ARBITRARY, capricious and contrary to law." That's what federal judge Oliver Wanger of Sacramento, in rulings on May 25 and Aug. 31, called state and federal agency plans to pump yet more water out of the state's already-overpumped giant northern delta.

Contrary enough to law that the judge not only put a complete stop to those plans but ordered such a massive cut in delta pumping that the entire statewide the water supply is now decreasing by somewhere between 14 percent and 35 percent, with the Santa Clara Valley losing as much as 50 percent—a loss that local water officials worry will deplete "our reserves for a major catastrophe."

Noting that the delta's 738,000 acres make it the largest estuary on the West Coast, and that California's State Water Project, which pumps and distributes delta water, is "among the world's largest water diversion projects," Judge Wanger ruled that it can no longer be tapped for 5 million acres of farmland irrigation and drinking water for 23 million people. He demanded that the federal and state agencies in charge stop killing off the delta smelt, the once-teeming tiny red fish whose population serves as an aqueous version of the canary in the coal mine, and which is now nearly extinct.

But the story of problems with the State Water Project runs much deeper. Behind the ruling, and the lawsuit that triggered it, is a classic case of early-21st-century bureaucratic blindness.

Reckless Policy

For years, the state of California overtapped rivers from other states, until officials were forced into an agreement to stop in 2003. At that point, the State Water Project, needing to fill its 600-mile system of dams, storage reservoirs, holding tanks and pipelines, simply turned to the delta. And with federal agencies looking the other way, it pumped until the area's islands began sinking, salt water began intruding, pollution increased, water quality dropped and fish began dying in droves.

In 2005, a number of sport fishing groups teamed up with the National Resources Defense Council to take legal action, and virtually every state and federal agency involved weighed in to stop them.

"Separate opposition briefs were filed by the Federal Defendants, the Department of Water Resources, the State Water Contractors ... and the California Farm Bureau," noted the judge. And that's in addition to the bureaucracies they represent—specifically, the federal Bureau of Reclamation and the U.S. Fish and Wildlife Service.

It's the arbitrariness of the Fish and Wildlife Service—which in 2005 issued a "Biological Opinion," that everything was just fine with the fish and with the delta, that made up the core of the case. The agency claimed that no one can really tell whether the delta smelt or other fish are reaching extinction because "not enough is known about the species" due to their two-year lifespan, which keeps them from living long enough to study. Therefore, the agency decided, they're in no jeopardy. Even if they were in jeopardy, officials said, the system "salvages" the fish—that is, stores them in big sieves for later release. The fact that delta smelt have, in fact, been studied and counted for decades, are at the lowest count ever and suffer a 100 percent death rate during "salvaging" was treated as irrelevant details that could be worked out at some time or other, said the Service, in the bureaucratic process.

Wanger was having none of it. Although a process of meetings and recommendations is required by law, nothing in the U.S. Fish and Wildlife Service's policy mandated such checks on its decision-making. Not good enough, he ordered: "The Endangered Species Act requires more."

More? OK, then, we'll cut pumping by 7 percent, state water agencies offered. Instead, the judge ordered it cut severely. He also hinted that officials would have no luck appealing previous decisions to the Ninth Circuit. This, he appeared to say, stops here.

Mounting Panic At the SCVWD

Gov. Schwarzenegger has called for a double-topic special legislative session to deal with both statewide health-care reform and now, as of Wanger's ruling, the immediate water supply crisis. Schwarzenegger, who saw this coming long ago, has been lobbying for a $5.9 billion plan for a statewide water infrastructure expansion plan which would, among other improvements, build two new reservoirs (with $1 billion solely dedicated to shoring up the delta). He's also appointed a Blue Ribbon Task Force on saving the delta's water quality, sinking islands, challenged levees and dying fish. Its recommendations are due in November.

For now, though, Santa Clara Valley Water District and other agencies are at least mutedly panicked. Initially responding with relatively calm talk of "a substantial impact" and uncertainty for our supply," SCVWD officials such as water board chairman Tony Estremera, just a couple weeks later, are talking about an "urgent need to find solutions" and "catastrophic impacts on the county."

And for good reason. The water district not only oversees five watersheds, 10 reservoirs and around 800 miles of streams and basins, but also buys water wholesale and sells it to smaller districts. The economic impact of a shortfall would be enormous.

In addition to the potential economic downturn, and 1.7 million people who depend on an uninterrupted delta water supply, there's the effect on wildlife. With a 50 percent delta water cut, groundwater recharge will decrease up to 35 percent, and recharge ponds and streams will begin drying up. Say a possible goodbye, notes the SCVWD, to steelhead trout, California red-legged frogs and western pond turtles. And when aquifers dry out, soil physically constricts. The last time local aquifers ran dry, in the early 20th century's Santa Clara Valley building boom, downtown San Jose sank 12 feet. Hello, folks—welcome to our second-floor lobby.

So far, the water district has massaged residents into a 7 percent cut in water use in a remarkably short time. How, though, will the agency, and the valley's water supply, survive?

"We'll make it through," says SCVWD spokeswoman Susan Siravo. "We're fortunate to have a lot of storage, not only in our 10 local reservoirs, but we also have water stored in Kern County that we'll be bringing down."

"At the same time, though," Siravo admits, "there's only a finite amount of water out there to get."

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