The Delta smelt and Sacramento River settlement contracts

From the Pacific Legal Foundation’s blog, PLF on the ESA, this commentary/analysis:

When it comes to the threatened delta smelt species, most of the attention has focused on the pumps that export water from northern California southward and the extent to which pumping should be restricted for the benefit of the smelt. Litigation in the Eastern District of California led to the invalidation of a 2005 biological opinion due the BiOp’s inadequate consideration of how coordinated state and federal water operations would affect the smelt.

What has largely gone unnoticed in that same litigation, however, are the claims relating to water deliveries that occur upstream of the pumping. Earthjustice, Natural Resources Defense Council, and other environmental organizations argue that the Bureau of Reclamation has unlawfully executed and is illegally implementing 28 long-term Sacramento River settlement renewal contracts because it failed to engage in Endangered Species Act Section 7 consultations for these contracts.

The story behind these settlement contracts is complex, but the main thing to understand is that Reclamation needed to enter into a settlement with Sacramento River water users if it was going to satisfy the needs of the federal Central Valley Project and avoid litigation. Judge Oliver Wanger, who is overseeing the current delta smelt litigation, has noted that the United States and water users entered into the “Settlement Contracts” in order to “avoid conflict while preserving the right of either party in any subsequent water right litigation.”

Read more from the Pacific Legal Foundation’s blog by clicking here.

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