DELTA WATER ISSUE NEEDS REAL SOLUTION.

Byline: BILL ROBINSON and RALPH E. SHAFFER

IGNORING environmental-protection laws has become a standard response from developers and government agencies who prefer profits and an increased tax base to preservation of an endangered species.

But this time, a federal judge in Fresno refused to roll over. As a result, California faces a Katrina-like calamity of our own making.

U.S. District Judge Oliver Wanger last week ordered a major decrease -- perhaps as much as one-third -- in the amount of water pumped out of the Sacramento/San Joaquin Delta. His ruling came in a suit involving the near-extinction of the delta smelt, whose sole habitat is the delta.

Wanger's decision threatens California's economy. If the ruling stands, the state project that delivers water to 25 million Californians will be significantly crippled in the near future. But the judge had no option in light of the law and the failure of government agencies to properly respond.

A flawed biological report presented earlier this year to Wanger by the U.S. Fish and Wildlife Service and the California Department of Fish and Game might have caused this draconian ruling. In rejecting that report, Wanger characterized it as "arbitrary, capricious and contrary to law," and ordered the agencies back to the drawing boards. Their tardy report, which made necessary the judge's ruling, should have been finished as much as a year ago.

Another overdue review, from the state Department of Water Resources, is the critical Delta Risk Management Study. The department claims it is finished, but insiders hint that the Governor's Office embargoed the report for political reasons.

Nor is the Legislature above reproach in the matter of delta water delivery and environmental protection. Legislators have deliberately delayed action on bills vital to the delta's future.

Such legislative, administrative and gubernatorial complacency must end. Incentives for fixing the state's plumbing should not come from court rulings. Judges, experts in interpretation of the law, are poorly equipped to analyze complex scientific questions or to substitute their judgment for the timely work product of citizen advisory committees composed of experts in the field.

Wanger's decision should be appealed. Unfortunately, new evidence is rarely accepted by higher courts. A more desirable choice would be to remand back to the trial level for a more thorough rehearing. Our water supply and economy must be protected from this legal morass.

State pumps may not be the real culprits in the decline of the delta smelt. Other, more significant triggers for the decline could be water chemical toxicity and endocrine disruption. Poor water quality has been proven to actually change the sex of fish in many parts of the world.

Other explanations exist for the smelt's near disappearance. Invasive foreign species and plants threaten native flora and fauna. Open-water species, such as the smelt, may be in decline because they are no longer robust enough to survive in their natural competitive environment.

Additionally, the avalanche of recent, locally controlled land-use rezoning has severely impacted delta species. Irresponsible development and the general trend toward urbanization of the delta have so compromised the smelt habitat that the future viability of the species is in doubt. Extinction may be inevitable.

Land-use control, the province of city councils and towns, was ignored by the court. Concerned citizens of all stripes must force bureaucrats to do their work in a more timely fashion.