delta smelt litigation update
Earlier this week in the federal delta smelt litigation, Judge Wanger declined to invalidate several water contracts that affect the use of water in and around the Sacramento-San Joaquin Delta. Environmentalists had sued based on the alleged negative impact the contractual water deliveries have on the endangered delta smelt. Judge Wanger declined to hear this request, noting that the U.S. Bureau of Reclamation could already withhold water deliveries under the contracts as necessary for Endangered Species Act purposes.
It remains to be seen whether and to what extent the court will enjoin the performance of water contracts that deal with water deliveries in the northern section of the delta. Judge Wanger has asked for further evidence "on the full nature and extent of [these contractors'] senior water rights." The court appears to be concerned with what percentage of the water deliveries under these contracts are non-discretionary due to senior water rights, as "[t]hese senior water rights are beyond the reach of the ESA," and what percentage of the water deliveries are a result of discretionary contract negotiations on the part of Reclamation. Deliveries under the latter may be subject to further ESA restrictions to benefit the delta smelt.
The decision is available here.
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