Water Education Foundation

Fish fight may doom dam: Judge Wanger’s decision on salmon lawsuit to decide fate of Lake Red Bluff

Posted by: Aqua Blog Maven on August 11, 2008 at 7:43 am

From Redding’s Record-Searchlight:

Caught in a fight over fish, the diversion dam that creates Lake Red Bluff and enables the irrigation of about 150,000 acres of Northern California cropland is itself an endangered species.

Local recreation enthusiasts, businesspeople and agricultural interests have watched with dread this summer as an environmental lawsuit against the Central Valley Project’s water diversion system has proceeded in a Fresno courtroom.

Central in the suit is the fate of the Red Bluff Diversion Dam, which is put in place from mid-May through mid-September to supply water for a 125-mile irrigation canal that runs to Glenn, Colusa and Yolo counties. The city of Red Bluff estimates the resulting high river levels in the heart of town generate $4 million a year in economic activity.

U.S. District Judge Oliver Wanger has ruled the dam and other diversions imperil the state’s beleaguered salmon population. Wanger stopped short of ordering the gates removed immediately, but the Tehama-Colusa Canal Authority will have to remove the gates Sept. 2 - about two weeks early - if it’s determined that at least 5 percent of winter-run salmon have already reached the dam.

“They dodged a bullet this time,” Red Bluff City Manager Martin Nichols said of the dam and the lake, home of the popular Nitro Nationals Drag Boat Festival each Memorial Day weekend. “But we’re a long way from being out of the woods on this.”

Get the rest of the story from Redding’s Record-Searchlight by clicking here.

Picture of Red Bluff Diversion Dam by the Bureau of Reclamation.

August 11, 2008 · Filed Under Judge Wanger salmon ruling

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Is the Wanger court liberal or conservative?

Posted by: Aqua Blog Maven on August 3, 2008 at 11:49 am

From the Belleville News-Democrat, a newspaper somewhere in Southwestern Illinois & St. Louis, an article on the Wanger court in Fresno. Is the court too liberal?

Fresno, Calif.’s federal court has delighted liberals lately with decisions slapping down the auto industry, siding with the homeless and twice favoring fish over farmers. The high-profile decisions and their far-reaching effects drew the ire of politicians, the wrath of the agriculture industry and general scorn from local conservatives.

One letter to the editor published June 12 in The Bee criticized the homeless settlement and urged U.S. District Judge Oliver W. Wanger to “go by the law, and use some common sense.” Republican California Assembly Member Mike Villines of Clovis called Wanger’s delta smelt ruling an “irresponsible decision.”

But legal experts and records of court decisions suggest that Fresno’s U.S. District Court is anything but liberal.

In criminal matters, a study has shown that the court has been very strict on sentencing, and many attorneys feel the court leans to the right on civil matters as well. But what about the other issues, like the Delta smelt ruling?

As evidence that Wanger, in particular, leans to the right politically and favors farmers over fish, some attorneys point to a case involving Francis Orff and other unhappy Westlands farmers who sought upward of $32 million from the federal government for undelivered irrigation water.

In a February 2005 oral argument before the U.S. Supreme Court, Justice Antonin Scalia referred to “this friendly district judge” in a question to Orff’s attorney. The judge Scalia spoke of, the attorneys said, was Wanger.

Though attorneys for environmental groups declined to comment, Wanger’s reputation was one reason they filed two cases on behalf of endangered fish - one involving the delta smelt, the other involving salmon and steelhead species - in California’s Northern District, which is based in San Francisco.

Both times, the state and federal governments argued that the cases should be moved to Wanger’s court in Fresno.

The San Francisco court granted both requests, in part because Wanger has heard more than three dozen water cases and is the acknowledged judicial expert in California, and also because he was already hearing similar cases.

Ironically, even though the environmentalists still tried to get the trial moved to another court, Wanger has ruled in their favor twice:

Capozzi said the fish rulings show that Wanger followed the law rather than political ideology. In one ruling, Wanger wrote that Congress - and not the courts - gave endangered species “the highest of priorities” in the Endangered Species Act. “It is up to the political branches of government, not the court,” to solve any problems created for farmers and other water users by the act, he wrote.

Read the full text of this article from the Belleville News-Democrat by clicking here.

August 3, 2008 · Filed Under Judge Wanger delta smelt ruling, Judge Wanger salmon ruling

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Judge seeks salmon impact report; State, federal agencies must file update by Aug. 29

Posted by: Aqua Blog Maven on August 2, 2008 at 7:11 am

From the Capital Press:

A federal court judge has ruled that Central Valley Project operations are detrimental to certain fish species, but so far he’s made no decisions about what modifications the U.S. Bureau of Reclamation must make to reduce the impact on fish. Judge Oliver Wanger hasn’t instituted any other emergency remedies on behalf of three fish species - winter run chinook, spring run chinook and steelhead.

In a hearing held Wednesday, July 23, Wanger ordered the federal defendant and the California Department of Water Resources to file a status report by Aug. 29 that contains an update on current project operations as well as those proposed through next March, the status of any jeopardy to the fish and an analysis of proposed remedies to protect species and habitat.

“We’re evaluating his recommendations right now and putting together our strategy for coming back to the table for a conference with him,” Bureau of Reclamation spokesman Pete Lucero said. “We’ll be prepared to discuss with the court what we’ve come up with in the way of meeting his requirements from his bench.”

“It’s not entirely clear what’s going to happen next,” said Natural Resources Defense Council spokesman Craig Noble. However, Noble said, “The status quo is unacceptable.” What will follow has yet to be decided, he said.

Read more from the Capital Press by clicking here.

August 2, 2008 · Filed Under Judge Wanger salmon ruling, Salmon

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Judge orders interim plan for salmon drawn up

Posted by: Aqua Blog Maven on July 24, 2008 at 7:23 am

From the San Francisco Chronicle:

A federal judge in Fresno ordered state and federal water regulators Wednesday to come up with an interim plan by the end of August for protecting migrating salmon in the Sacramento-San Joaquin River Delta.

U.S. District Judge Oliver Wanger set a deadline of Aug. 29 for the agencies to spell out how they intend to protect winter- and spring-run chinook and steelhead trout until March, when a more comprehensive plan, known as a biological opinion, is scheduled to be released.

