January 31, 2013

Delta smelt remand extension denied

By Damien M. Schiff Senior Attorney

Yesterday, Judge Lawrence O’Neill, Judge Wanger’s replacement in the Delta smelt cases, denied the joint motion of the feds and the California Department of Water Resources to extend by several years the existing deadline for these agencies to produce a new Delta smelt biological opinion to govern the Central Valley and State Water Projects.  (The plaintiff water users, including PLF’s clients, had supported the extension, whereas the environmentalist intervenors had opposed it).  The agencies had argued that the extension was necessary to allow them to use the results of a “collaborative science and adaptive management program,” as well as the Bay Delta Conservation Plan, in the production of the new biological opinion.

Judge O’Neill, however, rejected the request, determining that the agencies had failed to establish that either of these factors represent changed circumstances, as opposed to the governments simply changing their positions on options that were available but were declined when the original remand order was issued.

Nevertheless, the court acknowledged that, in theory, these factors could justify an extension, but more proof was needed to make that determination.  Accordingly, the court ordered the parties to submit a supplemental brief providing that proof.  The court also hinted that the only way an extension would be granted would be if the environmentalists were allowed to participate in the collaborative science-gathering process.

FYI:  The court issued a substantively identical order in the Salmonid cases.

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