Judge Wanger Denies TRO on Delta Smelt BiOp

Judge Wanger has issued a ruling denying Westlands/SLDMWA’s request for a temporary restraining order against the new pumping restrictions that went into effect on February 10 at 5:00 p.m. to protect delta smelt. Fish and Wildlife’s proposal to implement Component 1, Action 2 of the delta smelt RPA limits negative Old & Middle River (OMR) flows to at most -4,000 cfs, but those could be further limited to -1,250 cfs if necessary.

Environmentalists and fishermen are, of course, pleased that some protection for fish will remain, since it first appeared that none would after February 5, when Wanger temporarily lifted the NMFS pumping restrictions for salmon. Contractors, on the other hand, are not pleased: announcing that they will lose at least 90,000 acre-feet of water over the next week.  But looking at the fish salvage counts before and after February 5, one cannot help but notice that the numbers for delta smelt (PDF), winter-run Chinook salmon (PDF), and steelhead (PDF) all show an increase since February 5.  So even though Fish and Wildlife acted to protect the delta smelt, the data suggests that all fish stand to benefit from this action.

The irony is that before the February 5 TRO, Westlands and other contractors enjoyed pumping levels resulting in OMR flows no more negative than -5,000 cfs per the NMFS salmonid biological opinion — but that limit will now be a more restrictive -4,000 cfs.  At the end of January 2010, OMR flows did clock in more negative than -4,000 cfs, with no delta smelt salvaged except on February 3.  That translates into some extra capacity permitted by the NMFS BiOp, actually put to use, but which is unavailable under the USFWS regime that went into effect starting February 10.  That’s not to say there would not be restrictions later, as the RPA certainly provided for that.  But the point is that even after this week’s legal skirmish, water contractors are no better off than they were before, and may indeed have to face even tougher restrictions down the road.

To the extent that anyone has any idea what “co-equal goals” actually means in practice, I’ll go out on a limb to say that this solution appears to strike a better balance than permitting unrestrained “binge pumping” when fish are moving through the Delta — especially since it’s not the case that these restrictions actually shut off the flow of water altogether.

But the broader takeaway here is that there is a threshold amount of water that simply has to remain in the system to prevent environmental collapse.  This has been clear, at the very least, since Audubon. But it’s a lesson that in California we apparently need to keep “learning” again and again, in each new situation that arises.  Or perhaps we never actually learn it.  After all, we have been put on notice: “they’ll be back.”