May 26, 2009

delta smelt biological opinion: preliminary injunction granted

By Damien M. Schiff Senior Attorney

This past Friday, Judge Wanger heard arguments on Westlands Water District and San Luis & Delta-Mendota Water Authority (Westlands) motion for a preliminary injunction of Component 2 of the delta smelt biop's reasonable and prudent alternative. Component 2 will be in effect until June 30 or until the water temperature of Clifton Court Forebay reaches 25 degrees Celsius, whichever occurs first. The goal of this component is to protect larval and juvenile delta smelt in the central and south delta from entrainment at the project pumps after spawning commences in March. Under Component 2, negative water flows must be between 1250 and 5000 cfs.

Shortly after arguments were presented, Judge Wanger announced his ruling from the bench. Although he declined to reach the merits of Westlands' ESA claims (failure to distinguish b/w non-discretionary and discretionary CVP operations; failure to analyze cumulative effects and other stressors on the delta smelt), Judge Wanger ruled in Westlands' favor on the claim that the FWS failed to comply with NEPA in issuing the biop. Westlands had claimed that FWS was required to prepare an environmental impact statement along with the biop, as the biop constitutes a "major Federal action[] significantly affecting the quality of the human environment."

As a result on the preliminary injunction, FWS is not required to prepare an EIS. But it may not impose the most restrictive flows under RPA Component 2 unless it justifies why that would be necessary to protect the smelt. Whatever FWS decides under Component 2, FWS must consider the harm of its decision; FWS must take into account "the harm being visited upon humans, the community and the environment."

So FWS may still impose the maximum-allowed restrictions under Component 2, but it may not solely consider the well-being of the delta smelt in its decision.

Articles on the decision here (Fresno Bee) and here (Central Valley Business Times).

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