[env-trinity] Wanger ruling on Delta smelt OCAP biop: feds must consider effects to humans-- not just fish-- when allocating delta water

Byron Leydecker bwl3 at comcast.net
Sat May 23 13:11:19 PDT 2009

Does this mean that BOR/DWR needs to consider the impacts of pumping on the
economic viability of fisherman and fishing communties?  How about the
economic viability of Trinity County?

If anyone has a copy of Wanger's Order, I'd appreciate your sending me a





The Fresno Bee


Ruling: Humans, not just fish, to factor in divvying delta water Published
online on Friday, May. 22, 2009

By John Ellis

A federal judge stunned and delighted west-side farmers on Friday, ruling
that the federal government must consider the effect on humans -- not just
fish -- when allocating delta water.

U.S. District Judge Oliver W. Wanger did not tell officials how to operate
the Central Valley Project, and he said it was up to them to manage the
massive water pumps in the Sacramento-San Joaquin Delta.

But Wanger said officials must focus not just on protecting the endangered
delta smelt when discussing these issues. They also must take into account
"the harm being visited upon humans, the community and the environment." He
also said officials must explain and justify how they reached their
water-allocation decisions.

A few months ago, the federal government in effect reduced the volume of
water pumped out of the delta by issuing new rules to protect the smelt.
That means west-side growers are receiving less water for crops.

Wanger's ruling Friday raised growers' hopes of getting some of that water
back, although the case is far from over.

As Wanger prepared to rule Friday, west-side farmers and members of the
Westlands Water District and the San Luis & Delta-Mendota Water Authority
sat in the courtroom with long faces, expecting the worst. But after a
series of losses to environmentalists, they instead found themselves on the
winning side.

"The long and short of it for us today is this is a good thing, for the
simple fact that it recognizes the impact that is being felt" by farmers and
residents of the San Joaquin Valley's west side, said Westlands Water
District spokeswoman Sarah Woolf.

Wanger's ruling followed a four-hour hearing on a lawsuit by Westlands and
the San Luis & Delta-Mendota Water Authority to stop the federal government
from enforcing a new management plan for the delta smelt.

The lawsuit was filed in March, more than two months after the U.S. Fish and
Wildlife Service released a new set of federal rules to protect the smelt.
The updated rules -- known as a biological opinion -- were drafted after
Wanger had invalidated earlier regulations because they did not comply with
the federal Endangered Species Act.

A central piece of the lawsuit sought to nullify the updated
smelt-management plan. Wanger made no ruling on that part of the lawsuit.
But he found that a second claim -- that the new smelt plan lacked an
assessment on the environmental effect on humans -- was valid.

The updated smelt-management plan resulted in a sharp reduction in water
deliveries for agricultural and urban users, not only in the San Joaquin
Valley, but also in the Bay Area and Southern California. It's not known if
Wanger's order will prompt the federal government to increase water
deliveries from the delta.

But Wanger made it clear that if the water exports stay at current levels --
which west-side officials say are too low and give no consideration to human
needs -- federal officials must explain why.

Wanger said the delta smelt remains endangered and at risk of extinction,
but he also said Valley residents are facing adverse environmental effects
driven by a persistent drought and a cut in water deliveries.

He said the adverse environmental effects include dust rising from fallowed
fields that could lead to a decline in air quality. High unemployment rates
in west-side Valley towns also are an effect of the water decisions, Wanger

Wanger's order is in effect through June 30, or when the water temperature
in two delta channels -- Old River and Middle River -- reaches 77 degrees
Fahrenheit for three days. Higher temperatures can adversely affect the

The order's temporary nature almost certainly sets up more legal battles
between the two sides. James Maysonett, who represented the federal
government, asked Wanger on Friday to hold off on his order while it is

Wanger denied the motion.

Kate Poole, an attorney with the Natural Resources Defense Council, said she
didn't like Wanger's ruling, but she said no decision had been made on
seeking an appeal.

Friday's hearing set up a strange twist: Daniel O'Hanlon, who represented
Westlands and the San Luis & Delta-Mendota Water Authority, found himself
pitted against federal attorneys who for years were his allies against
environmental groups. This time, federal and environmental attorneys were
allied against Westlands and San Luis.
The reporter can be reached at jellis at fresnobee.com or (559) 441-6320.

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