Today, Judge Wanger issued his long-awaited ruling on the legality of the Fish & Wildlife Service’s protections for threatened and endangered fish in the Delta. These protections, described in a 2008 biological opinion, were issued in response to the ecological collapse of the Delta and its native species over the last decade. In particular, the endangered delta smelt has declined at a shocking rate, sounding the alarm for all of us who rely on the Delta for drinking water, agricultural water supply, recreation, or our livelihood, that something is desperately wrong.
Because the biological opinion recommended reducing levels of water exports out of the Delta from the historically-high levels we experienced in the first part of this decade, it was vehemently opposed by many powerful interest groups who profit from a cheap, seemingly endless supply of water from the Bay-Delta’s complex river system. Six different lawsuits were filed, raising many different claims on nearly every aspect of the biological opinion. Although Judge Wanger agreed with a handful of these claims (wrongly, in our view), he rejected the great majority. In addition, Judge Wanger rejected the notion that we could go back to the destructive policies of the Bush Administration, which allowed the state and federal water projects to drastically increase the amount of water they took from the Bay-Delta. Those policies helped lead to the complete closure of our salmon fishing industry, costing California’s economy more than a quarter billion dollars per year and thousands of jobs. As Judge Wanger recognized in an earlier ruling: “the economic pain and hardship has been no less to the fishing industry that relies on salmon than has been the economic consequences to the Central Valley agricultural community.”
Today’s decision explains that “[i]t is undisputed that Project pumping ‘kills Delta smelt by sucking them directly into the pumps; by drawing them into fish ‘salvage’ facilities which collect fish diverted from entering the pumps, a process that kills the smelt; and drawing smelt into the SWP’s Clifton Court Forebay from which the fish cannot escape and where they will die even if they are not drawn into the salvage facilities or the pumps.’” [Page 8, note 3]. The decision also agrees with the conclusion in the biological opinion that entrainment of fish by water project operations causes harm to delta smelt. [Pages 36-38]. The decision confirms that the Fish & Wildlife Service used and relied upon the best available science in numerous places, including in determining the need overall for reasonable limitations on Project pumping to reduce entrainment of fish by Project operations.
Where the decision grants Plaintiffs’ claims, and requires more explanation from the Fish & Wildlife Service, is primarily in areas where the Judge agreed that protections are necessary, but asked for more information about the precise range of flow levels that could be permitted. For example, the Court recognized that the Project pumps harm fish when they cause rivers to flow backwards (specifically, Old and Middle Rivers, tributaries of the San Joaquin River), but he asked for more justification about the specific levels at which permissible negative flows should be set. While the Fish & Wildlife Service demonstrated that large amounts of fish are killed when those rivers run backward at a rate of -5,000 cfs (historically, in the tens of thousands), the Judge asked them to compare those large amounts of fish to overall population levels to ascertain the effect on the population as a whole. [Pages 53-74]. The difficulty with this request is that we have no reliable estimates for the population of delta smelt as a whole; only comparative measures of abundance from year to year. Importantly, when federal scientists attempted to use these comparative abundance levels to refine the flow range in court, the result was a flow cap of -4,000 cfs – a more restrictive cap that would result in a lower level of water exports than the current cap of -5,000 cfs. [Page 70].
Similarly, the decision questions the agency’s use of an alternative model and data when the one preferred by the water contractors gave unreasonable and unrealistic results. [Pages 93-94]. Although the Court (and we all) would prefer to have perfect data and perfect models on which to base our decisions, such is not the perfect world in which we reside. We must – and, we believe, the FWS did – use the best information that is available to us. The law does not require anything more.
In fact, the decision itself explicitly ignores the multitude of scientific evidence issued after the biological opinion was released that supports its analysis and conclusions. Judge Wanger acknowledged but refused to consider the fact that the National Academy of Sciences – perhaps our most esteemed scientific body – has completed a comprehensive review of the biological opinion and concluded that it was “scientifically justified.” [Pages 12-13]. Similarly, the Judge refused to consider an independent peer review conducted by another firm at the request of one set of plaintiffs that endorsed the approach and conclusions of the biological opinion. The State Water Resources Control Board has also subsequently confirmed that higher flows than present are needed in the Delta to restore the estuary and its fisheries. Perhaps when the analysis is brought back into the realm of the professional biologists, these important omissions will be corrected.
Ultimately, we are disappointed by today’s decision because it merely prolongs the battle over the restoration of the Delta and its ecosystem in the quest for more perfect information that we are unlikely ever to obtain. The best way to restore a stable and predictable water supply from the Delta is to restore it as a functioning ecosystem. It’s time to get down to it.