November 11, 2015

More Delta wrangling

By Damien M. Schiff Senior Attorney

Earlier this week, a coalition of “corporate”** environmental groups sought leave to file a supplemental complaint in NRDC v. Jewell, to challenge the Bureau of Reclamation’s water allocations to Sacramento River water users.  The nub of this case—which has been going on for a decade—is the environmentalists’ objections to the Bureau’s renewal of dozens of water contracts without first determining if the contracted water deliveries would hurt the delta smelt.

Last year, the Ninth Circuit ruled in the environmentalists’ favor.  The appellate court remanded the case to allow the Bureau to consult with the Fish and Wildlife Service to analyze whether the contract renewal would hurt the smelt and, if so, to determine appropriate mitigation.

Now the environmentalists seek to sue the Bureau over its failure to consult with respect to protected salmon species.  They contend that the Bureau should have done so as early as 2009, when the National Marine Fisheries Service determined that the Bureau’s delivery of Delta water to the San Joaquin Valley and Southern California would harm the same protected salmon populations.  And the reasons supporting an analysis with respect to the water deliveries south of the Delta, argue the environmentalists, apply mutatis mutandis to the Bureau’s water deliveries north of the Delta.

The environmentalists also contend that, since 2014, the Bureau’s water allocation decisions—as well as consequent private-party water diversions—have caused the “take” of thousands of individual salmon, thus violating the Endangered Species Act. They speculate that the Bureau’s cold water releases from Shasta Dam resulted in lethally high temperature levels.

Given the adverse precedents of the last decade, the Bureau and its water-user allies may have an uphill battle resisting the environmentalists’ latest claims.  Nevertheless, there remains something elementally unjust about demanding that water be used to help the environment when that water would not have been available for any use in the absence of the very same reclamation projects which the environmentalists love to disparage.

**The environmentalists’ press release describes the recipients of the challenged Bureau water releases as “corporate agriculture.”  The lead plaintiff, Natural Resources Defense Council, is—not surprisingly—incorporated, as I suspect most if not all of the other plaintiffs are.  So whether the adjective “corporate” is complimentary or pejorative, surely its import is not dependent on the noun it modifies.

 

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