Federal judge hands delta water users second victory

FRESNO — For the second time in nine days, a federal judge has handed a victory to urban and agricultural water users who are seeking to increase pumping levels in the Sacramento-San Joaquin Delta.

Released late Thursday, U.S. District Judge Oliver W. Wanger's 126-page decision involving the threatened delta smelt has many similarities to one issued last week on endangered salmon.

As with the salmon ruling, Wanger found that water officials must consider humans along with the smelt in limiting use of the delta for irrigation. He also found that water users made convincing arguments that the federal government's science didn't prove that increased pumping from the delta imperiled the smelt.

Tom Birmingham, general manager of the Westlands Water District said that after the court's finding related to the salmon management plan, he was "not surprised the court concluded the smelt (plan) suffers from the same defects."

Still, Wanger's ruling recognizes that the smelt are on the brink of extinction, and as water users seek to increase pumping levels that have been reduced to protect the tiny fish, they likely will face a tougher challenge than with the salmon.

Water users' request for a court order lifting pumping restrictions for the smelt will be argued at a hearing today at 10 a.m.

Wednesday, Wanger temporarily lifted delta pumping restrictions designed to help endangered salmon, siding with water users who said the move would not harm the fish. Those restrictions were to be in place through June 15. Since the ruling, federal water managers have gradually been increasing delta pumping.

But pumping restrictions designed to protect the smelt — which had been on the back burner because they are looser than those covering the salmon — could come into play. Those restrictions are in place through June 30.

Water users need to convince Wanger that the smelt are in the north and west areas of the delta, away from the pumps, and not in the estuary's south and central regions, where they could be in danger.

If Wanger isn't convinced and denies the water users' request, pumping restrictions for the smelt could erase nearly every drop of water gained by the judge's salmon ruling.

Doug Obegi, an attorney with the Natural Resources Defense Council, said there is concern for both species.

"We hope the decision does not drive the smelt closer to extinction while scientists refine" plans for the fish, he said. "It is definitely a bit frustrating."