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Court Approves California Delta Smelt Protections


The 9th Circuit Court of Appeals ruled 2-1 on Thursday that much of the U.S. Fish and Wildlife Service's 2008 biological opinion about the delta smelt was not arbitrary and capricious as a lower court judge had ruled.

The decision won't have any practical effect on water flows since protections for the smelt were kept in place while the lower court ruling was appealed.

Farmers and water districts had objected to the biological opinion and said Thursday they were disappointed by the 9th Circuit's ruling. Restrictions on water deliveries have spelled major losses for growers in the state's farm belt who rely on the Delta to irrigate crops.

Reactions to the decision:

Damien Schiff with the Pacific Legal Foundation, which represents some of the farmers in the case, said in a statement: 

“The Ninth Circuit has done a reverse rain dance for California, practically guaranteeing that the impacts of our current drought will be more devastating. 

The ruling gives judicial blessing to regulations that impose real punishment on people with only speculative benefits for a declining fish species.   Under these draconian regulations, water is withheld from farms, businesses and communities from the Central Valley to San Diego based on sloppy science and ideological agendas.    

There’s a drought of common sense in the bureaucracies that impose these regulations – and in the perverse legal precedents that lead courts to uphold them.  In one notorious precedent, TVA v. Hill, the U.S. Supreme Court said the Endangered Species Act gives absolute priority to species over everything else, including the general welfare of the human community.    

We must all hope that California’s water crisis – made worse today by the Ninth Circuit – can prod the U.S. Supreme Court to reconsider its past decisions that are leaving us so parched.    

Indeed, the one hopeful aspect of today’s ruling is there’s a possibility the smelt case could get to the Supreme Court.  There, it might result in a decision that turns the tide of environmental law away from imbalance and zealotry, and back toward sanity."

Kate Poole with the Natural Resources Defense Council released the following statement:

“The court reaffirmed the facts and recognized that science needs to guide our management of the Delta in order for our farms, cities and wildlife to thrive.

Taking more water out of the Delta is not going to solve our problems. The emergency drought is a state-wide problem that affects all of us – from farmers to fisherman to the average citizen. And it’s the drought, not the Delta, that’s affecting the water supply this year. That’s why Delta fisherman and farmers support these protections – because their jobs and livelihoods depend on it.

While we can’t make it rain, we can take charge of our water use by investing in smart water practices that protect and preserve our water supply. In order to ensure a healthy, productive fishing and farming industry in the Delta, the State needs to invest in a 21st-centurty water system that can that deliver clean, healthy water supplies for generations to come.  That means employing common sense water-saving measures including everything from water conservation in our homes to drought-resistant regional water supply strategies like water recycling to advanced irrigation systems on our farms. At a time when we cannot afford to let a drop go to waste, these steps will ensure a healthy water supply today and more resilient cities and farms tomorrow.

Today’s ruling recognizes the importance of the Delta’s fishing and farming community, which deserves to have its livelihood preserved. We now look forward to working with the State to advance real long-term solutions to our water needs.”

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