Wanger scheduled a court hearing Sept. 4 to discuss the interim plan.

The order followed Wanger’s ruling Friday that blamed pumping and diversion policies by the U.S. Bureau of Reclamation and the California Department of Water Resources for contributing to the demise of the three salmonid species.

Read the rest of this article from the San Francisco Chronicle by clicking here.

The Fresno Bee adds this:

Attorneys for the environmental groups who sued to protect the three species will review the reports and, if they are dissatisfied, could press Wanger to take action to protect the fish.

“It’s their job to figure out how to fix that,” Natural Resources Defense Council attorney Kate Poole said of the coming reports. “It makes sense the first go-around to propose what is sufficient.”

Among things they could request are restricting water exports out of the Sacramento-San Joaquin Delta when juveniles of the three species are migrating, and lowering water temperatures in the American River below Folsom Dam to assist spawning. Cooler water from Folsom Lake could be released to change water temperature.

During the hearing Wednesday, the parties participated by telephone. Wanger ordered both sides back in his Fresno courtroom Sept. 4. That’s when the environmental groups are expected to say whether they are satisfied with the state and federal government reports that the species are being protected, or whether they believe further action is necessary.

“We’ll have to see what it looks like,” Poole said. “There are a bunch of different scenarios that could play out. It all depends on the adequacy of the plan.”

Read the full text of the Fresno Bee article by clicking here.

Coverage from the Associated Press is here.

July 24, 2008 · Filed Under Judge Wanger salmon ruling

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Court finds harm to salmon, sets remedies hearings

Posted by: Aqua Blog Maven on July 22, 2008 at 9:41 pm

From the California Farm Bureau Federation:

A federal district court decision in Fresno last week means more legal wrangling over water for endangered salmon and steelhead runs on the Sacramento and American rivers. And it means continued uncertainty for California farmers and ranchers who depend on water delivered through state and federal water projects.

The court’s 118-page ruling is the result of a lawsuit filed by the Natural Resources Defense Council and several other environmental groups, including the Pacific Coast Federation of Fishermen’s Associations. These groups have accused the government of not providing adequate protections for endangered salmon and steelhead.

Federal District Court Judge Oliver Wanger said in his decision that “based on two drought years, with critically dry hydrologic conditions in 2008, and the presently unpredictable risk of a third dry year, the species are unquestionably in jeopardy. The ESA does not permit jeopardy to a listed species to be considerably increased during the BiOp (biological opinion) reconsultation.”

“We are disappointed in the court’s decision on behalf of our Farm Bureau members,” said Chris Scheuring, California Farm Bureau Federation managing counsel. “We were of the opinion the government’s operation of the water projects was calculated for the reasonable protection of the listed species. Judge Wanger took a different view and we respect that.

“In combination with last year’s delta smelt rulings, the only reasonable conclusion to draw is that if we’re going to have a species protection statute as demanding and inflexible as the Endangered Species Act, we’re also going to have to get more water storage into the state’s water delivery system. Without that we face the prospect of consistent water shortfalls, which will be disastrous not only for agriculture, but for the 37 million people who live in California and depend on reliable water supplies,” Scheuring added.

For more on this story, Read more

July 22, 2008 · Filed Under Agriculture, Judge Wanger salmon ruling

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Judge Wanger ruling on the salmon….

Posted by: Aqua Blog Maven on July 21, 2008 at 8:54 am

For those of you who took the weekend off, Judge Wanger ruled on the salmon Friday afternoon. Wrap up of coverage from around the state can be found by clicking here.

July 21, 2008 · Filed Under Judge Wanger salmon ruling

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Judge rules water projects imperil Central Valley salmon and steelhead

Posted by: Aqua Blog Maven on July 21, 2008 at 6:18 am

From Dan Bacher at IndyBay.org:

Federal Judge Oliver Wanger ruled Friday that operation of the state and federal water projects in California’s Central Valley must be modified to protect threatened and endangered Chinook salmon and steelhead populations from the threat of extinction, according to this news release from Earthjustice. The court ruling took place at a time when Governor Arnold Schwarzenegger and Senator Dianne Feinstein are pushing a $9.3 billion water bond that would build a peripheral canal and more dams at the taxpayer’s expense. If Schwarzenegger and Feinstein are not stopped from ramming their proposal through, collapsing California Delta fish and Central Valley chinook salmon will be pushed over the edge of extinction, in violation of numerous federal court rulings including the latest one by Judge Wanger.

FOR IMMEDIATE RELEASE

Contacts: George Torgun, Earthjustice; Craig Noble, NRDC; Zeke Grader, PCFFA; Dr. Tina Swanson, The Bay Institute; John Merz, Sacramento River Preservation Trust

Judge Rules Water Projects Imperil Central Valley Salmon and Steelhead
Fishermen, tribes, and conservationists pleased that court recognizes need for changes to state and federal water project operations to better protect fish, jobs, and local communities

FRESNO (July 18, 2008) - A federal judge ruled today that operation of the state and federal water projects in California’s Central Valley must be modified to protect threatened and endangered Chinook salmon and steelhead populations from the threat of extinction. Judge Oliver W. Wanger ruled
today that “Project operations through March 2009 will appreciably increase jeopardy to the three species,” thereby violating the law. During the court proceedings, the agencies had agreed to some operational changes, such as earlier opening of Red Bluff Diversion Dam and increased water flows on
Clear Creek, to better protect salmon and steelhead. The court did not order any additional restrictions on the operations of the water projects in this ruling.

Read the rest of this story from IndyBay.org by clicking here.

July 21, 2008 · Filed Under Judge Wanger salmon ruling

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Coverage wrap-up: Judge delivers vindication but no relief for imperiled salmon, steelhead

Posted by: Aqua Blog Maven on July 19, 2008 at 4:53 pm

From the >Los Angeles Times:

A federal judge struck a largely symbolic blow for imperiled salmon and steelhead Friday, declaring that the state’s vast water-export system is putting the fish at risk but rejecting environmentalists’ key demands for change.

U.S. District Judge Oliver W. Wanger of Fresno said in a 118-page opinion that the Central Valley’s winter- and spring-run salmon as well as the remnants of its once-thriving steelhead population are being threatened by the dams and aqueducts that store and move water around California.

