With a House Republican loading political ammunition in a national fight over government science, Interior Department officials said Friday they would stand by the work of two scientists whose integrity was attacked recently by a federal judge overseeing the Delta water wars.
U.S. District Judge Oliver Wanger, in a lengthy and strongly worded assault Sept. 16, said the two scientists deliberately misled him when they urged him not to weaken new rules meant to help imperiled Delta smelt in wet years like this one.
He called one scientist, Jennifer Norris of the U.S. Fish and Wildlife Service, a "zealot" who is unwilling to change her opinion even in the face of changing facts and said she and Fred Feyrer of the U.S. Bureau of Reclamation had acted in bad faith.
He was critical because he said a fish and water issue originally presented as a lost opportunity came back in a new hearing as an extinction issue.
"The only inference that the court can draw is that it is an attempt to mislead and to deceive the court into accepting what is not only not the best available science, it's not science. There is speculation," according to a preliminary transcript of his comments.
The comments, made just weeks before Wanger is scheduled to retire from the bench to return to private law practice, have led to at least one call for congressional hearings and could provide ammunition to opponents of the Obama administration's environmental policies.
"We stand by the consistent and thorough findings by our scientists on these matters and their dedicated use of the best available science," Interior Department spokesman Adam Fetcher said.
Also on Friday, the Fish and Wildlife Service's regional director said in an internal email to employees obtained by Bay Area News Group that he approved the two scientists' court filings before they were submitted.
"As a professional biologist with over 30 years of experience in endangered species research and implementation of the Endangered Species Act, I want you all to know that I fully, 100%, stand behind the scientific integrity and credibility of Dr. Norris and Mr. Feyrer," wrote Ren Lohoefener, the service's regional director. "They are outstanding public servants and scientists."
The department declined to make Feyrer and Norris available because the lawsuit is ongoing.
The matter is a scandal, Rep. Devin Nunes, R-Visalia, wrote this week. Congress should hold hearings, he said, adding that the Obama administration's approach to California's water problems was reminiscent of Saddam Hussein's dictatorship.
Meanwhile, the judge himself said in an interview this week his comments were being blown out of proportion.
"What happened last week was nothing more than business as usual," Wanger said, adding later, "I do speak for effect sometimes because I'm a trial lawyer."
In 2007, Wanger ruled that regulations in place to protect Delta smelt from going extinct were not working and needed to be strengthened.
So when federal biologists rewrote the rules, they included a requirement that more water flow into San Francisco Bay during the fall months of wet years. The thinking is that water supplies are so heavily used that by fall, even in wet years, much of the estuary is, in effect, in a drought.
Last winter and spring were wet, and the pumps that deliver water from the Delta to parts of the Bay Area, the San Joaquin Valley and Southern California are on pace to break records for water deliveries. But the new fall restriction could cost water users nearly a million acre-feet of water.
So water agencies sued to block the rule.
Wanger supported the regulators' idea in concept but also ruled that the environment would get nearly as much benefit at a lower cost to water users if he weakened it somewhat.
The federal government appealed that ruling and in asking Wanger to postpone his plan until the appeal was complete, the scientists argued that his plan would harm the fish.
Wanger said that until that time, the scientists had testified that weakening the rule would only represent a lost opportunity to help Delta smelt, "but nobody said that it would extinguish the species or that it would cause irreparable harm," Wanger said.
"Now, they come in and say, 'If you don't do this, it's going to extinguish the species,' " Wanger said.