On Tuesday, Judge Wanger issued what is likely his final ruling in the struggle to protect California’s mighty streams and rivers from the destructive impacts of excessive water diversions. His 279-page decision is not a surprise in light of the Judge’s previous rulings and the mountain of complaints that corporate agribusiness and others lobbed at the 2009 biological opinion. But it is a disappointment.
What’s in those rivers worth protecting? For one thing, our majestic king salmon runs and the many coastal fishing towns and families who rely on salmon fishing to make a living. For another, the thousands of family farmers in the Delta who rely on clean, clear flows to keep their crops growing.
The very life-blood of the Winnemem Wintu tribe, who define themselves by the water that flows and the salmon that swim in our rivers. And the intricate web of life that is sustained by healthy rivers, including all of us who drink the waters, recreate in the cooling flows, and revel in the birds and wildlife supported by our rivers and streams.
The Judge’s ruling is disappointing because he recognized (as any rational observer must) that the way in which the water projects operate the state’s many dams and reservoirs and the massive water diversion pumps in the Delta jeopardizes the very existence of most of our native salmon runs, steelhead, sturgeon, and other fish that try to run the gauntlet of these obstacles. The Judge also recognized that the protections laid out in the biological opinion were generally supported. These findings echo those that Judge Wanger made back in 2008 when he rejected the previous Bush Administration biological opinion on the effects of the water projects, finding that they clearly jeopardize salmon and other fish. Back then, the Judge sent the biological opinion back to the agencies and told them to rewrite it, and strengthen its protections to prevent jeopardy.
The agencies did as the Judge ordered, and came back with a new 844-page biological opinion in 2009. In a thorough and comprehensive analysis, the 2009 biological opinion recognized that the status quo operations of the water projects would wipe out our fisheries if we didn’t change the way the water projects were operated. It then recommended changes to the water projects that would still allow significant water diversions, but reduce the harmful impacts on fish. In fact, while the protections of the 2009 biological opinion were in place and protecting salmon and other fish this year, the water projects exported more water than ever before out of the Delta.
But Tuesday’s decision instructs the agencies to go back to the drawing board and study the issue yet again, making the perfect the enemy of the good. The next biological opinion is likely to look very similar to this one, because as Judge Wanger (and numerous other state and federal agencies and independent review panels) found, many of these protections are necessary. While the Judge remanded for greater justification for the specific flow requirements, nothing in the opinion suggests dramatic differences in how we manage the Delta.
It’s well past time for us to deal with these problems. Salmon fishermen just suffered through three years of the closure or near closure of California's salmon fishery – a step that had never been taken before. Some runs (like Winter run chinook) are in the worst shape in more than a decade. While we should -- and will -- continue to incorporate new scientific research and findings, California's salmon runs can't wait for perfect science, nor can the fishing and tribal communities that depend on their health.