The water projects’ operations “appreciably increase jeopardy to the three species,” Wanger concluded, saying it is “undisputed” that water exports will in the short term continue to kill eggs, fry and juveniles while reducing the abundance and distribution of the fish and the chances of long-term recovery.

But the judge denied several remedies suggested by environmental attorneys with the Natural Resources Defense Council and Earthjustice, such as storing more water behind Shasta Dam to be released for migrating salmon and opening a pivotal diversion dam’s gates to allow the fish to reach spawning grounds.

Fishermen who have seen this year’s salmon season canceled because of a historic slump in returning fish gave the ruling a tepid review. “It’s a mixed bag,” said Zeke Grader of the Pacific Coast Federation of Fishermen’s Assns., one of the plaintiffs. “It verified what we’ve been saying all along — that the fish are in jeopardy. But he did nothing to fix it.”

From Mike Taugher at the Mercury News (CCT):

The order, issued late Friday by U.S. District Judge Oliver Wanger in Fresno, contained both good news and bad news for environmentalists and commercial salmon fishing advocates, representatives of those groups said. Although they did not win immediate measures to protect the fish, the judge’s conclusions mean regulators will be forced to impose more protective conditions when they issue a new permit in March, lawyers said.

“It’s a clear signal that business as usual in the Delta is not going to be acceptable,” said Kate Poole, a lawyer for the Natural Resources Defense Council.

At issue is how water is stored in Northern California and delivered through the Delta to parts of the Bay Area, San Joaquin Valley and Southern California. Those operations have taken a severe toll on several fish populations.

The order addressed winter-run salmon, spring-run salmon and steelhead. It did not address fall-run salmon, the backbone of the state’s commercial salmon fishery that collapsed last year and forced the state’s first-ever closure of the salmon season. Fall-run are not covered by endangered species laws.

“The system is badly broken,” Poole said. “The record high exports that we’ve been taking out of the Delta have been crashing fish and killing the fishing industry. These agencies are pretty much incapable of turning that around.”

From the San Francisco Chronicle:

The report comes amid a statewide fisheries crisis. The number of salmon in the ocean plummeted this year, prompting a ban of fishing all along the California and Oregon coasts. Some marine biologists claim the problem resulted from a lack of nutrients in the ocean caused by global warming, but most fisheries experts believe the biggest impact is from dams, diversions and development along the Sacramento River system, which is the primary spawning grounds.

However, curtailing water diversions means cutting back on the flow of drinking water for 25 million Californians and irrigation for 750,000 acres of cropland. California’s state and federal water project was established about 100 years ago and is an integral part of the state’s infrastructure. Changing it would become a political football up and down the state, affecting the economy as well as the environment.

Still, even those who have interests in water rights and support diversions admit the state’s water distribution system is in turmoil. “Everyone is realizing the delta is broken and there needs to be some kind of fix that will meet the needs of the citizens who receive water as well as for the environment,” said Sarah Woolf, spokeswoman for the Westlands Water District, an agricultural area representing farmers who produce 60 commodities, including most of the state’s lettuce, almonds, tomatoes, pistachios and grapes.

“We need some sort of conveyance around the delta,” Woolf said. “Everything is pointing to a peripheral canal as the solution.”

From the Fresno Bee:

Environmentalists say time is short because the three species in Wanger’s ruling are in steep decline. In April, West Coast fisheries managers voted to cancel all commercial salmon fishing off the California and Oregon coasts this year.

They are seeking more than a half-dozen solutions to help the three species, including restricting water exports out of the delta when juveniles of the three species are migrating. That is a decision that, if approved, could hurt millions of water users in the Bay Area and Southern California, as well as in the Westlands Water District on the Valley’s west side.

Woolf said that even if this winter brings record rains, contractors who depend on delta water will be “lucky to get above 50% of deliveries.”

Environmentalists are also proposing additional solutions for the Stanislaus, Cosumnes, American and Mokelumne rivers.

Wanger’s Friday ruling did deny requests by environmentalists to increase cold-water releases from Lake Shasta to make the Sacramento River’s temperature lower at a point farther downstream and to maintain 1.9 million acre-feet of water in Shasta. He wrote that “neither of these are possible given current hydrologic conditions.”

And Wanger also said the Red Bluff Diversion Dam — which sits on the Sacramento River and raises its water line to allow a gravity water flow into the Tehama-Colusa Canal — should be opened Sept. 2 if 5% or more of young winter-run Chinook salmon are present in the river. That is two weeks earlier than normal. Environmentalists had sought to immediately open the dam gates to allow upstream passage of salmon.

If September is a hot month, opening the gates two weeks early could have an adverse effect on Sacramento Valley growers who depend on water from the Tehama-Colusa Canal.

A wild card in the entire debate is the weather. Wanger has said that the Endangered Species Act contains an exception for human health and safety — in other words, the need for the public to have adequate water for survival.

From the San Francisco Chronicle:

The Natural Resources Defense Council urged Wanger to require the bureau to open the gates of the Red Bluff Diversion Dam earlier than normal. The dam is usually closed on Memorial Day to create a lake for boat racing and other festivities. Water from the lake is then diverted for farmers and other users through an irrigation channel.

Obegi said juvenile salmon heading downstream get caught behind the dam and are eaten by predatory fish.

“When the dam is in, the fish get concentrated,” he said. “They go down the fish ladders on the side and the predators know exactly where the fish are coming and wait there. It’s like serving them up on a dinner plate.”

Environmentalists also wanted Wanger to impose minimum stream flows on Clear Creek to store more water in Lake Shasta to make sure there is adequate flow year-round and to increase the amount of spawning habitat by releasing colder water farther downstream.

The judge apparently decided not to grant the council’s requests because the defendants already had agreed to some operational changes, including opening the Red Bluff Diversion Dam slightly earlier than originally planned and increasing flows on Clear Creek, near Red Bluff, to better protect salmon and steelhead.

From the AP & Riverside’s Press Enterprise:

U.S. District Judge Oliver Wanger denied the groups’ request to release more water from a federal reservoir to help young endangered Sacramento River winter-run Chinook salmon reach the ocean. That could have left hundreds of acres of almonds, walnuts and tomatoes without irrigation supplies next month, at the height of California’s drought.

“I’m on cloud nine here,” said Jeff Sutton, who manages a canal system that delivers water to farms from near Redding to just north of Sacramento. “We’re obviously ecstatic that the service area is going to continue to finish the irrigation season and be able to harvest the crops.”

