Water Contractors Win Latest Round in California’s ESA-Water Wars

July 19, 2012, by Dawn McIntosh

In the latest round of the much larger legal battle over the impacts of water projects on protected fish in the California Delta, the Ninth Circuit Court of Appeals, in a 2 to 1 decision, rejected a challenge brought by the Natural Resources Defense Council (“NRDC”) to the renewal of 41 long-term Central Valley Project  water contracts by the Bureau of Reclamation (“Bureau”).  See NRDC v. Salazar, 2012 U.S. App. LEXIS 14614 (2012).  The NRDC had argued that the renewal of the contracts would violate the Endangered Species Act (“ESA”) because the water deliveries under the contracts would harm the delta smelt, a small fish endemic to the Sacramento-San Joaquin delta that is listed as endangered under the ESA.  The Court concluded that the NRDC did not have standing, or legal authority, to challenge the two types of contracts because 1) the Bureau had no discretion over the renewal of the Settlement Contracts, so the protections of the ESA were not implicated by those renewals and 2) plaintiffs failed to establish a causal connection between the alleged injury, harm to the delta smelt, and the Bureau’s action in renewing the Delta-Mendota Canal contracts because these contracts contained a shortage provision authorizing the Bureau to take any actions necessary to meet its obligations under ESA, including curtailing water deliveries.

Prior to renewal of these contracts in 2004 and 2005, the Bureau consulted with the U.S. Fish and Wildlife Service under the ESA.  The contract renewals proceeded after the Fish and Wildlife Service issued biological opinions in 2004 and 2005 finding that the contracts would not adversely affect the delta smelt.  After the 2005 biological opinion was challenged in federal court and found to be unlawful, it was superseded by another biological opinion issued in 2008 which found that the water contracts are likely to jeopardize the continued existence of the delta smelt.  The validity of the 2008 biological opinion is currently being challenged in federal court, but if this 2008 opinion is upheld, the Bureau may be required to revise the terms of the water contracts it has already renewed under the shortage provision to protect the fish.  Thus, the ultimate victor - the fish or the water contractors - has yet to be determined.

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