans and the human environment, are not supported by the record," Wanger wrote of the water pumping restrictions set in the current biological opinion. "Rather, they are the byproduct of guesstimations and attempts to try to achieve equity."