Still, the battle is far from over.

Judge Wanger’s ruling:

“Project operations through March 2009 will appreciably increase jeopardy to the three species. … All three testifying experts … conclude that the three salmonid species are not viable and are all in jeopardy of extinction. Based on two drought years, with critically dry hydrologic conditions in 2008, and the presently unpredictable risk of a third dry year, the three species are unquestionably in jeopardy.”

July 19, 2008 · Filed Under Judge Wanger salmon ruling

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CSPA defends the striped bass’s right to exist

Posted by: Aqua Blog Maven on July 8, 2008 at 11:11 pm

From Dan Bacher at IndyBay.org:

This excellent article by Jerry Neuburger, webmaster for the California Sportfishing Protection Alliance, discusses attorney Mike Jackson’s plan to intervene in a suit by the corporate water contractors to strip protections for striped bass. The striped bass is one four species, including the delta smelt, longfin smelt, and threadfin shad, that has plunged to record low population levels as part of the Pelagic Organism Decline on the California Delta. Striped bass are the victims of gross state and federal mismanagement of Central Valley rivers and the Delta, as are collapsing Sacramento River chinook salmon populations.

“Striped bass have coexisted with salmon and smelt in the Delta estuary for more than a hundred years,” said Bill Jennings, Executive Director of CSPA. “The dramatic almost 30% increase in the amount of water exported in recent years is the one clear culprit that has led to population crashes of numerous species; including salmon, steelhead, striped bass, Delta smelt, longfin smelt, splittail and threadfin shad, among others!”

CSPA’s Mike Jackson ready to defend the beleaguered Delta Striped Bass in federal court on July 14

By Jerry Neuburger

July 7, 2008. With only a week to go before Judge Wanger’s federal district court convenes, CSPA attorney, Mike Jackson, is prepared to intervene in the case of the Coalition for a Sustainable Delta et al vs. The California Department of Fish and Game and the California Fish and Game Commission.

Jackson has over 20 years court experience in fisheries and environmental law, acting as CSPA’s attorney in numerous state and federal issues. Jackson, in defending DFG and the Commission, will be representing the California Sportfishing Protection Alliance, the California Striped Bass Association and the Northern California Council of the Federation of Fly Fishers.

Opposing him are a group of Kern County water agencies posing as environmentalists under the title of The Coalition for a Sustainable Delta. These agencies are consumers of vast amounts of water pumped south through both the state and federal conveyances. A healthy striped bass fishery is a major obstacle in their ever increasing need for delta water since that fishery and the recreational anglers fishing for them represent a sizable lobby more interested in a healthy delta than desert farming of marginal lands using taxpayer heavily subsidized water for cash crops by corporate agri-business.

The Coalition alleges that the Delta Striped Bass is a voracious predator and is one of the prime causes of the collapse of the endangered Delta Smelt and Sacramento Valley Chinook Salmon. They make this claim even though there is no credible evidence that such predation takes place and in fact, the striped bass fishery, the Delta Smelt fishery and the Chinook Salmon fishery have all collapsed at a parallel rate. This rate has drastically accelerated in the last five years. During this same time, exports of water south have increased as much as thirty percent when compared to previous records.

When Bill Jennings, Executive Director of CSPA, heard of the suit he exclaimed, “Striped bass have coexisted with salmon and smelt in the Delta estuary for more than a hundred years. The dramatic almost 30% increase in the amount of water exported in recent years is the one clear culprit that has led to population crashes of numerous species; including salmon, steelhead, striped bass, Delta smelt, longfin smelt, splittail, threadfin shad, among others!”

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July 8, 2008 · Filed Under Judge Wanger salmon ruling

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Red Bluff Diversion Dam stays: Judge turns down removal request after two-week hearing

Posted by: Aqua Blog Maven on July 5, 2008 at 5:58 am

From the Capital Ag Press:

A federal judge has turned down a request by fishing and environmental groups that could have resulted in the removal of the Red Bluff Diversion Dam. “We dodged a bullet but we’re not out of the woods,” said Jeff Sutton, general manager of the Tehama-Colusa Canal Authority based in Willows.

Judge Oliver Wanger denied a request for emergency injunctive relief on Friday, June 27, in Fresno. The motion had been filed by the Pacific Coast Federation of Fishermen’s Associations/Institute for Fisheries Resources and the National Resources Defense Council, according to court records.

The case looks at the impacts of the Central Valley Project on the Sacramento River winter-run chinook salmon, the Central Valley spring-run chinook salmon and the Central Valley steelhead.

The ruling followed a two-week hearing, said Sutton, who was in the courtroom. Wanger found that some of his conclusions about the project and its impact on fish was based on wrong data, which led him to continue the hearing to allow more evidence to be submitted.

Sutton said Wanger ultimately decided to deny the request for emergency relief to take the dam out, finding there was insignificant harm to the spring chinook salmon if it remains through July.

Wanger also ruled that the dam’s gates could stay down until Aug. 1, which poses a concern. “August 1 does not take us to the end of the irrigation period,” Sutton said.

If the diversion dam’s gates are lifted mid-season, when peak demand hits between 1,200 and 1,800 cubic feet per second, it would put the entire service area at risk, said Sutton.

Read the full text of this story from the Capital Ag Press by clicking here.

July 5, 2008 · Filed Under Judge Wanger salmon ruling

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Federal salmon trial continues in Fresno

Posted by: Aqua Blog Maven on July 3, 2008 at 8:24 am

From the California Farm Bureau Federation:

The outlook for spring and winter run salmon, along with native steelhead, is the focus of a federal trial continuing in Fresno. The trial’s outcome could further limit the state’s water supply if the court finds current water project operations add to the species’ decline.

Proceedings in U.S. District Court before judge Oliver Wanger have been under way for the better part of two weeks, with testimony from fisheries biologists consuming most of that time. The trial continues this week with further expert testimony, including operations of the state and federal water projects.

This phase of the trial, which will span several weeks, is devoted to testimony in a case brought against the U.S. Bureau of Reclamation and the state Department of Water Resources by the Natural Resources Defense Council, along with California Trout, Baykeeper and its Deltakeeper Chapter, Friends of the River and the Bay Institute.

