Water Education Foundation
This is just one post in the Delta Issues Category
Click here to view all posts

Judge Wanger rules that Bureau of Reclamation violated NEPA in accepting and implementing U.S. Fish & Wildlife Service’s Biological Opinion on Delta smelt

Posted by: Maven on December 9, 2009 at 8:47 am

From Brian D. Poulsen of Somach Simmons & Dunn:

“On November 13, 2009, Judge Oliver Wanger of the United States District Court, Eastern District of California, invalidated the Bureau of Reclamation’s (Reclamation) decision to accept and implement the United States Fish & Wildlife Service’s (Service) December 15, 2008 biological opinion (BiOp) addressing the impact of coordinated operations of the Central Valley Project (CVP) and State Water Project (SWP) (collectively, Projects) on the threatened delta smelt, and its corresponding Reasonable and Prudent Alternative (RPA). The Court ruled that Reclamation failed to comply with the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (NEPA), by provisionally accepting and implementing the BiOp and RPA without first completing an environmental impact statement (EIS) to consider significant effects on the human environment.

Background

In 2005, the Service issued a biological opinion on the effects of the coordinated operations of the Projects on the threatened delta smelt, wherein it found that the operations of the Projects would not jeopardize the continued existence of the smelt. Environmental groups subsequently challenged that opinion. On May 25, 2007, Judge Wanger ruled that the opinion failed to analyze significant information, including the smelt’s total population numbers, and that such a failing rendered the Service’s “no jeopardy” finding arbitrary, capricious, and contrary to law. Consequently, Judge Wanger ordered the Service to conduct a new biological opinion. Pursuant to that order, the Service issued the BiOp at issue in this litigation on December 15, 2009. That BiOp found that planned coordinated Project operations would jeopardize the continued existence of the delta smelt and/or adversely modify its critical habitat. … “


Read more of this Environmental Law & Policy Alert from Somach Simmons & Dunn by clicking here.

December 9, 2009 · Filed Under Delta Issues, Wildlife & Endangered Species

Comments

Leave a Reply