From the San Luis & Delta Mendota Water Authority:
The following is a statement by Dan Nelson, Executive Director of the San Luis & Delta-Mendota Water Authority on the 9th Circuit Court of Appeals Decision to overturn 2011 Wanger Ruling:
“A split decision issued today by the U.S. Court of Appeals for the Ninth Circuit has further jeopardized the delivery of water to residents of small, often disadvantaged rural communities in the San Joaquin Valley as well as 25 million Californians statewide and 3 million acres of the nation’s most precious farmland.
“In a 2-1 vote, the Ninth Circuit overturned a 2011 ruling by U.S. District Court Judge Oliver Wanger that found the science used to establish biological opinions governing the flow of water through the Sacramento-San Joaquin Delta was ‘arbitrary, capricious and unlawful.’ Though the majority of the Ninth Circuit panel concluded the U.S. Fish and Wildlife Service’s biological opinion is a ‘jumble of disjointed facts and analyses’, they found Judge Wanger’s ruling was based upon scientific evidence he should not have considered.
“While limiting the amount of information one should consider when making vital decisions may be a constraint of the law, in the real world we believe that all of the relevant science should have been weighed when writing the biological opinions. Fortunately, the science has come a long way since 2008 when the biological opinions were written and the United States must now reconsider its earlier opinions in light of new, advancing information. A collaborative effort underway now to develop a common understanding of the science among regulators, public water agencies and environmentalists is the best path toward developing durable and effective environmental regulations.
“These biological opinions have harmed south of Delta water users by reducing the amount of water delivered to people, farms and businesses. And for this sacrifice, the fish agencies have yet to demonstrate that taking this water away has resulted in any benefits to the fish. People should demand results.”
From the State Water Contractors:
“The United States Court of Appeals for the Ninth Circuit today, in a split decision, reversed a 2011 ruling that overturned unnecessary regulations and protected California water users. In 2011, the United States District Court for the Eastern District of California ruled in favor of public water agencies and in support of sound science, overturning what the court deemed to be arbitrary and harmful federal regulations on State Water Project operations. The set of regulations, known as a biological opinion, was put in place in an effort to revive Delta smelt populations, but to date has not done so. The restrictions have however triggered major water supply cuts over the years. The decision today by the Ninth Circuit will bring back these tight restrictions on water supplies and further exacerbate California’s ongoing water supply crisis.
One aspect of the District Court decision was upheld, one which requires the United States Bureau of Reclamation to comply with the National Environmental Policy Act and complete an Environmental Impact Statement, including analysis of impacts on people and the economy before agreeing to implement the biological opinion. This is of particular importance to all areas of California that rely upon water from the State Water Project and have been hit hard by significant cutbacks in water supplies.
As even the majority opinion issued by the Ninth Circuit recognizes, the Delta smelt biological opinion is a “jumble of disjointed facts and analyses,” and “a ponderous, chaotic document, overwhelming in size, and without the kinds of signposts and roadmaps that even trained, intelligent readers need in order to follow the agency’s reasoning.” The State Water Contractors agree with this assessment and believe the hundreds of thousands of acres of farms and 26 million people who receive water from the State Water Project deserve better. SWC also believes this underscores the need to work collaboratively using the best available science to address species and ecosystems as a whole, rather than to regulate our critically important infrastructure on a species-by-species basis. This is the goal of the Bay Delta Conservation Plan.
“Today’s decision will make it more difficult for water agencies to recover from the present drought by preventing us from capturing and storing excess water when it is available in wet years. Without the flexibility to capture and store water during those years, we are left with less water and fewer options when we face unprecedented drought conditions like those we’re experiencing today. The ruling today, and the regulations it brings back, underscore the need for a comprehensive solution in the Delta. Addressing each species on a case-by-case basis like this has no benefit to the fish and only results in the development of arbitrary regulations and less water for families, businesses and farms,” said Terry Erlewine, general manager of the State Water Contractors.
Notably, in a dissenting opinion, Judge Morris Arnold concurred with the District Court’s previous conclusions that the biological opinion was arbitrary and capricious and failed to rely upon the best available science. In so finding, Judge Arnold would have upheld the admission of limited expert testimony that was excluded by the majority opinion.
Source: Split Appeals Court Decision a Step Backwards for California Water Users
From Westlands Water District:
“Today, the United States Court of Appeals for the Ninth Circuit issued a decision in the appeal taken from the District Court’s judgment that the December 2008 biological opinion on effects of the coordinated operations of the Central Valley Project and the State Water Project on the Delta smelt was arbitrary, capricious, and unlawful. In its opinion, on a two – one vote, the appeals court reversed the District Court’s judgment.
Westlands Water District is extremely disappointed in this decision. Thomas Birmingham, the District’s general manager stated, “The basic premise of the court of appeal’s decision is that a court must defer to the judgment of an agency charged with administering a statute. But in this case, there was substantial evidence in the record and introduced in court, that the Fish & Wildlife Service’s judgment ignored the best scientific and commercial data available. We continue to believe that Judge Oliver Wanger got it right in his 2010 decision. And we believe that Judge Morris Arnold got it right in his decision dissenting from the appeals court’s majority opinion on the merits of the case.”
The impact of the 2008 Delta smelt biological opinion on California water supply is being felt this year. Birmingham stated, “This year California is experiencing a drought of near-record proportion and that drought is affecting our water supply. But the zero allocation to public water agencies that receive water from the Central Valley Project and the State Water Project is a direct result of limitations imposed on operations of the projects under the Delta smelt biological opinion. In the 2012-13 water year, that biological opinion reduced the projects’ water supplies by more than 800,000 acre-feet. That is enough water to supply more than 1.8 million households for a year or to irrigate 320,000 acres of land. Had we not lost that 800,000 acre-feet of water last year, this year our water supply would be greater than zero. Moreover, it is particularly frustrating that water dedicated to protecting the Delta smelt has not provided any protection to the species. The population of the species continues to decline.”
Birmingham also said, “One thing stated by the court of appeals with which the District strongly agrees is that the resolution of fundamental policy questions about the allocation of water resources in California lies with Congress. It is for precisely that reason that the District supports efforts by members of the California congressional delegation in both houses of Congress to enact legislation that would provide direction on how the Endangered Species Act will apply to operations of the Central Valley Project and the State Water Project.”
Westlands is evaluating options for potential further judicial review, including whether it should seek en banc review of the court of appeals decision.”
Source:Statement of Westlands Water District on Ninth Circuit Decision
