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Analysis on ruling that Fish and Wildlife Service required to justify pumping restrictions in the Delta

Posted by: Maven on June 10, 2009 at 7:44 am

From Jacqueline L. McDonald of Somach Simmons & Dunn:

On May 29, 2009, in the United States Eastern District Court case of San Luis & Delta-Mendota Water Authority, et al v. Salazar (Case No. 1:09-CV-00407), the United States Fish and Wildlife Service (Service) was enjoined from restricting pumping operations in the Delta without justification and an explanation of why alternative, less severe restrictions would not adequately protect the delta smelt. The Court found that Plaintiffs San Luis & Delta-Mendota Water Authority and Westlands Water District (collectively “Westlands”) were reasonably likely to succeed on their claim that the Service violated the National Environmental Policy Act (NEPA) in failing to conduct environmental review before establishing pumping restrictions for the protection of delta smelt.

The Biological Opinion

In May 2007, in the related case of Natural Resources Defense Council v. Kempthorne (E.D. California, Case No. 1:05-CV-1207) (Kempthorne), the Eastern District Court invalidated the Service’s 2004 biological opinion that addressed impacts of the California Department of Water Resources (DWR) and the United States Bureau of Reclamation’s (Reclamation) joint operations of the State Water Project and Central Valley Project (collectively “Project”) on the delta smelt. The delta smelt is an aquatic species residing in the Delta that is listed as threatened under the federal Endangered Species Act (ESA). The Court ordered the Service to prepare a lawful biological opinion to ensure that the Project operations would not jeopardize the delta smelt in violation of the ESA. The Court held additional proceedings to impose interim remedies that would ensure that Project operations would not jeopardize the delta smelt while the Service prepared a new biological opinion. Due to the narrow considerations allowed by the ESA, the Court refused to hear any evidence related to the economic and environmental harm resulting from the proposed remedies.

Read more analysis, conclusions and possible implications from Jacqueline L. McDonald at Somach Simmons & Dunn by clicking here.

June 10, 2009 · Filed Under Delta Issues, Wildlife & Endangered Species

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