[env-trinity] Greenwire 2 3 10
bwl3 at comcast.net
Wed Feb 3 12:38:30 PST 2010
An E&E Publishing Service
ENDANGERED SPECIES: Judge signals he'll likely keep ESA limits on Calif.
irrigators (Wednesday, February 3, 2010)
Colin Sullivan, E&E reporter
FRESNO, Calif. -- A federal judge will decide by early next week whether to
relax water pumping restrictions to help struggling farmers in the San
Judge Oliver Wanger of the U.S. District Court for the Eastern District of
California heard arguments here yesterday by the Justice Department,
California water districts, farmers and environmental groups on a pair of
federal biological opinions that have limited pumping on the south end of
the San Joaquin-Sacramento Delta to help endangered salmon.
Pumping in the south end, which feeds irrigators and orchards in the valley,
has been limited since Jan. 20 under a bi-op intended to give the endangered
winter run of chinook salmon a better path to the Pacific Ocean, where they
feed and mature until returning one day to the Sacramento River to spawn
upstream of the delta.
Attorneys for the Westlands Water District, the Metropolitan Water District
of Southern California and state water contractors, among others, urged
Wanger to issue a temporary restraining order that would reopen the pumps
for business. They said a recent run of winter storms, which has soaked the
coast and dumped several feet of snow in the Sierra Nevada, should justify
the suspensions so that a percentage of the water could be stored for use
later in the year.
"There are just volumes of water ... flowing out the Golden Gate Bridge when
they should be and can be captured and put to better use," said Eileen
Diepenbrock, of Diepenbrock Harrison, which represents the Westlands
Bridget Kennedy McNeil, a trial lawyer for the environment and natural
resources division at DOJ, countered that the water was working just as it
was intended to under the federal salmon recovery plan, which Wanger himself
implemented last summer.
"It's not wasted," McNeil said, in a rebuttal to Diepenbrock. "It's water
that's being put to the benefit of endangered species."
A separate attempt to attain a restraining order for the delta smelt bi-op
was rejected in a preliminary ruling by Wanger. He said the question of
raising the delta smelt, which is also endangered, was moot since pumping
restrictions under the smelt recovery plan have not yet been put into
operation this year.
On the salmon bi-op, Wanger seemed to be leaning toward siding with DOJ, the
National Marine Fisheries Service and environmental groups. More than once,
he implied that he would not likely intervene under the Endangered Species
Act because no human dislocation had been caused by the pumping curbs.
In a give-and-take with attorneys, Wanger said economic hardship for farmers
does not appear to rise to the standard imposed by the ESA to favor humans
over a species nearing extinction. The farmers, in other words, might have
better luck changing the law or revising the bi-ops, Wanger appeared to
"They've got to go persuade their legislators that economics should be on
the table," Wanger said. "What is clear is this: The form of any relief in
this case cannot jeopardize or otherwise put species or its habitat at
After the hearing adjourned, at least one attorney for the farmers said that
exchange convinced him that Wanger would turn down the restraining order.
"He seems like he wants to give us the water but just can't under the law,"
this attorney said.
Wanger said he would rule on the restraining order, which could turn the
pumps on for as long as 28 days, by next Tuesday. Separate attempts by the
water districts to attain an injunction of the bi-ops, to resume pumping
through the summer, will proceed in late March or early April.
The court cases, which have been consolidated by Wanger into a single
proceeding, are moving forward as the National Academy of Sciences continues
to review the science behind the bi-ops, a step that was ordered by the
Obama administration under pressure from Sen. Dianne Feinstein (D-Calif.).
Findings from that process are due this spring.
Byron Leydecker, JcT
Chair, Friends of Trinity River
PO Box 2327
Mill Valley, CA 94942-2327
415 383 4810 land/fax (call first to fax)
415 519 4810 mobile
<mailto:bwl3 at comcast.net> bwl3 at comcast.net
<mailto:bleydecker at stanfordalumni.org> bleydecker at stanfordalumni.org
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