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California Water: The Judge’s Questions

The judge’s questions: Last Friday, federal Judge Oliver W. Wanger issued questions to a panel of experts he appointed to consider the U.S. Fish and Wildlife Service’s biological opinion on endangered smelt in the Delta. To really make sense of the list, which focuses on a narrow range of issues concerning the service’s scientific conclusions about smelt migrations and the effect of Delta pumping on the fish, you’ll need to go and wade through the evidence presented in the trial so far (when you get done with all the motions, declarations, statements, and supporting research, you might be looking at tens of thousands of pages). But the list is interesting even without that file trek, because it sheds some light on what subjects Wanger sees as central to the case. (Here’s the order, in PDF form: Judge Wanger’s Questions).

Who are the “706 Experts” he refers to therein? They’re a group of scientists Wanger chose last November after nominations from the water contractor plaintiffs who are challenging the smelt biological opinion and from the federal agencies who are defending it. “706” is a reference to Federal Rule of Evidence 706, which provides for court appointment of expert witnesses. The panel is: Paul Fujitani, an employee of the Bureau of Reclamation, as an expert on Central Valley Project operations (the bureau is a defendant in the case); Thomas P. Quinn, a professor of aquatic and fishery sciences at the University of Washington; Andre Punt, another UW professor, an expert in fish population dynamics and statistics; and, “if necessary,” John Lehigh, an employee of the state Department of Water Resources, as an expert on State Water Project operations.

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California Water: Face of the Drought

It’s California Water Saturday in these parts. Let’s see if I can keep it simple:

Continued wet weather means most of the state’s reservoirs are filling up. But if your definition of drought means all reservoirs brim-full, no, we’re not out of the woods yet. (My KQED Radio News colleague Amy Standen just finished a story that will air Monday: “Is the Drought Over?” (I have a starring role in her accompanying blog post.) Another take on our drought status comes from the U.S. Drought Monitor. Over the last couple of weeks, this report has shown a dramatic contraction of the area of the state affected by drought.

The face of the drought: At the end of January, the state Department of Water Resources issued its latest drought update (18-page PDF). The most interesting aspect of the document is the way it adopts the Westlands Water District as a proxy for the drought’s impact on agriculture throughout the state. It’s not a subtle touch, either: the front and back covers of the drought report contain dramatic photographs, courtesy of Westlands, of dead orchards. We’re to understand from the context that drought has killed these productive groves. Inside the report, there’s a writeup on Westlands, complete with a table on page 12 showing the reduction in planted acreage since 2006–a little misleading to use as an index year since it was a decidedly wet year when no one had to worry about water supplies. The table does show that virtually all field, seed, and truck crops have experienced dramatic reductions since ’06 (exception: wheat, for which acreage grew by 53.4 percent, and garbanzo beans, which had a 42.5 percent increase in acreage). At the same time, though, the Westlands table shows that the acreage in tree and vine crops–remember the dead orchards?–has increased by 20 percent since the drought began. Most of that jump has been in almonds, which grew from 55,000 acres in 2006 to 70,000 acres in 2008 before falling back to 67,000 acres last year.

Now, there is no question at all that the district, which includes about 1,000 square miles along the western fringe of the mid-San Joaquin Valley, has been hit hard by the shortage of water. It’s dry country and because the district was formed relatively recently (in the 1950s), it’s near the bottom of the totem pole for getting a share of the water pumped into the valley from up north. Yes, land has been fallowed and fieldworkers have lost jobs–pretty much the same way that’s happened during every dry cycle. The question is whether Westlands really represents the face of the drought across the state. Reading about the plight of the district, one would hardly guess that the state’s harvest of processing tomatoes–by acreage the biggest vegetable crop in California–hit an all-time high in 2009 (data by way of the U.S.D.A.’s National Agricultural Statistics Service, in its latest “California Vegetable Review“).

Of course, the processing-tomato harvest doesn’t tell you much, either–by itself. And neither does Westlands, if your interest is understanding the wide impact of California’s water challenges. Of course, if your interest is putting the grimmest possible face on the drought to scare up support for a new round of dam- and canal-building–which is exactly what many environmentalists say the Department of Water Resources is doing–then Westlands will do just fine as a poster child.

Delta pumps–turn up the volume: The biggest water news of the week came out of the Fresno courtroom of U.S. District Court Judge Oliver W. Wanger (W. is for Winston, not Wendell; and those who know say his last name rhymes with “ranger”) in a case featuring Central Valley chinook salmon, federal fishery and water managers, and (again) the Westlands Water District. On Friday, Wanger issued a temporary restraining order that blocks a federal plan to protect endangered chinook salmon that migrate back and forth through the Sacramento-San Joaquin Delta. The plan limits, but does not halt, exports from the Delta to avoid sucking fish into the pumps that send water south. Westlands and other water districts argued that pumping limits are letting hundreds of thousands of acre feet of water escape into the ocean instead of being shipped to San Luis Reservoir, the main storehouse for San Joaquin Valley irrigation supplies. Letting the water flow out to sea would amount to irreparable harm to communities depending on it for growing crops and providing jobs.

Wanger agreed, issuing a 23-page decision that sets aside the federal protection plan for two weeks, pending a permanent ruling. He found a) that recent pumping in the Delta hasn’t killed enough endangered winter-run chinook to threaten the species’ survival; b) that our wet weather has caused flows that ought to be captured now; and c) that the federal defendants have brought this ruling on themselves by failing to assess the impact of their salmon plan on people. A portion of the ruling that’s gone generally unnoticed, as far as I can tell, acknowledges that it’s unknown what effect increased pumping will have on migrating juvenile winter-run salmon. That being the case, “the temporary restraining order … shall initially be for a period of fourteen days, subject to renewal by plaintiffs upon an affirmative showing that neither the species’ nor their critical habitat will be jeopardized by continued injunction” of the pumping limits (emphasis mine). In other words, Westlands and company will need to prove that the increased flow of water they’re getting hasn’t caused a big jump in the number of salmon killed off at the pumps. (You can follow the dead salmon count at home, if you’re inclined: the federal Central Valley Project, which runs one set of the pumps in question, publishes a daily report, Chinook Salmon Loss Data.)

The key piece of Wanger’s decision, though, is not really about the amount of water being pumped out of the Delta. It’s about the winning legal strategy (in this court, anyway) used by Westlands and its allies in arguing that the agencies trying to enforce the Endangered Species Act must weigh their actions’ impact on human communities. The judge seems to be saying, “Yes, you can protect plants and animals that we humans have driven to the edge of extinction–but only if protecting them doesn’t harm us humans.” Wanger made a similar ruling last year in a case involving endangered species protection for the delta smelt. Legal Planet, an environmental law blog from UC-Berkeley and UCLA, called his findings “curious” and said, “Judge Wanger is asking the agency to balance on an absolute knife edge, ensuring that it doesn’t deny farmers a single drop of water that the fish don’t critically require.”

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