Biological opinion decision could increase Delta water pumping through mid-June


Capital Press

Irrigators are hailing a ruling by a federal judge that says the National Marine Fisheries Service needs better science to support pumping reductions from the Sacramento-San Joaquin Delta as a means of helping salmon populations.

Farm interests see the ruling as a validation of arguments that irrigators have been making for months and say it could impact a similar lawsuit concerning the protected Delta smelt, which the same judge is hearing in the next few weeks.

U.S. District Judge Oliver Wanger in Fresno, Calif., said the federal government did not properly develop a management plan that restricted water exports to protect endangered salmon, steelhead and other fish.

Wanger said pumping restrictions were necessary to protect those species, but the agency did not adequately explain how they determined specific pumping levels.

"The exact restrictions imposed, which are inflicting material harm to humans and the human environment, are not supported by the record," Wanger wrote in the 134-page ruling, calling the restrictions the "product of guesstimations."

The U.S. Fish and Wildlife Service published a biological opinion in late 2008, saying greater pumping restrictions were needed to protect the tiny Delta smelt from being drawn into the pumps that send water southward. In 2009, the National Marine Fisheries Service published another bio-op, saying in part that pumping must be reduced in the spring to protect salmon runs.

The water districts have asked for an injunction that would suspend the rules under the salmon opinion until NMFS reworks its salmon management plan. Wanger heard arguments supporting the injunction May 19, and has scheduled a hearing Tuesday to hear those opposing the injunction. He has indicated he could make a prompt ruling.

But even if Wanger grants the injunction next week, it would mean that pumping would be increased from the Delta only through mid-June.

Farmers and lawmakers have argued that the federal biological opinions lack sufficient science to prove that pumping restrictions alone can save the fish.

Wanger's decision was also seen to bolster findings by the National Academy of Sciences this year that the biological opinions were flawed. The review was requested by Sen. Dianne Feinstein, who drew criticism for complicating the state's efforts to formulate a long-term Delta management plan.

The academy published its first study in March, saying the science behind the biological opinions contained uncertainties. A second report is expected next year. Backed by the academy's findings, Feinstein called on the Obama administration to implement the rules with more flexibility.

It's that flexibility that plaintiffs are seeking in their injunction request, said Sarah Woolf, spokeswoman for Westlands Water District, which has suffered under reduced federal pumping from the Delta during the state's drought conditions.

The biological opinion restricts Delta pumping from April through mid-June, when young salmon descend to the ocean. Plaintiffs want only the normal rules to apply during that window, Woolf said -- that means adjusting the pumps with respect to whether protected species are observed nearby.

"There is no science that says by turning off the pumps we have helped to save species," Woolf said.

How the ruling impacts farmers this year and next year depends on whether Wanger decides to grant injunctive relief. The judge can also decide whether this year's injuction will apply next year, or whether another review of the Delta's conditions will warrant revisiting pumping restrictions, said Dan Nelson, executive director of the San Luis and Delta Mendota Water Authority, one of the plaintiffs.

Nelson said plaintiffs hope the case leads to winning a larger victory -- convincing the Obama administration that the agencies' efforts to regulate the Delta through isolated biological opinions is a flawed approach.

"That's what we're hoping will come from all this," Nelson said.

Environmentalists, fishermen and tribal communities that defended the water management plan in court were disappointed by Wanger's ruling, said Doug Obegi, a staff attorney for the Natural Resources Defense Council.

"We will urge the court to uphold these protections for salmon and the fishing and tribal communities that depend on them," Obegi said. "Weakening those pumping restrictions will jeopardize those species."

The Associated Press contributed to this report.

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