[env-trinity] Judge Wanger's 2/5 TRO based on NEPA, not ESA issues

Byron Leydecker bwl3 at comcast.net
Mon Feb 8 13:29:07 PST 2010

Below are Bill Kier's comments to the LA Times journalist's (Bettina Boxall)
article on Wanger's ruling.  




To: bettina.boxall at latimes.com

From: Kier Associates <kierassociates at suddenlink.net>

Subject: Judge Wanger's 2/5 TRO based on NEPA, not ESA issues


I just read your 6 Feb Times piece headlined 'Judge eases curbs on delta
pumping' - and picked up on your line "He concluded that the additional
pumping would not seriously harm the young winter-run salmon moving through
the delta to the sea, .."

I read Wanger's TRO, attached, differently

'Tho' I'm a fisheries scientist, not an attorney, I read Wanger's order as
turning on a National Environmental Policy Act paperwork glitch (see that
sentence that starts at the line 4 on page 21 of the TRO), not on the merits
of the National Marine Fisheries Service's (NMFS) salmon science, its
Endangered Species Act Biological Opinion, nor the merits the 'Bi-Op's'
Reasonable and Prudent Action IV.2.3 - that which tried to restrain 'reverse
flows' in the southern Delta, they which suck the baby salmon to their
deaths at the pumps. 

That is, Wanger didn't make a judgement about how much harm would be done to
the ESA-listed Sacramento River winter-run salmon - at all - he simply did a
'gotcha' because he thought Reclamation should have had another handful or
two of action options strewn among their NEPA compliance paperwork

That is, it's NMFS that identifies the problems for protecting ESA-listed
salmon associated with the federal Bureau of Reclamation's Tracy pumps
operations and it's NMFS, in consultation with Reclamation, that crafts
solutions to those problems - e.g., RPA IV.2.3 - and it's Reclamation, then,
that must do the necessary NEPA compliance paperwork for their 'project', in
this case, their pumping operations at their Tracy pumps

So here's an agency - Reclamation - that can get their NEPA paperwork right
every time for the soaring edifices they create in concert with their water
district customers, but can't get a fairly simple piece of NEPA paperwork
done right in concert with a fisheries agency from another department of the
gov't (NMFS is in the Dept of Commerce)

Go figure!

Bill Kier

Kier Associates, Fisheries and Watershed Professionals
P.O. Box 915
Blue Lake, CA 95525
mobile: 498.7847 
http://www.kierassociates.net <http://www.kierassociates.net/> 
GSA Advantage Contractor GS-10F-0124U 


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