An eleven-judge panel of the U.S. Ninth Circuit Court of Appeals today unanimously ruled that the federal Bureau of Reclamation was required to consult with the U.S. Fish and Wildlife Service regarding long-term California water contracts that would impact the endangered delta smelt. The court concluded that the Bureau’s renewal of several dozen water supply contracts that divert large quantities of water from the Bay-Delta violated the Endangered Species Act.
The court sided with Earthjustice and its clients Natural Resources Defense Council (NRDC), California Trout, San Francisco Baykeeper, Friends of the River and The Bay Institute.
The following is a statement from Trent Orr, Earthjustice staff attorney:
“Today’s decision strongly reinforces the requirement of the Endangered Species Act that if, the Bureau of Reclamation has any discretion in negotiating long-term water contracts to benefit a listed species, the agency must exercise that discretion to ensure that the contracts do not harm the species. The court found that the Bureau does have such discretion. This ruling provides an opportunity to revisit these 25- and 40-year contracts and include provisions that encourage water conservation and make realistic allotments of water to protect adequate in-stream flows to restore the health of the entire Delta ecosystem.”
BACKGROUND: In 2005, Earthjustice filed a lawsuit challenging a George W. Bush-era biological opinion that stated the operations of the federal and state water projects in California would have no effect on the delta smelt. At that time, the Bureau of Reclamation, which runs the Central Valley Project, was in the process of renewing long-term water contracts, based on the challenged biological opinion’s conclusion that the water projects posed no harm to the delta smelt. A United States District Judge invalidated that biological opinion as legally flawed and scientifically unsound. A new biological opinion on the delta smelt was approved in 2008 that found that the operations of the federal and state water project would harm the imperiled smelt and the Delta ecosystem it relies upon and required that the projects’ operations be modified to avoid that harm.
In 2008, Earthjustice challenged the largest water contracts that were renewed based on the invalidated biological opinion. The challenged contracts account for over 85% of the total amount of water allocated by the renewed long-term contracts. The federal district court ruled that the Bureau had no duty to comply with the Endangered Species Act in renewing those contracts, but today the 9th Circuit overturned that ruling.
Today’s ruling will not alter operations of the Central Valley Project or State Water Project this year, but it will provide a sorely needed reopening of the contracts to revisit their terms and make sure that they are amended as necessary to make sure that they do not jeopardize the survival and recovery of the delta smelt.