[env-trinity] Contra Costa Times 6/14/10

Byron Leydecker bwl3 at comcast.net
Mon Jun 14 10:35:13 PDT 2010

Delta water rulings could affect endangered species law

Contra Costa Times-6/14/10

By Mike Taugher


Recent court rulings on Delta fish protection measures threaten to open the
floodgates for lawsuits to weaken rules protecting endangered species.


U.S. District Judge Oliver Wanger ruled in two Delta cases that pumping
restrictions meant to protect endangered fish could be relaxed because
federal scientists had inadequately justified them and because the
government had not done separate studies on their effect.


The decisions cheered water agencies and property rights advocates but
alarmed environmentalists.


"I think it's actually a brilliant opinion in that it finally says we have
to look at the big picture here, and not that endangered species trump
everything," said Roger Marzulla, a Washington, D.C., environmental lawyer.


Others question the logic of requiring scrutiny of species protection rules
under a second environmental law.


"It doesn't make any sense to do environmental analysis on the back end when
you're trying to help the environment," said Holly Doremus, a professor at
UC Berkeley's Boalt Hall School of Law. "What he's saying is the agencies
have to find absolutely the least burdensome way to save the species."


She said it would be impossible to pinpoint the knife's edge between saving
species from extinction while not taking from farmers a single drop more
than needed.


The decisions are likely to be appealed by environmentalists, the federal
government or both.


If the decisions stand, Marzulla and Doremus agreed on the likelihood of
more lawsuits from others -- including builders, farmers, ranchers or anyone
else -- affected by endangered species regulations.


Ever since the U.S. Supreme Court in 1978 ruled in favor of another fish --
the snail darter, which was threatened by the Tennessee Valley Authority's
plan to build a dam -- the law has held that economic cost may not be
balanced against the threat of extinction.


Wanger did not contradict that principle, but he said federal regulators
lacked adequate scientific evidence for their Delta pumping restrictions.


And he said the government should have done an environmental impact study to
look for alternatives and determine the impact on the "human environment."
The Delta cases, Wanger ruled, are unlike the snail darter case because the
regulations have affected human welfare by increasing unemployment, for


Several government officials and lawyers said such studies are never done on
endangered species rules, though they are often done on the projects on
which the rules are applied.


Indeed, environmentalists for years have argued that Delta pumping itself
needs such studies.


Wanger denied such a request in 2007, but later ruled in favor of
environmentalists who said the federal pumping permits were linked to the
decline of Delta smelt and salmon.


When he struck down those permits, the deadlines he set for federal agencies
to complete new permits were almost certainly too short to complete the
detailed environmental analyses.


But now he has ruled that since those analyses were not done, the pumping
restrictions could be weakened.


Wanger also criticized the scientific justification for the limits imposed
in the permits.


In ruling that the federal water restrictions lacked sufficient scientific
support, Wanger went further than a committee appointed by the National
Academy of Sciences that studied the rules. It found them conceptually
justified, even though it said more study was needed of the specific limits
placed on the pumps.



Byron Leydecker, JcT

Chair, Friends of Trinity River

PO Box 2327

Mill Valley, CA 94942-2327

415 383 4810 land/fax

415 519 4810 mobile

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