Nearly four years after environmentalists launched a campaign to kill farming in California's huge Central Valley, ostensibly to save a two-inch fish, the Delta Smelt, a U.S. District Court judge has ruled that the federal government's restrictions on farm water were "unworthy of the public trust."
It began in March 2007 when a local environmental group persuaded a county judge to tell the State of California to either shut down the huge pumps that move northern water into the Central Valley or obtain permits to legally kill the "endangered" Delta Smelt (the plaintiffs claimed such large numbers of them were being sucked into the pumps that the species was threatened with extinction).
A survey by the Delta Smelt Working Group, a committee of scientists from three federal and two state agencies, blamed pesticide use for many of the smelt deaths, but reasoned that a reduction in southbound pumping would leave more water to flow toward San Francisco Bay, thus promoting restoration of the smelt.
Claiming that water pumped out of the Delta to the Central Valley was the cause of the smelt decline, the Natural Resources Defense Council and allied environmentalist groups in 2008 sued the federal government. The Bush Administration's Department of the Interior then agreed to divert more than 150 billion gallons of water a year from the Central Valley to the San Joaquin River Delta in a vain effort to stop the decline of the smelt.
The federal government then asked the National Academy of Sciences to conduct a formal study. In March 2010 its report concluded that fish counting data were not fully reliable. The cautious scientists wrote, "At this time, the best that can be done is to design a strategy of pumping limitations that used the best available monitoring data and methods of statistical analysis to design an exploratory approach that would include enhanced field measurements to manage the pumping limitations adaptively while minimizing impacts on water users." (My italics.)
The harsh pumping restrictions continued. By this summer it had been three years since the U.S. Fish and Wildlife Service had imposed a restriction on the system to divert an extra 81 billions gallons of water a year from the Central Valley system to flow out to the ocean.
The environmentalists that started it all seem to have achieved their objective: to drive down the production of the Central Valley so that it delivers less food to the nation. In the eyes of these warriors, the poverty of the valley's citizens is simply collateral damage.
Federal Judge Oliver Wanger changed this with the stroke of his pen. Of the three-year "diversion" program which had deprived the Central Valley of one-third of its water, he wrote, "cutting water exports to California cities and farms is 'arbitrary' and 'capricious.'"
During this water siege, some 85,000 very productive acres of almond and fruit trees and vegetables went out of production, millions of dollars of produce were not realized, dozens of farms were sold or foreclosed and unemployment rates in the area reached as high as 40 percent.
In the 36 years since the Endangered Species Act became law, not a single fish has been removed from its list. About this, California Rep. Devin Nunes wrote in a Wall Street Journal article, "Despite massive amounts of water diverted to help them, the smelt, sturgeon and salmon populations have continued to decline."
Judge Wanger's decision represented a victory for the plaintiffs, a group of Central Valley farmers represented by the Pacific Legal Foundation. Nevertheless, new battles await between the needs of large numbers of people and the status of various species. The U.S. Fish and Wildlife has been a dervish of activity lately, recently making Endangered Species Act decisions on more than 500 of them. It will likely find itself locked in a battle with long drought-stricken areas of the Southeast as it makes decisions on a list of fish, salamanders and turtles up for "threatened" or "endangered" designation. At the center of the battle will be water.
Speaking of water, while it begins to flow again into the Central Valley, the Fish & Wildlife Service is likely to appeal Judge Wanger's decision. That would be heard by the Ninth Distrcit Court of Appeals, the nation's most liberal, so the score isn't quite final -- yet.