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January 11, 2011 > Federal judge orders rewrite of delta smelt plan

Federal judge orders rewrite of delta smelt plan

Submitted By AP Wire Service

FRESNO, Calif. (AP), Dec 14 - A federal judge on Tuesday ordered the U.S. Fish and Wildlife Service to rewrite parts of its plan to protect a tiny, threatened fish that lives in California's freshwater delta.

U.S. District Judge Oliver Wanger said in a 225-page opinion that portions of the guidelines meant to protect the delta smelt and manage water flows from the Sacramento-San Joaquin Delta violated the law.

The opinion covered six cases filed separately by agriculture interests, environmental groups and urban water districts against federal wildlife, land and water managers over the smelt plans, called a biological opinion.

``The 2008 (biological opinion findings) are arbitrary, capricious, and unlawful, and are remanded to Fish & Wildlife for further consideration in accordance with this decision and the requirements of law,'' Wanger wrote.

He also blamed Fish & Wildlife for conducting ``sloppy science and uni-directional prescriptions that ignore California's water needs.''

Wanger's opinion does not dispute that the massive pumps used to deliver water to farms in the San Joaquin Valley and Southern California cities have harmed the silvery smelt, which is listed as threatened under the Endangered Species Act.

But he said parts of the 2008 plan needed to be redone to better determine the pumping restrictions' economic effects on farmers and other businesses reliant on water deliveries.

``With the economy struggling and unemployment still soaring, it is welcome to see a judge refusing to rubber stamp extreme, destructive and unjustified environmental regulations,'' said Damien Schiff, an attorney with the Pacific Legal Foundation, which represented three farmers who say water cutbacks harmed their businesses.

The ruling itself is not expected to have an immediate effect on water deliveries. Attorneys said details of any changes would be decided in future court hearings.

In recent years, court decisions aimed at protecting the smelt have restricted water deliveries from the delta, the inland freshwater estuary where the fish live, and have spelled major losses for growers in the state's farm belt who rely on the system to irrigate their crops.

The delta smelt is considered a bellwether species for the estuary's overall health and is listed as an endangered species in California.

Environmental groups who are fighting for the smelt's protections were buoyed that Wanger's opinion made clear that the pumping was killing the fish, but said it would ultimately lead to more delays while federal scientists conduct more tests and revise their plan.

``While we go back and forth trying to find more perfect information, the estuary keeps declining,'' said Kate Poole, an attorney with the Natural Resources Defense Council. ``And the best result for the environment and the state's water supply is to restore that estuary, so to the extent that this delays that from happening, it's disappointing.''

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