Weighing water


Updated 10-19-2011

For the past 20 years, U.S. District Court Judge Oliver Wanger was a chief arbiter of many California water disputes, parceling water to farmers, urbanites and sensitive fish species.

Appointed in 1991 by President George H. W. Bush, Wanger made more than 90 decisions in regard to California's water before stepping down Sept. 29 at the age of 70. The judge cited his average 1,200 case load and family obligations as reasons for his leave. Two remaining judges in the state's Eastern District will share Wanger's remaining work. It is unclear who will rule primarily on his water-focused domain however, and the loss of the judge, who culled from state and federal water rules and science to better assess the validity of expert witnesses, could impact future decisions in a legacy of key rulings.

Wanger's analyses were thorough—likened to scientific papers for rulings hundreds of pages long, each delving into the detailed underpinnings of science and technicality. Wanger was also known to consult court-appointed experts and rely on five law clerks. "Law and science are converging as our society becomes increasingly technological and as knowledge becomes more available. This means that … courts are to become gatekeepers to differentiate between what is called junk science and reliable science," he was quoted saying in a L.A. Times article.

The longtime water regulator's courtroom served as a battleground for many of the state's most controversial water wars, including a long series of lawsuits and appeals regarding water pumps that funnel millions of gallons of water through the Sacramento-San Joaquin Delta, which is used by farmers in California's Central Valley.

One of Wanger's most publicized, ongoing cases involved the powerful Westlands water district, which sued the government over pumping restrictions protecting fish, limiting farmers' access to precious irrigation water from the Delta. The Delta is the heart of most of the Central Valley's irrigation system, but its water is equally sought after by environmentalists to protect salmon and smelt populations and cities in the state's southerly reaches. Delta water serves 4.5 million acres of farmland in the San Joaquin Valley, and 23 million Los Angeles and San Diego homes and businesses, among others.

And all the while, Wanger has had the final say in how that water was parceled out. In early 2002, the judge approved major water restrictions from the U.S. Fish and Wildlife Service aimed at protecting salmon.

He ruled in favor of the environmental group Natural Resources Defense Council in 2007, dismissing a 2005 U.S. Fish and Wildlife Service biological opinion stating smelt and other fish species would not be harmed with additional water pumping. The order limited times the pumps could be turned on from late December until June for spawning season, enough to reduce water pumped from the Delta by a quarter.

In one of his last rulings, Wanger shot down irrigation districts that wanted to stop commercial salmon fishing off Oregon and California coasts in hopes that salmon populations would recover in the Central Valley. Those pushing for the fishing halt hoped more salmon returning to the San Joaquin River would allow the San Joaquin River Group Authority to keep more water for agriculture, rather than releasing it to aid salmon migration on the river.

Some have suggested he went beyond his responsibilities at times, especially with recent rulings in 2009 and 2010 where he suggested Endangered Species Act protection should be considered under the National Environmental Policy Act, potentially placing them at odds with one another. Yet his two decades of decision making resounds in some of the largest water issues ailing the state.

As a result, he's a lonely Californian: "I feel I don't have many friends. That is a fact. Every constituency in these cases finds a reason to not like what I do," Wanger said. Yet even those he's ruled against respect him immensely, reports the Contra Costa Times:

"He's been the epitome of a non-activist judge," said Tom Birmingham, general manager of the Westlands Water District. "There have been many times where he's said, 'I don't like this result, but it's what the law requires.'"

Wanger will continue to work as a trial lawyer for a private law firm and teach at a local law school.

Kimberly Hirai is an intern at High Country News.

Image courtesy Flickr user julia fredenburg.

Image of Judge Wanger courtesy United States District Court Eastern District of California.

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