April 9, 2013

Delta smelt breaking news: government wins partial remand extension

By Damien M. Schiff Senior Attorney

This morning, Judge Lawrence O’Neill of the Eastern District of California (who now presides over the Consolidated Delta Smelt and Consolidated Salmonid Cases following Judge Oliver Wanger’s retirement last year) partially granted the federal government’s request for more time to complete new biological opinions governing the operation of the Central Valley and State Water Projects.  The court ruled that, in light of changed circumstances, the original remand schedule was inequitable and that the public interest would be served by allowing the feds, along with water users and the environmental community, to pursue the Collaborative Science and Adaptive Management Process (CSAMP).  Nevertheless, the court was concerned that granting the requested three-year extension (which the water users supported but the environmental intervenors opposed) would be imprudent; consequently, the court thirded the baby, as it were, and extended the current deadlines by one year.  The court also left open the possibility of giving the feds the full three years if justified.

This is an important win for the feds as well as for water users.  Notably, the feds back in January lost their initial attempt to extend the remand schedule, Judge O’Neill then ruling that the government had failed adequately to show that circumstances had changed since the adoption of the original remand schedule (which the feds had supported).  The difference between then and now, according to the court’s ruling today, is that the feds have now established that circumstances have changed:  when the original schedule was adopted, the feds and the water users held a dim view of the CSAMP, but now those groups believe that CSAMP is the best way to produce solid science to support the new biological opinions, as well as to reduce the likelihood of litigation over the new biological opinions.

In today’s decision, Judge O’Neill ordered the parties to provide a progress report by February, 2014.  At that time, the court will decide whether the feds merit more time to complete the remand ordered by Judge Wanger.

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