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California farmers notch victory in water ruling

by Rand Green | May 19, 2010
A federal judge ruled May 18 that government agencies must take into account the human costs -- not just the effect on wildlife -- when restricting water allocations to farmers and other water users. The judge also stated that decisions to cut farm water deliveries in Central California, with the expressed intent of protecting endangered fish species, were based on flawed science.

The ruling in Fresno, CA, by U.S. District Judge Oliver Wanger, which is expected to loosen restriction on pumping water from the Sacramento River Delta into canal systems delivering water to agricultural and urban water users south of the delta, is seen as a major victory for farmers who have been forced to idle hundreds of thousands of acres of once-productive farmland in California's San Joaquin Valley over the last two years due to cuts in water deliveries.

The ruling came just one day after another major piece of good news for California's beleaguered farmers was released by the University of Maryland. A study by Patricia Gilbert, a researcher at the university's Center for Environmental Science, confirmed - as farm groups in Central California have been contending - that the dumping of inadequately treated sewage into the delta by the city of Sacramento and other delta communities, and not the pumping of water out of the delta, has been the major cause of declines in populations of the endangered California Delta Smelt.

The University of Maryland study followed on the heels of a study completed in February by Inge Werner, a toxicologist at the University of California- Davis, which also indicated that Delta Smelts have been harmed more by wastewater than by pumping.

Judge Wanger stated in his 134-page ruling that federal agencies are obligated to assess the effects of their actions on "the quality of the human environment."

In the specific case being considered, Westlands Water District and other plaintiffs asked for a temporary restraining order against implementation of a 2009 National Marine Fisheries Service biological opinion favoring another category of endangered fish species in the delta -- salmon -- over humans in deciding distribution of water flowing into the delta.

In his ruling, Judge Wanger stated that "the evidence overwhelmingly establishes significant detrimental effects visited on the quality of the human environment" by implementation of the operating restrictions required by the biological opinion.

"The exact restrictions imposed, which are inflicting material harm to humans and the human environment, are not supported by the record," he stated. "Judicial deference is not owed to such arbitrary, capricious and scientifically unreasonable agency actions."

The judge granted the requested injunction and scheduled a hearing for May 19 to address the specifics of the injunctive relief and specify how much additional pumping from the delta must be permitted.

"This is a powerful, excellent ruling," said Brandon M. Middleton, an attorney with the Pacific Legal Foundation, which represents some of the farmers that have been adversely affected by federal water cutbacks. "The judge is telling the feds that they can't ignore the harsh human and environmental impacts of cutting off water to farms, workers, businesses and communities. The judge is also saying the feds can't get away with using slippery science to justify environmental restrictions that rob communities of their lifeblood: water."

Judge Wanger's ruling is "very positive," Joel Nelsen, president of California Citrus Mutual in Exeter, CA, told The Produce News May 18. "Based on the science that has now come out relative to the other stressors" on the delta, the ruling now requires "the federal government to take a much broader and comprehensive look at how to solve the problem without adversely affecting" farmers and other water users in the San Joaquin valley.

What NMFS did in issuing its biological opinion "was abuse the scientific process" by predetermining the desired outcome "and then trying to develop a solution path to achieve it without taking into consideration all these other dynamics," he said. "It was a corrupted scientific process."