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Judge Wanger issues injunction against federal Delta Smelt Plan


FRESNO, Calif. – On May 29, U.S. District Judge Oliver W. Wanger granted a preliminary injunction requested by San Joaquin Valley agribusiness against the U.S. Fish and Wildlife Service biological opinion for Delta smelt, a plan providing for increased protection for the imperiled fish.

The state and federal pumps will increase water exports to San Joaquin Valley growers unless the USFWS can justify reduced pumping on a week by week basis, according to Bill Jennings, chairman of the California Sportfishing Protection Alliance. Westlands Water District and the San Luis & Delta-Mendota Water Authority filed suit in March against the USFWS biological opinion, alleging failure to comply with the National Environmental Policy Act, and requesting a preliminary injunction.

The injunction takes place at a time when Delta smelt, an indicator species that demonstrates the health of the Sacramento-San Joaquin River Delta, has declined to its lowest population level, according to surveys by the Department of Fish and Game. The collapse of Delta smelt is paralleled by the dramatic decline of longfin smelt, threadfin shad, juvenile striped bass, green sturgeon and Central Valley Chinook salmon. The Delta smelt and other estuary fish populations have crashed because of increases in water exports, toxic chemicals and invasive species in recent years.

In issuing the injunction, Wanger agreed with the plaintiffs that the reduction of exports to their agricultural operations would result in “irreparable” economic and environmental harm in violation of NEPA.

“Plaintiffs have shown that irreparable harm will likely occur in the absence of injunctive relief, including loss of water supplies, damage to permanent crops, including orchards and vineyards, crop loss or reduction in crop productivity, job losses, reductions in public school enrollment, limitations on public services, impaired ability to reduce the toxic effects of salt and other minerals in the soil, groundwater overdraft, increased energy consumption, and land fallowing that causes air quality problems,” the judge said.

Wanger also concluded that USFWS “must explain why alternative, less restrictive OMR flows would not adequately protect the delta smelt, considering location, abundance, entrainment, and all other assessment criteria currently in use, to evaluate risk to the species.”

He overruled the objections of two environmental interveners, NRDC and the Bay Institute, to the admission of economic harm evidence under NEPA. However, he also overruled the plaintiffs’ objections to the admissibility of a declaration by Dr. Jeffrey Michael, University of the Pacific economics professor, who has compiled economic data showing the agribusiness claims of harm from the “drought” and Delta pumping restrictions are greatly exaggerated, since the total number of farm jobs in the San Joaquin Valley increased over the past two years.

Fishing and environmental groups criticized Wanger for reverting to his traditional pro-agribusiness and anti-environmental stance on water issues in granting the preliminary injunction.

“Wanger has agreed and issued injunctive relief requiring the service to first justify export restrictions on a weekly basis to the court before implementing them,” Jennings said. “Judge Wanger is now reverting to his historical form and demonstrating why water agencies have made every effort to ensure that cases involving exports and the pumps are before his court.”

Jennings also pointed out that the ruling gave priority to junior water rights holders in Westlands Water District, in violation of California’s water rights priority system.

May 31: The day the pumps stood still

The U.S. Fish and Wildlife Service has required significant reductions in water exports in order to prevent Delta smelt from being killed at the pumps this spring. On May 31, the Delta pumps were silent because the salvage of Delta smelt at the state and federal project pumps had reached 423 the previous day. The legal limit for take in May was 449, while the concern level is 299, according to Bill Jennings, chairman of the California Sportfishing Protection Alliance. “DWR and the bureau would have been in violation of the take provisions of the federal Endangered Species Act had they salvaged 27 more Delta smelt the next day. Had that occurred, I’m sure some imprudent, radical, recklessly unreasonable and irresponsible group of environmental stone throwers like us would have surely sued. So, perhaps for the first time, both the Banks and Tracy pumping plants were shut down (Banks actually shut down the day before). “I suggest that we set aside May 31 as an annual CSPA holiday in celebration of the Day the Pumps Shut Down. Perhaps, May 31 should be our annual fundraiser, as it symbolizes our holy grail.” Miraculously, reverse flows in Old and Middle Rivers suddenly went positive (+925 cfs) and no smelt were taken at the pumps. “Imagine that: no exports equals no dead smelt or splittail,” Jennings said. Unfortunately, June 1 started a new calendar and the pumps were restarted. “But, for one shining moment, the export pumps (which the contractors keep telling us are not the problem) were quiet and the killing stopped,” Jennings concluded.

“Wanger ignored California’s water rights priority system in which junior water rights holders are not equal with senior water rights holders. He also didn’t consider the economic damages to the recreational and commercial fishing industries resulting from increased water exports. Wanger is attempting to turn around California’s water rights system by saying that those at the end of the line, whose water supplies can be interrupted in low water years under their contracts, are the same as those at the beginning of the line.”

He also noted that this ruling, which states that the Fish and Wildlife Service violated NEPA, could also apply to the Bureau of Reclamation’s exports of water from the Delta under the Drought Water Bank without a review of the economic consequences to Delta farmers and the commercial and recreational fishing industries.

The Pacific Legal Foundation, a group that defends Westlands and other agribusiness interests in court, praised Wanger’s ruling, although they pointed out that it doesn’t require the federal agency to prepare an environmental impact statement.

“Judge Wanger ruled in Westlands’ favor on the claim that the FWS failed to comply with NEPA in issuing the biop,” the group said in a statement. “As a result on the preliminary injunction, FWS is not required to prepare an EIS. But it may not impose the most restrictive flows under RPA Component 2 unless it justifies why that would be necessary to protect the smelt.”

Gov. Arnold Schwarzenegger, whose office issues a constant stream of “green energy” press releases and photos to falsely portray him as the “Green Governor,” reverted to his role as “the Fish Terminator” when he lauded the Wanger decision and used it as an opportunity to promote “updating California’s water infrastructure” by campaigning for a peripheral canal and more reservoirs. Ironically, Schwarzenegger is pushing the canal/dams boondoggle, estimated to cost between $12 and $24 billion, at a time when the state is in its biggest-ever financial crisis.

“With this decision, the federal court has placed itself in the daily operations of California’s major water delivery systems,” Schwarzenegger said. “While Judge Wanger’s decision will likely provide additional balance to the operation of the state and federal water projects in the Delta, these are just the latest indications that our water crisis is growing. Rather than a piecemeal approach driven by lawsuits and federal courts, we need a comprehensive strategy that upgrades California’s water infrastructure to ensure a clean and reliable water supply for our growing state and our environment.

A number of water export contractors have filed a series of lawsuits against USFWS over the biological opinion and the Department of Water Resources asked for a reconsideration of the plan. “We’ll now see the resolve of the USFWS: wimps or defenders of the estuary,” Jennings said.

Wanger’s decision to grant the injunction was preceded May 7 by a petition by Lester Snow, DWR director, to the USFWS to weaken the rules in the biological opinion because of the “drought” and the supposed discovery of a “new population” of Delta smelt in the Liberty Island area.

PLF has also launched a new lawsuit against the Delta smelt, calling the federal government’s protection of the imperiled fish “unconstitutional” and “immoral."

Fishing and environmental groups view the Obama administration’s upcoming responses to Wanger’s preliminary injunction, the DWR petition and the latest PLF lawsuit as a litmus test as to whether the administration will defend the imperiled estuary and the thousands of jobs that depend on it or buckle under pressure from corporate agribusiness and the Schwarzenegger administration.