The court has already found the biological opinion used to guide state and federal water operations in the Sacramento-San Joaquin Delta and the Sacramento River inadequate. This phase of the case is to determine if additional protections for the fish are needed.

California Farm Bureau Federation is participating in the trial on behalf of the defendants, as are many of the irrigation districts that would be affected by changes in project operations or further curtailment of water delivers–particularly from lakes Shasta and Oroville.

A new biological opinion is being developed now by the National Marine Fisheries Service, but won’t be complete until sometime next spring. The court is trying to determine if addition steps should be taken in the meantime to protect the fish.

“Testimony is proceeding regarding the current management of releases from Lake Shasta through the Red Bluff Diversion Dam and the operation of the Tehama Colusa Canal,” said CFBF Counsel Kari Fisher of the Natural Resources and Environmental Division.

Red Bluff Diversion Dam and the canal, which is used to deliver water to 17 irrigation districts, contracts with the U.S. Department of the Interior’s Bureau of Reclamation for long-term water supply from Lake Shasta. The water is used to irrigate about 300,000 acres of farmland in Tehama, Glenn, Colusa and Yolo counties.

“Although there have been several days of expert testimony on the outlook for species, it’s hard of assess how the judge is evaluating the information,” Fisher said. “It is up to Judge Wanger to decide if immediate remedies need to occur.”

Specific interim remedies have been submitted by the plaintiffs, put forward by fisheries biologist Tina Swanson, who is a senior scientist for Novato-based Bay Institute.

In 2003, she was appointed by National Oceanic and Atmospheric Administration’s to the Central Valley Technical Recovery Team, a team of scientists developing recovery criteria and strategies for Endangered Species Act-listed salmonids in the watershed. She also serves on the California Bay-Delta Authority’s Adaptive Management Planning Team for delta ecosystem restoration.

Immediate actions Swanson has proposed to the court in her depositions include:

* Modifying Lake Shasta water releases to establish and maintain a water temperature of 56 degrees Fahrenheit at Balls Ferry.
* Modifying Shasta Reservoir releases to conserve water and maximize the amount of stored water carried over to the 2009 water year, which would further reduce water supplies for this year. Water years operate from Oct. 1 to Sept. 30.
* Open Red Bluff Diversion Dam gates to allow passage of adult salmon and reduce mortality of juveniles. There currently are fish ladders at this location which experts say may slow migration, but not prevent it.
* Maintain Clear Creek flows at a minimum of 200 cubic feet per second in June and a minimum of 150 cfs in July and August.

“Until testimony concludes and the judge rules on this issue, we do not know the full extent of impact for our farmers,” Fisher said. “There are numerous protections in place for our fisheries and we will have to wait and see if the court finds them adequate in the interim.”

July 3, 2008 · Filed Under Judge Wanger salmon ruling, Salmon

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Wanger rules Red Bluff diversion dam gates to remain closed - for now

Posted by: Aqua Blog Maven on June 28, 2008 at 7:36 am

From the Fresno Bee:

A federal judge on Friday rejected an emergency request by environmentalists to immediately open the gates of a key dam on the Sacramento River, a move they said was needed to allow endangered Chinook salmon to reach their spawning grounds.

The decision by U.S. District Judge Oliver W. Wanger sent a wave of relief through nervous Sacramento Valley farmers and growers who depend on water diverted at the dam to feed their crops. “We dodged a bullet,” said Jeff Sutton, general manager of the Tehama-Colusa Canal Authority.

Wanger, however, also said he was leaning toward ordering the gates of the Red Bluff Diversion Dam to open Sept. 2, about two weeks earlier than normal. He said he wants to hear more testimony on that matter and didn’t issue any final ruling.

Though peak time for irrigating is July and August, if September is a hot month, opening the gates two weeks early could have an adverse effect on the same growers who feared the gates would be ordered open now, said Ken LaGrande, the canal authority’s chairman.

But Natural Resources Defense Council attorney Kate Poole, who is participating in the hearing, said the gates remaining closed now hurt Chinook salmon heading upstream to their spawning grounds. In August and September, the gates need to be open to assist young salmon heading back downstream to the ocean. Poole has said the species are in peril and need help to survive the state’s drought conditions.

The ruling came as part of the Wanger court proceedings regarding the effect of water diversions on the Chinook salmon. Read more on this story from the Fresno Bee by clicking here. (Note: you may need to scroll down to read the story.)

June 28, 2008 · Filed Under Judge Wanger salmon ruling, Salmon

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Salmon trial is slowed by legal maneuvers

Posted by: Aqua Blog Maven on June 24, 2008 at 8:26 pm

From the California Farm Bureau Federation:

In a surprise move last week, attorneys for environmental groups pressed a federal judge in Fresno for emergency protections of endangered salmon and steelhead runs. The request came in the middle of a trial in Federal District Court that has already consumed several weeks of testimony.

The outcome of the emergency motion and the overall trial could further limit the state’s water supply if the court finds current water project operations add to the decline of the species.

As the trial continues, California Farm Bureau Federation Associate Counsel John Weech said, “We’re actively engaged in these trial proceedings. We’re well aware of the potentially far-reaching impact decisions of the court will have on the state’s agriculture. Farmers and ranchers support healthy fisheries and well-reasoned measures to guard our wildlife resources, but simply removing water from agriculture is not an acceptable solution to a complex problem.

“We will continue to advocate for comprehensive approaches to California’s water challenges that don’t have a draconian effect on our food supply,” said Weech, who is an attorney for CFBF’s Natural Resources and Environmental Division.

The emergency request for an injunction to increase flows on Clear Creek and remove the gates at the Red Bluff Diversion dam came in the middle of an ongoing trial related to the decline of winter and spring chinook salmon and steelhead runs.

Plaintiffs in the case cited an emergency because the spring salmon run has nearly concluded and, as the trial continues, changes to U.S. Bureau of Reclamation project operations would have less benefit to the fish.

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June 24, 2008 · Filed Under Agriculture, Judge Wanger salmon ruling, Salmon

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Wanger court turns it’s attention to salmon; fight over fish could further reduce water availability

Posted by: Aqua Blog Maven on June 7, 2008 at 11:07 am

From Stockton’s Record:

The same federal judge who ordered historic water cutbacks to protect Delta smelt last year began trial-like proceedings Friday for an equally beleaguered, yet more beloved, fish: salmon. And while it could be weeks before he rules, Judge Oliver Wanger indicated he will consider the economic impact of withholding water from farms and cities already parched from California’s first drought since the early 1990s.

