Clarity Blog

Clarity Blog

Judicial Whippings and Delta Pumps

Judge Oliver Wanger today dropped a bomb on the U.S. Fish & Wildlife Service and its supporters in the environmental movement by ruling that the Service’s efforts to protect the delta smelt by cutting off water supplies to folks and farmers from San Jose to San Diego lacked scientific justification.  In a 225-page decision issued late this afternoon, Wanger threw out the biological opinion (“BiOp”) written by the Service, and used by the Service to severely limit pumping of Sacramento-San Joaquin delta water to thirsty users to the south.

“[T]he public cannot afford sloppy science and uni-directional prescriptions that ignore California’s water needs,” Wanger wrote, as he endorsed some of the Service’s science as just fine, but called other elements “arbitrary and capricious,” that it “represents a failure to use the best available science,” and that the Service failed to address or explain “material bias” in the data.  He also said these mistakes “fatally taint” other scientific findings used by the Service to cut water deliveries.

As to the big question – Are “project operations,” as in pumping water out of the delta, contributors to the falling delta smelt populations? – Wanger concluded:

In general, the BiOp’s conclusions about the causal connections between Project Operations and “other stressors” are ambiguous. However, the BiOp’s assertion that Project Operations contribute to and/or exacerbate the impacts on delta smelt … are unsupported by record evidence and/or explanation.

In finding that the Service placed blame on the pumps and shut them down without appropriately considering the impacts of wastewater, ammonium, non-native species, farming operations and myriad other stressors on the delta’s fish populations, Wanger chastised the Service for shutting down the pumps without making a viable case for shutting down the pumps.

While Wanger denied more plaintiff motions than he granted, the net effect was the mortal axing of the BiOp that has been used by the Service as the basis for billions of dollars of financial devastation foisted on the Central Valley agricultural industry and its employees, and billions of dollars paid by urban residents through higher water rates.

As an Orange County public affairs specialist who has worked on endangered species issues for decades, the ruling comes as no surprise to me.  I have seen bias and sloppiness in what passes for “science” by federal regulators for decades.  Time after time, federal resource agencies have had their wrists slapped, their biological opinions and critical habitat designations tossed out, and their reputations as fair arbiters destroyed by blistering judicial attacks.  Yet at the next opportunity, they unfailingly once again take the same route and not surprisingly end up in the same place.

Why do we continue to tolerate this profound moral failure by public servants?  Why do the environmentalist activists who support the Feds and their fatally flawed science continue to have credence? How many more billions of dollars of damage will we allow them to cause before we finally put a stop to this sham?

The answer to those questions, I’m afraid, are nowhere to be found. Not yet.

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