CalCoast News - Water Quality

Editorial: A judge's landmark ruling roils Delta waters

Could ruling to protect smelt drive foes to the table to agree on restoring the Delta?

The Sacramento Bee
September 5, 2007

For years, anyone watching the Sacramento-San Joaquin Delta has known that a smack-down was looming over endangered smelt. These tiny fish, a bellwether for the ecosystem, have declined over the last decade while water exports from the Delta have been rising.

The Endangered Species Act gives judges wide latitude in curtailing government operations that prompt the extinction of a species. And while the smelt and other Delta fish appear to face a variety of threats -- including invasive species, water pollution and loss of habitat -- it's hard for a judge to overlook the impact posed by the massive state and federal pumps that move water through the Delta.

That day of judgment has now arrived. On Friday, U.S. District Judge Oliver Wanger issued a landmark ruling that could significantly reduce the 1.9 trillion gallons of water pumped annually through the Delta, largely to Southern California and the San Joaquin Valley. Although Wanger didn't go as far as environmental groups had hoped in restoring flows to the estuary, he issued an order that could fundamentally alter the day-to-day transport of water in California and the ways it is contracted to irrigators and other water users.

It's hard to overstate the impact of this ruling. For the first time, the most crucial valve in California's plumbing apparatus has fallen under control of the federal courts. Moreover, this takeover isn't the work of some activist judge. Wanger in the past has issued decisions favorable to irrigators.

This time those irrigators and government lawyers failed to convince Wanger that the smelt weren't being sucked toward a perilous fate. "The evidence is uncontradicted that these project operations move the fish," the judge said from the bench Friday.

The question now is how the state and federal governments will respond to Wanger's ruling, which limits pumping from the Delta from December to June. An initial review by state officials suggests these restrictions could reduce overall water deliveries south of the Delta by as much as 35 percent.

But Wanger also called for increased monitoring of young and old smelt, as a way to inform decisions about pumping. That means that the ruling's full impact might not be known until winter, when water managers put the order into effect.

Whether or not the outcome is "devastating" to the state's economy, as Gov. Arnold Schwarzenegger warned Friday, it should send a jolt of electricity into discussions about how to fix the Delta and use water more efficiently. The current agenda needs to focus not just on possible fixes that will take years, such as a peripheral canal, but on ones that would have more immediate benefits for the Delta.

As an advisory panel recently recommended, the state can and should move immediately to restore marshlands and reduce invasive species that are threatening the Delta's native fish. There also may be interim ways to move water through the Delta that minimize the fish-sucking impacts of the pumps.

Meanwhile, everyone who uses water south of the Delta should brace for some uncertain years. The state's water future is now in the hands of the courts and the weather. The forecast is cloudy, with a high likelihood of lawyers.