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Federal Appeals Court Upholds Protections for Central Valley Salmon

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A female chinook salmon after arrival at the Feather River Fish Hatchery in Oroville.  (Dan Brekke/KQED)

A federal appeals court in San Francisco has upheld measures imposed by federal agencies to protect salmon and steelhead that migrate through the Sacramento-San Joaquin Delta.

A unanimous three-judge panel of the 9th U.S. Circuit Court of Appeals found that the National Marine Fisheries Service acted reasonably and within its discretion when it prescribed limits on the amount of water exported from the Sacramento-San Joaquin Delta in order to protect threatened and endangered salmonids.

The fisheries service's "biological opinion," issued in 2009, set seasonal limits on the volume of water that could be extracted by the massive federal and state pumping plants at the southern edge of the Delta. From there, water flows down a pair of massive canals to farms in the San Joaquin Valley and to urban customers from the South Bay to the Los Angeles area.

Fisheries service biologists said the pumping limits were necessary to prevent juvenile fish from imperiled Central Valley chinook and salmon runs from being pulled toward the pumps as they attempt to migrate out to sea. The biological opinion said pumping limits were needed, too, to aid endangered populations of sturgeon and orcas.


A wide array of irrigation districts, serving valley farmers, and urban water districts went to court to challenge the biological opinion. Those plaintiffs won the first round of the case when U.S. District Court Judge Oliver W. Wanger, of Fresno, ruled that fisheries service scientists had erred in developing their findings and that the agency's action was "arbitrary and capricious" under federal law.

Nine fishing and environment groups joined with federal agencies in appealing Wanger's ruling.

In Monday's decision, the appeals panel found that Wanger improperly considered evidence that was not part of the court record, that he had failed to give the National Marine Fisheries Service "substantial deference" the agency was due under federal law, and rejected the judge's finding that the agency's biological opinion was arbitrary and capricious.

John McManus, executive director of the Golden Gate Salmon Association, issued a statement after the ruling. He says in part:

"The court ruling makes clear that it's legal and right to limit the siphoning of Northern California water because that water is needed by salmon and other wildlife. The federal appeals court upheld limits on how much salmon water junior water rights holders south of the Delta, and others, can grab. ...

... . The court ruling is based on common sense, fairness, and compromise that recognizes the need to protect our rivers and the Delta if we're going to keep our salmon runs alive. Most Californians would agree we should reserve the water salmon need and protect the Delta in order to retain healthy salmon runs which are an incredible natural resource that provides food and jobs for many

Monday's ruling marks the second time this year that a 9th Circuit appeal has thrown out an endangered species decision from Wanger. In March, a panel reversed Wanger's 2011 ruling on a biological opinion from the U.S. Fish and Wildlife Service written to protect the endangered Delta smelt. As in the salmon case, Wanger faulted the agency scientists for their findings and declared that the biological opinion was arbitrary, capricious and unlawful.

Monday's decision is embedded below:

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