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In drought-stricken California, court rules smelt fish get water

By Dan Levine

SAN FRANCISCO (Reuters) - In the continuing battle over how California will cope with historic drought, an appeals court on Thursday sided with environmentalists over growers and upheld federal guidelines that limit water diversions in order to protect Delta smelt.

The 9th U.S. Circuit Court of Appeals ruled that a lower court should not have overturned recommendations that the state reduce exports of water from north to south California. The reduced exports leave more water in the Sacramento Delta for the finger-sized fish and have been blamed for exacerbating the effects of drought for humans.

The water-fish debate is a national political issue, and reaction from both sides was swift. In a blog post, Damien Schiff, an attorney for growers, said the ruling "bodes ill for farmers, farm laborers and millions of other Californians dependent on a reliable water supply."

Efforts to save the Delta smelt, which lives only in the wetlands stretching north of San Francisco, have been described as a humans versus fish battle.

Kate Poole, a senior attorney for the Natural Resources Defense Council, said growers' hopes of taking more water out of the Delta wouldn't solve California's problems.

"It's the drought, not the Delta, that's affecting the water supply this year," Poole said in a statement. "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."

At issue is a 2008 report by the U.S. Fish and Wildlife Service, which concluded that the fish's existence was threatened and recommended limited exports of water to farmers and southern California. Farmers and allies sued, and a lower court called the federal biological opinion "arbitrary and capricious."

However, in the opinion on Thursday, 9th Circuit Judge Jay Bybee ruled that the lower court should have been more deferential to the Fish and Wildlife Service.

Bybee, an appointee of President George W. Bush, is considered a consistent conservative voice on the 9th Circuit.

"We recognize the enormous practical implications of this decision," Bybee wrote. "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.'"

A spokesman for the U.S. Department of Justice, which represented wildlife regulators, said it was pleased with the ruling.

The case in the 9th Circuit is San Luis & Delta-Mendota Water Authority et al. vs. Sally Jewell et al., 11-15871.

(Reporting by Dan Levine; Editing by Stephen Powell and Peter Henderson)

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