Even In Drought, Water Must Be Managed To Protect Delta Fish


The Ninth Circuit recently issued two controversial opinions which uphold efforts to protect the delta smelt, a small fish endemic to the Sacramento-San Joaquin delta that is protected under the state and federal Endangered Species Acts, despite potential significant impacts on water deliveries to urban and agricultural areas.

The first is San Luis & Delta-Mendota Water Authority v. Jewell, which reversed the district court and upheld a 2008 biological opinion issued by the U.S. Fish and Wildlife Service (USFWS) finding that the operation of the state and federal water projects are jeopardizing the delta smelt’s continued existence. The court acknowledged the high stakes involved and the enormous potential consequences of its decision, but explained that it is not the role of the courts to substitute their judgment for that of the agency charged with administering the law or to go beyond the record that was before the agency.  Rather, a reviewing court must defer to an agency’s scientific determinations unless they are arbitrary and capricious or otherwise not in accordance with law.

Employing this standard, the court found the USFWS’ choices of analytical tools and scientific models, assumptions and determinations in its 2008 opinion were not arbitrary and capricious and found the USFWS’ conclusions were supported by substantial evidence.  One key finding by the court was that the USFWS’ biological opinion need not consider the economic impact of the reasonable and prudent alternative on people who would receive the water if it was not left in the delta for the smelt.

In the second decision, NRDC v. Jewell, an en banc panel reversed the district court’s judgment and found that the federal Bureau of Reclamation must consult with the USFWS under the Endangered Species Act before renewing several contracts that provided for water deliveries from the delta because the deliveries could adversely affect the endangered delta smelt.  The en banc panel found the Bureau retained some discretion under the terms of the contracts to either not renew them, or to change the pricing or timing of water deliveries. Since the agency has some discretion to take actions to protect the delta smelt, it must engage in consultation with the USFWS before renewing the contracts.

These opinions come at a time when California is experiencing one of the most severe droughts on record and water supplies are at record lows. Statewide campaigns encourage Californians to minimize water use and to conserve water whenever possible. In such times, regulatory protections for species and the environment, such as those imposed under the state and federal Endangered Species Acts, take center stage in the debate over how our precious and limited resources such as water should be managed and allocated. These two opinions suggest the Ninth Circuit will not countenance the dismissal or dismantling of regulatory protections for the environment and endangered species as a solution for California’s water woes.  

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