Fish Wins Latest California Water Fight

California’s long-running battle between farmers and environmentalists over water, took a new turn Thursday, with a federal appeals court upholding guidelines that limit water diversion to growers in order to protect a Delta fish.

In the midst of a statewide drought that has already imposed water supply limits in some areas, the 9th U.S. Circuit Court of Appeals reinstated recommended state reductions in water exports from the water-rich north to the southern deserts.

The cutback in water exports will leave additional water in the Sacramento Delta for the tiny Delta smelt.

The court panel split on a variety of issues and took more than 180 pages to analyze the water law dispute.

Judge Jay Bybee wrote that the trial judge should have deferred to the Fish and Wildlife Service.

“We recognize the enormous practical implications of this decision,” Bybee said.  “But the consequences were prescribed when Congress determined that ‘these species of fish, wildlife, and plants are of esthetic, ecological, educational, historical, recreational and scientific value to the nation and its people,” he wrote.

California’s Central Valley comprises some of the most productive farmland in the world, extending 450 miles from north to south and averaging 100 miles wide, he said.

While 70 percent of California’s water comes from rivers in the north, 70 percent of the demand is in the south, he said.  The water supplies irrigation for seven million acres of agriculture and more than 20 million people.

The state created two massive water projects between the 1930s and 1950s to supply water to the south.  Fish became trapped in two transfer plants and over a 15-year period, more than 110 million fish, from 52 species, were salvaged by being hauled in trucks to sites back in the Sacramento and San JoaquinRivers.  But many smaller fish and those in the juvenile and larval stage were killed in the pumps, according to the court.

Still more do not survive the salvage process.

Environmentalists fought to set limits on water transfers to protect the fish.  With increasing water demands in the south and less Colorado River water available, the pressure increased to release more water.

Bybee found the trial court should have followed the recommendations of the federal Fish & Wildlife service in its approach to preserving the imperiled populations of smelt.

“We conclude that the [Bureau of] Reclamation is obligated to comply with NEPA,” the National Environmental Protection Act, he added.

Judges Johnnie Rawlinson and visiting Judge Morris Arnold of the 8th Circuit, partially joined and partially dissented on differing issues, giving Bybee a two-vote majority for his opinion.

Case: San Luis & Delta-Mendota Water Authority v. Calif. Dept of Water Resources, No. 11-15871



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