March 28, 2011

After feds increase water allocation, Judge Wanger suggests need for current judicial intervention in salmon litigation is "obviat[ed]"

By After feds increase water allocation, Judge Wanger suggests need for current judicial intervention in salmon litigation is "obviat[ed]"

Author: Brandon Middleton

Today, the federal government announced that 2011 the water supply allocation for south-of-Delta agricultural water service contractors would be increased to 65% of their contract total.  The federal government informed Judge Wanger of this announcement this afternoon in the salmon biological opinion litigation, where there are pending requests for a preliminary injunction and temporary restraining order of a pumping restriction which was set to go into effect April 1.  According to the federal government's court filing, "exports will not be constrained by National Marine Fisheries Services' Reasonable and Prudent Alternative Action IV.2.1 during April or May."

After receiving this filing, Judge Wanger issued the following order:

Federal Defendants have notified the Court that based on anticipated hydrologic conditions, RPA Action IV.2.1. will not be implemented this water year. This notice appears to moot the pending request for a preliminary injunction and restraining order to enjoin implementation of RPA action IV.2.1, obviating the need for judicial intervention. If any party disagrees, that party should immediately notify the Court. SO ORDERED.

Stay tuned.

Update: Late Monday afternoon, the federal government filed this document in the salmon biop litigation, attempting to clarify its filing from earlier Monday and indicating that Action IV.2.1 will be implemented on April 1.  The federal government has stated the following in its latest filing:

In response to the Court’s March 28, 2011 Minute Order (Doc. No. 618), Federal Defendants clarify that pursuant to the terms of NMFS’s Biological Opinion, NMFS’s reasonable and prudent alternative ("RPA") action IV.2.1 will take effect on April 1, 2011. As stated in the informational release, however, based on anticipated hydrologic conditions, the Bureau of Reclamation ("Reclamation") expects San Joaquin River flows at Vernalis to be above 21,750 cubic feet per second ("cfs") through the end of May. Therefore, while RPA action IV.2.1 will take effect on April 1, 2011, based on the currently anticipated hydrologic conditions, Reclamation does not presently anticipate that exports will be constrained by NMFS’s RPA action IV.2.1 during April or May.

Odd developments.  Let's see what happens over the next day or two. 

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