Commentary: Good Science Wins in Latest Delta Smelt Ruling
Sep 01, 2011
Westlands Water District
he U.S. District Court, Eastern District of California, today granted a preliminary injunction severely restricting plans by the U.S. Fish and Wildlife Service to release billions of gallons of California's drinking water supplies into the ocean in an effort that the court concluded would provide little or no benefit to a threatened species of delta smelt.
"This is another important step forward for good science, ensuring that our efforts to protect the delta will be guided by the best available data and not by outmoded assumptions or fanciful speculation," said Thomas W. Birmingham, General Manager of the Westlands Water District.
Birmingham commended the California Department of Water Resources and the State Water Contractors association of public water agencies for bringing this action to protect the water supplies of 25 million Californians who depend on the State Water Project. Because of hydrologic conditions this year, Westlands and other water users served by the federal Central Valley Project were not directly threatened by the federal fish agency's plans.
According to the court: "By erroneously by-passing [the National Environmental Policy Act], Federal Defendants completely abdicated their responsibility to consider reasonable alternatives to the [proposed] Action that would not only protect the species, but would also minimize the adverse impact on humans and the human environment. The result is the issuance and implementation of a one-sided, single purpose [action] that inflicts drastic consequences on California water users, a situation NEPA prohibits."
The federal plan, which was set to begin September 1, would have cost an estimated 300,000 acre feet of water. That is enough water to serve all the drinking water needs of the City of San Francisco for nearly two years.
The proposed action had been criticized as lacking any clear scientific basis by the National Research Council, by the federal government's own review panel, and by every independent scientist who had studied the issue. In granting the injunction, the federal court concluded, "There is essentially no biological evidence to support it."
This ruling is the latest in a series of cases in which the federal fish agencies' plans for the delta have been found to be scientifically deficient. As a result, the district court has already ordered the agencies to rewrite the biological opinions which guide their actions in the delta in order to correct past mistakes. .
"Federal officials need to take these rulings seriously," said Birmingham. "We cannot keep retrying the same issues. The courts are not the right venue to guide what should be a competent, well-balanced and cooperative regulatory process."
In its conclusion, however, the district court pointed out, "The agencies still 'don't get it.' They continue to believe their 'right to be mistaken' excuses precise and competent scientific analysis for actions they know will wreak havoc on California's water supply."
"We are hopeful the new biological opinion will create a great opportunity to move forward to address California's water needs and protect the delta on a sound, scientifically justified basis," said Birmingham. "It all depends on how much can in fact be learned from past mistakes."