November 13, 2009

Feds' delta smelt restrictions violate NEPA; relief for San Joaquin Valley on the way?

By Feds' delta smelt restrictions violate NEPA; relief for San Joaquin Valley on the way?

Author: Brandon Middleton

While the U.S. Fish and Wildlife Service authored the controversial delta smelt biological opinion, the Bureau of Reclamation is the federal agency responsible for its implementation and severe restriction of water deliveries.

In implementing the delta smelt biop, Reclamation failed to prepare a critical Environmental Impact Statement. Because of this failure, a federal district court ruled today that Reclamation violated the National Environmental Policy Act, resulting in a significant victory for those who have seen firsthand the biop's catastrophic environmental and economic consequences.  The decision is available here.

According to the court, Reclamation could not simply stand idle as it chose to implement the Fish and Wildlife Service's restrictive "Reasonable and Prudent Alternative":

FWS proposed an RPA that called for actions that commit federal water to smelt protection.  Reclamation was not 'bound' to accept the proposed RPA, but did so.  Resulting operations reduced 2008-09 water deliveries by several hundred thousand acre-feet.  In this case, actions speak louder than words.

Although the court's decision is a crucial step towards regulatory sanity, the extent to which it will result in more water for the San Joaquin Valley is not yet clear. NEPA is a procedural statute, meaning that Reclamation's eventual compliance with the law will not automatically return things to where they were before the delta smelt biop was issued.

That being said, the Ninth Circuit has noted that NEPA creates "a democratic decisionmaking structure that . . . is almost certain to affect the agency's substantive decisions." Oregon Natural Desert Ass'n v. Bureau of Land Mgt., 531 F.3d 1114, 1120 (9th Cir. 2008). In other words, Reclamation will be forced to reconsider whether delta smelt water cutbacks are indeed worth the human environmental costs. That a federal agency must more fully address the human impacts of the delta smelt restrictions is no small victory.

The exact meaning and consequences of today's decision will become more clear when the court conducts a remedies hearing on November 24.

Update: The hearing has been rescheduled to Thursday, Nov. 19, at 9:30AM.

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