Author: Brandon Middleton
When it comes to the delta smelt and environmental litigation, most attention is paid to Judge Wanger's courtroom in Fresno, and for good reason. But the Ninth Circuit Court of Appeals will also weigh in on the delta smelt saga over the next year by hearing two appeals which could be game changers in what Judge Wanger has described as "the continuing war over protection of the delta smelt."
There is of course PLF's Commerce Clause appeal, where we represent almond and pistachio growers in a challenge to the constitutionality of delta smelt-based water cutbacks. Our position, stated briefly, is that the federal government has no Commerce Clause authority over the delta smelt because the smelt is not a commercial fish. For prior coverage of PLF's Commerce Clause appeal, go here and here.
There is also a relatively unnoticed delta smelt appeal being maintained by the Natural Resources Defense Council and other environmental organizations. NRDC v. Salazar concerns the renewal of water supply contracts between the United States Bureau of Reclamation and water districts throughout California. Contract renewals occur every 25 to 40 years and are important because they serve as the foundation for an adequate supply for millions of Californians. Without the contracts in place, it would be much more difficult for Reclamation to manage its Central Valley Project water supply responsibilities, and water districts would certainly be hamstrung in ensuring that water rights holders receive the water they deserve.
Yet NRDC is seeking to add a lengthy and expensive bureaucracy to the contract renewal process. According to the organization, Reclamation should be required to consider the effects contract renewals have on the delta smelt through what is known as Section 7 consultation under the Endangered Species Act. Section 7 consultation, however, is not a simple step; it is a complex ordeal that would ultimately result in the renewal contracts providing more water for the delta smelt, and less for humans.
So, on top of the water cutbacks we've seen in Southern California and the San Joaquin Valley due to the delta smelt in recent years, even more delta smelt cutbacks are necessary in these regions, as well as Northern California–at least according to NRDC. To be clear, if NRDC's appeal is successful, water users throughout the state will lose more water to the delta smelt and pay more for the remaining water they receive. The delta smelt will have thus crippled the water supply for the entire state of California, and this species' harm will no longer be felt only in Southern California.
Fortunately, California water districts are standing up to NRDC, having filed briefs in opposition to NRDC's appeal earlier this month. And it should be noted that the Obama administration is also opposed to NRDC's effort to compromise Reclamation's ability to supply water to the Golden State.
PLF has likewise filed a brief which takes on NRDC's delta smelt fixation, available here. Our brief was filed in support of the California water districts in the case and asks the Ninth Circuit to reject NRDC's attempt to expand delta smelt water cutbacks.
This is definitely an important case, and we're hoping that the Ninth Circuit confirms that contract renewals are not subject to Section 7 consultation under the Endangered Species Act. Otherwise, you can be sure that the delta smelt's power over California water users will only grow stronger.