html xmlns="" xml:lang="en" lang="en"> From the archives: Wow.

Friday, June 01, 2007


I guess he took my post from yesterday to heart. Schwartzenegger wants to say NO. No. You can't build houses in a floodplain.

Also, if you only find twenty-five Delta smelt in the entire Delta, that is reason enough to turn off the pumps.

Remember how I told you that Judge R0esch told the Dpt of Wtr Rsrcs that they cannot just pretend they have a take permit to run their pumps? That they must actually HAVE a document that says "Take Permit" from the Dpt of Fsh and Gme? Well, one of the Dept of Wtr Rsrcs responses was to say, "No, no, Judge R0esch. It is actually cool. See, we're going along with what the Feds did. They have a Biological Opinion from the Fsh and Wldlfe Service, to run their federal pumps under the national Endangered Species Act. Let's just say that the national Endangered Species Act and the California Endangered Species Act are the same, and use the Biological Opinion for both, 'K? So, it's cool. We're chill."

It isn't clear whether Huge Stones R0esch would have gone along with that, but he can't now. His colleague in Fresno, Judge W4nger, has thrown out the Biological Opinion that supported the feds pumping water through the Delta for the Centrl Vally Projct. Judge W4nger threw out the fed's Biological Opinion for being "arbitrary and capricious". He is pretty much telling the federal Fsh and Wldlfe Srvice that they made it up.

Judges don't like to overturn agency decisions. Judges tend to think that they are experts in law, and agencies are experts in their fields. By and large, judges do not want to learn esoteric water policy, and evaluate Take Permits and EIRs and Biological Opinions on their merits. Who would? Even if they did, there would be the question of whether they would simply be substituting their (new) professional opinions for that of the agency experts. Judges don't want to get into that mess, so instead the standard for judicial review is "Are they talking crazytalk?". Is the challenged document arbitrary and capricious? And recently, under the Bush administration, federal agency plans have increasingly been found to be "arbitrary and capricious". That used to be incredibly rare, but I've seen it happen three or four times in the past couple years. It should shock you, that a judge is willing to say that the plans that come out of several years of work at an agency are "arbitrary and capricious", have so little founding in fact or science that they are worthless. It didn't used to be like that, but before Bush, political appointees didn't arbitrarily change conclusions to support political outcomes (or were less blatant about it or didn't get sued and caught, but my take is that the Bush administration's disdain for agency integrity is unprecedented.).

Anyway, Judge W4nger said the federal Biological Opinion is trash. So the Dept of Wtr Resrces can't pretend that it will serve as a Take Permit for them either. Don't know when the pumps will come back on after this shutdown, but DVVR will need a genuine Take Permit to keep them running.


Blogger Oberon said... garden is starting to sprout little seedlings.

4:33 PM  
Anonymous Müig said...

So... this post has been run through the Strategic Devowelator 2000...? What's up with that? You don't want the inquisitive Google queriers (not a word? whatever...) who harbour an interest in the intricacies of Take Permits to be enlightened by your all-illuminating insight?

8:09 PM  
Anonymous Anonymous said...

uh, she doesn't want to get dooced.


6:22 AM  
Blogger Megan said...

I'm trying to delay the day that I'm fired for this blog, since I'm writing about controversies in my own field.

What Richard said.

8:18 AM  
Anonymous Müig said...

"Dooced". Wasn't aware of the word (thanks, Urban Dictionary) . I like it. (Enjoyed this post quite a bit, BTW.)

9:24 AM  
Blogger Dizzy said...

Wow - you made agency law funny. Good post.

3:16 PM  
Blogger Ed said...


"Currently, officials don't know which levees in the Valley even meet a minimal 100-year level of flood protection."

So, no one even knows if there is a problem, but they are willing to wreck the real estate and development market just in case.


8:33 PM  
Blogger ScottM said...

Thanks for expanding-- I didn't know how rare arbitrary and capricious typically are. It sounds like we've hit a low point. I hope competent management of some flavor intervenes soon.

4:00 PM  

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