Judge Wanger Rules on Implementation of the Fall X2 Action

August 31, 2011 - Judge Wanger enjoined implementation of the Fall X2 Action at the 74 km marker proposed by federal agencies in the 2008 delta smelt biological opinion.  Water user plaintiffs had sought an injunction barring implementation of the Fall X2 Action in 2011 because federal defendants indicated their intent to implement the action, and set the average monthly location of X2 at 74 km, despite the fact that the Court had previously ruled that the underlying basis for the action was unlawful.

In its decision prohibiting implementation of the Fall X2 Action as proposed by the federal agencies, the Court found that the estimated cost of the X2 action to water users would be 670,000 acre feet if 2012 is critically dry or dry, and 300,000 acre feet if 2012 is below normal or above normal.  The Court determined that this water loss would impact long-term water supply reliability for both domestic and agricultural users, and that there would be significant impacts to groundwater recharge programs, with resulting direct environmental impacts to groundwater levels, groundwater quality, and energy use.  

With respect to the benefit of the X2 action, the Court was doubtful; the Court called into question the credibility of federal defendants' key witness, Mr. Feyrer, stating "[h]is scientific objectivity is compromised by inconsistency."  In contrast, the Court acknowledged the value of plaintiffs’ expert, Dr. Deriso's, life cycle work, indicating defendants' critiques "do not undermine its essential value as a peer-reviewed life cycle model that concludes there is no correlation between the position of X2 and delta smelt abundance."  

In conclusion, the Court held, among other things, as follows: "The scientific evidence in support of imposing any Fall X2 action is manifestly equivocal.  There is essentially no biological evidence to support the necessity of the specific 74 km requirement set to be triggered in this 'wet' water year.  The agencies 'still don't get it.'  They continue to believe their 'right to be mistaken' excuses precise and competent scientific analysis for actions they know will wreak havoc on California's water supply."  

In light of these findings and the fact that setting the position of X2 at 79 km will have a probable water supply impact of 90,000 acre feet rather than 300,000 acre feet or more, the Court held that no Fall X2 Action "setting the X2 target west of 79 km shall be implemented. "

In sum, the Court’s decision provides that the Fall X2 Action may not be implemented at 74 km as proposed by the federal wildlife agencies under the delta smelt biological opinion; rather the federal agencies may only require the location of X2 to be held at 79 km this fall.  This is a positive decision for water users as it will likely result in greater water deliveries through the Delta in 2012.