A federal appeals court has upheld restrictions on irrigation in California’s Central Valley, overruling an earlier ruling that discounted the scientific justification for the constraints.
The 9th U.S. Circuit Court of Appeals has found that U.S. District Judge Oliver Wanger erred by substituting his judgment for the scientific opinion of federal fish experts who crafted the water restrictions.
In 2011, Wanger decided that a National Marine Fisheries Service “biological opinion” — which found irrigation projects in the Central Valley jeopardized federally protected salmon and steelhead — was “arbitrary, capricious and unlawful.”
The judge ordered the agency to reconsider its findings but left the restrictions in place pending the completion of that review.
NMFS and several environmental groups appealed that decision to the 9th Circuit, which has now reversed Wanger’s findings that the agency insufficiently explained its conclusions regarding fish populations and habitats.
The 9th Circuit’s ruling won’t have an immediate impact on irrigators because the water diversion constraints associated with the biological opinion weren’t vacated, said Damien Schiff, attorney for the Pacific Legal Foundation, a public interest law firm.
“We’ve been living under these restrictions for some time,” he said.
NMFS released the biological opinion in 2009, which prompted irrigators to file a complaint against the agency in federal court.
After Wanger threw out the biological opinion in 2011, irrigators were nonetheless able to apply for emergency relief. That option now won’t be available, Schiff said.
The restrictions that stemmed from the biological opinion for salmon were less onerous than those related to the biological opinion for smelt, which the 9th Circuit also upheld earlier this year, Schiff said.
In that case, the appellate court similarly overturned a ruling by Wanger that found federal experts didn’t adequately show that California irrigators jeopardize the existence of smelt.
Irrigators have challenged that decision before the U.S. Supreme Court, which will hold a conference on whether to review the case on Jan. 9.
Source: www.capitalpress.com