Endangered species are considered the first priority in conflicts such as these, under federal law. “It’s the law,” Wanger said. “We can’t just ignore the law because it’s convenient or expedient.” But, he added, economic hardships “need to be on the table.”

Wanger ruled in April that the federal government’s guidelines protecting two species of salmon and steelhead were faulty and must be rewritten. The new guidelines won’t be finished until March. Wanger wants to know how imperiled the fish are and what if anything should be done this year to protect them. That could mean even more changes in how much water is available for millions of Californians.

Read the full text of this article from Stockton’s Record by clicking here.

From the Fresno Bee:

U.S. District Judge Oliver W. Wanger — who in April invalidated a key part of the federal water plan because he said it violated the Endangered Species Act by not adequately protecting winter-run Chinook salmon, spring-run Chinook salmon and the Central Valley steelhead — will first decide if any steps need to be taken to protect the fish. That will likely be decided late next week. If Wanger finds something must be done to protect the three fish species, the trial will then turn to that matter.

Environmentalists are seeking four primary measures to address the issue:

    Increase cold-water releases from Lake Shasta to make the Sacramento River’s temperature lower at a point farther downstream. That would assist in salmon spawning.

    Maintain 1.9 million acre-feet of water in Shasta.

    Keep a diversion dam on the Sacramento River near Red Bluff open longer.

    Maintain higher water flows in Clear Creek, a salmon-spawning waterway that flows into the Sacramento River.

Natural Resources Defense Council attorney Kate Poole, who participated in Friday’s hearing, said the three fish species are being pushed to the edge of extinction.  “It’s not clear they will be able to survive these critically dry years,” she said. “We need to make sure they get a fighting chance to weather this drought.”

The government and its water agency allies think Wanger should do nothing.  Currently, they say, the National Marine Fisheries Service is rewriting a biological report on the Central Valley Project’s effects on the steelhead and two salmon species that Wanger invalidated. That should be done by next spring and should address the environmentalists’ concerns.

They’re also baffled by the environmentalists request to release more water from Shasta, but also maintain 1.9 million acre-feet, said attorney Daniel O’Hanlon, who represents the San Luis & Delta-Mendota Water Authority, which represents water districts — including Westlands — covering more than 2 million acres of farmland.  “We can’t make sense of that,” he said.

More coverage from the Fresno Bee by clicking here.

June 7, 2008 · Filed Under Judge Wanger salmon ruling

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Wanger Court to consider further steps to curtail water deliveries, help salmon

Posted by: Aqua Blog Maven on June 6, 2008 at 7:51 am

From Inside the Bay Area:

A federal judge today will begin considering whether to further restrict the flow of water to California farms and cities in a state already parched by drought. U.S. District Judge Oliver Wanger has already ruled that permits meant to prevent water managers from driving fish extinct are failing and illegal.

Last year, he ordered Delta pumping reductions of as much as 30 percent because Delta smelt are vanishing. The hearing in Fresno, which may extend into next week, could lead to further restrictions to protect salmon and steelhead, which are also in decline. “This isn’t going to solve the salmon crisis but it can help quite a bit,” said Zeke Grader, who represents commercial salmon fishers who joined with environmentalists to bring the lawsuit.

Most observers do not expect a court order as dramatic as the one Wanger issued last year. In part, that is because salmon and steelhead do not appear to be as threatened as Delta smelt, which are facing the possibility of imminent extinction. “There was common agreement with the Delta smelt that it was disappearing from the system,” said Chris Scheuring, a water lawyer for the California Farm Bureau. “The salmon and steelhead are in a little more hopeful situation than the Delta smelt.”

Instead, environmentalists and anglers are asking water managers to maintain colder temperatures in spawning beds, save more water behind dams and take other measures that would have a more subtle effect on water supplies.

Today’s testimony will focus on the status of salmon and steelhead runs and whether court intervention is needed. If so, it will likely take several days of testimony before the judge reaches decisions on what protective measures to order.

Read more from Inside the Bay Area by clicking here.

June 6, 2008 · Filed Under Judge Wanger salmon ruling, Salmon

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Judge Wanger orders reports on three imperiled fish species; sets court date for June 6

Posted by: Aqua Blog Maven on April 27, 2008 at 7:46 am

From the Fresno Bee:

A federal judge in Fresno set a June 6 hearing to discuss the possibility of more water cutbacks for farms and cities this summer to protect three imperiled species of fish.

U.S. District Judge Oliver W. Wanger also ordered federal agencies to file a report by mid-May on the status of winter-run chinook salmon, spring-run chinook salmon and the Central Valley steelhead. The judge on Friday said he needs more information to determine whether the fish need immediate protection from water pumping. Wanger last week invalidated a key part of a major federal water plan, saying it does not adequately protect the fish under the Endangered Species Act.

One of the many questions surrounding the case: Are the fish suffering from a problem occurring in the ocean or in the delta? Environmentalists and federal officials are expected to address such issues at the June hearing.

Read the rest of this story from the Fresno Bee by clicking here.

April 27, 2008 · Filed Under Endangered Species & Wildlife, Judge Wanger salmon ruling

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Salmon ruling could impact water deliveries

Posted by: Aqua Blog Maven on April 23, 2008 at 6:16 am

From the California Farm Bureau Federation:

In a long-awaited decision, a federal court in Fresno found that a 2004 biological opinion by the U.S. Fish and Wildlife Service does not adequately protect sensitive fish populations when authorizing long-term operations of the state and federal water projects.

Environmental groups brought suit against the state and federal government, which operate the conveyance system that provide water to more than 25 million Californians and water to irrigate more than 9 million acres of food crops. The environmental groups said the biological opinions used to authorize operations of the State Water Project and the Central Valley Project don’t adequately protect winter-run and spring-run Chinook salmon, or Central Valley steelhead.

The California Farm Bureau Federation was among the organizations that intervened in the case on the side of the water projects and water users. The case is similar to the delta-smelt case, in which CFBF also intervened. The same judge, U.S. District Court Judge Oliver Wanger of Fresno, ruled last year that the biological opinion for the smelt also was inadequate. Water supplies from the projects have been reduced this year, as a result.

