April 16, 2014

Another win for the Delta smelt

By Damien M. Schiff Senior Attorney

Just minutes ago, the Ninth Circuit Court of Appeals issued its en banc unanimous decision in NRDC v. Jewell holding that the Bureau of Reclamation violated the Endangered Species Act in renewing several dozen water contracts in connection with the Central Valley Project.  The Court, in an opinion authored by conservative GOP-appointed Judge Milan Smith, ruled that (1) the environmentalist plaintiffs had standing to sue the Bureau, (2) the challenge was not moot, and (3) on the merits that, “in renewing the Settlement Contracts, the Bureau retained ‘some discretion’ to act in a manner that would benefit the delta smelt.”  (Pacific Legal Foundation had filed an amicus brief arguing that the Bureau did not retain sufficient discretion to trigger the obligation to consult with the Fish & Wildlife Service on the impacts to the Delta smelt of the water contract renewals.).  The Court reasoned that the Bureau still has discretion to dictate price and timing, factors which could be used to help the smelt, e.g., pricier water means less will be used means more for the smelt, or water made available only at certain times of the year when the smelt’s needs are less pressing.

Bottom line is that this decision will simply spread the pain of Delta smelt mitigation to more farmers and others dependent on Central Valley Project water.

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