“The court has handed down a 151-page decision and we’re still going through it,” said Chris Scheuring, CFBF managing counsel for the Natural Resources and Environmental Division. “What this ruling will mean for our members is still being determined, but we do have the gist of it.

“Legally, there are a lot of moving parts. There will be another hearing next Friday (April 25) to address the critical question–do we need to do anything further to alter operations of the water projects in light of this ruling?”

Read more

April 23, 2008 · Filed Under Judge Wanger salmon ruling, Salmon

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Farmers shouldn’t blame Wanger, says commentary

Posted by: Aqua Blog Maven on April 18, 2008 at 3:40 pm

From the Fresno Bee, this editorial:

Farmers angry about losing irrigation water to environmental restoration have made his name an epithet, right along with the tiny delta smelt and majestic chinook salmon. They curse the day that Oliver W. Wanger got his federal judgeship and talk about hiring smart lawyers to overturn his rulings.

It’s their money to do with what they please. But they should know this: Wanger’s decisions are based on law, not liberal activist leanings.

Wanger, 67, was nominated to the bench by President George H.W. Bush and is a registered Republican. Before becoming a judge, Wanger was a senior partner at McCormick, Barstow, Sheppard, Wayte & Carruth — the Fresno cradle of judges specializing in business litigation.

Never have I heard anyone describe the firm as a bastion of liberal causes. But I have heard Wanger described as smart — brilliant, even.

When Wanger was sworn in, Judge Robert E. Coyle — for whom the federal courthouse in Fresno was named — said: “Ollie comes to us with the tools, intelligence, knowledge of the law and ability to grasp situations simultaneously.”

The column ultimately points out this:

Wanger is following the law. Not bending it left or right, or ruling capriciously. Even though the Bush administration pretends otherwise, the Endangered Species Act remains the law of the land.

By having the courage to remind growers, environmentalists and even presidents of that salient fact, Wanger is forcing stakeholders to confront the reality of what we’ve done to the delta.

Thanks to the judge, the choice is now ours. We can fix the delta with science and collaboration or we can elect to-hell-with-the-environment legislators willing to gut the Endangered Species Act.

Whatever the ultimate verdict, don’t blame Wanger.

Full text of this editorial from the Fresno Bee by clicking here.

April 18, 2008 · Filed Under Delta Issues, Judge Wanger delta smelt ruling, Judge Wanger salmon ruling

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Coverage from around the state: Wanger rules federal permit to protect salmon from water deliveries illegal; ruling could mean further Delta export restrictions

Posted by: Aqua Blog Maven on April 17, 2008 at 8:04 am

More on yesterday’s big news story regarding the latest ruling from the Wanger court, this time in favor of the salmon & steelhead:

From Mike Taugher at the Contra Costa County Times:

The federal permit meant to protect the most imperiled salmon runs in California rivers where other salmon populations are collapsing is illegal, a federal judge ruled Wednesday. It was the second time in a year that U.S. District Judge Oliver Wanger struck down a permit meant to shield fish from the effects of California’s water delivery systems.

The rulings, which come at a time when several Delta fish populations are in a state of collapse, conclude that federal agencies responsible for regulating water operations under the Endangered Species Act have been too soft.

Environmentalists and anglers say regulators’ leniency allowed water pumping to significantly contribute to the fish collapse. Wednesday’s court ruling “basically reinforces what we’ve been saying,” said Zeke Grader, executive director of the Pacific Coast Federation of Fishermen’s Associations. “What was going on here is the Bush administration told their higher-ups to shut their scientists up and let us take more water,” he said.

The permit struck down was issued in 2004 under questionable circumstances: Although scientists in the National Marine Fisheries Service concluded that the conditions it laid out would allow water operations to threaten two salmon runs and steelhead with extinction, that conclusion was overturned by James Lecky, now the Bush administration’s top official overseeing marine endangered species. “The (permit) is … inexplicably inconsistent as to the species’ survival and recovery,” Wanger ruled.

The Sacramento Bee gives more information on the biological opinion:

The U.S. Bureau of Reclamation and National Marine Fisheries Service violated the Endangered Species Act in approving rules to guide these new operations, called a biological opinion, Wanger ruled.

The biological opinion was controversial from the beginning. A draft prepared by Fisheries Service biologists in Sacramento concluded fish would be harmed by the new water operations. But The Bee reported in October 2004 that this finding was summarily reversed by political appointees.

The agencies behaved in an “arbitrary and capricious” manner, the judge found, by failing to include measures to recover the species, which include Central Valley steelhead and winter- and spring-run chinook salmon. They also failed to consider the effect of climate change on water operations. The evidence included findings by the agencies themselves that the new operations could kill 20 percent of each species.

“In practical terms this forecasts elimination of spring-run salmon from the Sacramento River, a total loss of habitat, despite the … conclusion there will be no adverse impact or jeopardy to the species,” Wanger wrote.

Stockton’s Record adds this:

Wanger pointed out contradictions in the previous report in his 151-page ruling. For example, the Fisheries Service reported anywhere from 51 percent to 66 percent of juvenile steelhead would be killed if water exports increased. Steelhead could be eliminated from some rivers. Yet the service decided the species would not be jeopardized, a contradictory conclusion, the judge wrote.

The rules also didn’t consider climate change, which could reduce the Sierra Nevada snowpack and diminish the amount of cold water that salmon need to survive and spawn, Wanger ruled.

A hearing next week will address actions to help salmon and steelhead until the new rules are finished. That could mean less pumping, officials said.

Wanger’s smelt ruling has so far decreased water supplies by about 30 percent, or 600,000 to 700,000 acre-feet, according to the state Department of Water Resources. That’s enough water annually for at least 2.4 million people.

“We’ve got to change how we attack these issues,” said Jerry Johns, deputy director of the Department of Water Resources.

So how will this affect Southern California? From the Los Angeles Times:

Though the judge’s decision might further curb delta exports, a more likely result is operational changes 250 miles to the north at Shasta Dam, experts on both sides said. Cradling the state’s biggest reservoir, the dam traditionally releases most of its water down the Sacramento River and onward to the delta in late summer and fall. But environmentalists have pushed for more cold-water releases to help the struggling runs of salmon and steelhead.

Sherwood of Earthjustice said the ruling could mark “a turning point” in operations by the state and federal water projects, which redid the California landscape in the 20th century to move water from the wet north to farms and communities in the south.

Jeff McCracken, a spokesman for the U.S. Bureau of Reclamation, which operates Shasta Dam as part of the federal water project, said it was too soon to decipher the decision’s fallout. There will be no impacts until the judge tells us we have to do something differently,” he said. “At this point we haven’t gotten there.”

Laura King Moon, assistant general manager of the nonprofit State Water Contractors, said the ruling underscored the importance of the Bay Delta Conservation Plan, an effort underway in Sacramento to spotlight ways to heal the delta while fixing the water delivery system. We can’t continue to have the water system of our state remain at the mercy of every individual endangered species,” she said. “We need a comprehensive plan.”

Lester Snow, state Department of Water Resources chief, agreed that the ruling was “further evidence that the delta is teetering on the brink of collapse,” noting that Gov. Arnold Schwarzenegger had proposed a slate of solutions.

Among the fixes being eyed is construction of the long-debated Peripheral Canal, which would divert water around the delta and onward to Southern California. The proposal has been condemned by environmentalists and others who say it would rob the delta of the water it needs for fish to survive.

The ACWA issued this press release in the wake of the ruling:

Association of California Water Agencies (ACWA) Executive Director Timothy Quinn released the following statement regarding today’s court ruling on operation of the state and federal water projects and impacts on salmon and steelhead.

“Though it’s too early to say how the ruling will affect water project operations this year, it’s safe to say this is one more factor that will add to the management challenge of operating our water system to adequately protect fish and meet our water supply needs.

“When you factor in existing constraints on water supply operations in the Delta and now the possible addition of new constraints on storage above the Delta, it underscores the need for a comprehensive solution that can meet the co-equal needs of the environment and the economy. Both are losing now.

“We have to invest in a system that can accomplish both objectives.”

Environmental groups and government agencies will meet in Fresno on April 25th to begin the process of figuring out how to modify operations while a new permit is drafted.

Click here to read more coverage from around the state in yesterday’s breaking news post on Aquafornia. For coverage from the San Francisco Chronicle, click here. For coverage from the Voice of San Diego, click here.

April 17, 2008 · Filed Under Endangered Species & Wildlife, Judge Wanger salmon ruling, Salmon

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BREAKING NEWS: Wanger rules again, this time for the salmon; could ultimtely mean less water for Southern California

Posted by: Aqua Blog Maven on April 16, 2008 at 4:44 pm

From the Sacramento Bee:

A federal judge in Fresno ruled Wednesday that a 2004 permit to operate state and federal water projects in California violated the Endangered Species Act, potentially jeopardizing the survival of Central Valley steelhead and two species of salmon.

The decision by Judge Oliver Wanger will require the U.S. Bureau of Reclamation and the National Marine Fisheries Service to prepare a new permit to operate the water systems. That new permit is already being drafted and is expected to be completed by the end of this year. But Wanger may impose interim regulations to protect the fish until then, which could further reduce water supplies in California.

Wanger is the judge who in December ordered new protections for threatened Delta smelt, which are predicted to reduce water deliveries this year by 30 percent to some 25 million Californians.

Mike Sherwood, an attorney for Oakland-based Earthjustice who handled the case on behalf of 10 environmental groups, said the ruling shows that California has been operating its water systems at full throttle for too long, and its native fish species have paid the price.

From the Fresno Bee:

A 151-page decision issued by U.S. District Judge Oliver W. Wanger found that a key opinion — known as a “biological opinion” — covering winter-run Chinook salmon, spring-run Chinook salmon and the Central Valley steelhead violated the federal Endangered Species Act and must be rewritten.

The practical effects of the decision are unknown until further hearings are held before Wanger. Those hearings — the first of which is scheduled for April 23 — will address what to do now that Wanger has found the law was violated.

But, as with the tiny delta smelt, the result will likely be further cuts in water deliveries for both the state and federal water projects. Such cuts would be felt all across the state, from urban users in both the Bay Area and Southern California to west-side agricultural interests that depend on water pumped through massive delta pumps for irrigation.

Read the full text of the article from the Sacramento Bee by clicking here. Read the full text of the article from the Fresno Bee by clicking here. Brief coverage from the San Jose Mercury News can be found by clicking here.

From Dan Bacher at IndyBay.org:

Recreational fishing, commercial fishing and conservation groups and the Winnemem Wintu Tribe celebrated the ruling as a victory for the millions of Californians who depend on the delta for drinking water, fishing jobs and agriculture. The Sacramento-San Joaquin River Delta is the largest and most significant estuary on the West Coast - and increased state and federal exports to subsidized agribusiness and southern California in recent years are a key factor in the collapse of Sacramento River salmon.

In his opinion Judge Oliver W. Wanger relied on the National Marine Fisheries Services’ (NMFS) own finding that diverting water from the bay-delta was killing huge numbers of salmon. He said, “This morbid projection is inconsistent, if not irreconcilable” with the agency’s opinion that the project operations did not jeopardize the survival of the fish. He also faulted the agency for failing to analyze the effects of global warming on the fish, calling that failure “arbitrary and capricious.”

“How extirpation of approaching one-third of the species affected by Project operations does not constitute jeopardy is not explained,” said Wanger. “NMFS’s no jeopardy conclusion for the Project operations’ effects on the spring-run Chinook is expressly contradicted by underlying data and opinions of the BiOp.”

Comprehensive coverage from Dan Bacher at IndyBay.org by clicking here; article includes the press release from Earth Justice and key quotes from the court decision.

In response to the ruling, DWR issued this response:

The Department of Water Resources today released this statement by Director Lester A. Snow in response to federal Judge Oliver Wanger’s decision on salmon.

“Although we don’t yet know the full effects that today’s decision by Judge Wanger may have on the state’s water deliveries, it is further evidence that the Delta is teetering on the brink of collapse. Governor Schwarzenegger has outlined a comprehensive plan for Delta sustainability to protect the fragile environment and ensure reliable water supplies for 25 million Californians. The clock is ticking and we must move forward on a Delta solution.”

A remedy hearing on the matter is set for April 25 in Fresno.

Much more on this tomorrow, I’m sure!

April 16, 2008 · Filed Under Endangered Species & Wildlife, Judge Wanger salmon ruling

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