July 14, 2016

New delta smelt lawsuit filed

By Damien M. Schiff Senior Attorney

Last week, a coalition of California Central Valley water districts sued the Bureau of Reclamation in the latest installment of the litigation wars over the delta smelt.*  The new lawsuit, filed in federal district court in Fresno, and coming on the heels of the Governor Brown administration’s announcement to release an additional annual 200,000 acre-feet of water for the smelt, challenges the Bureau’s recent issuance of an environmental impact statement purportedly assessing the effects that the smelt-inspired water cutbacks have had on the San Joaquin Valley.  Perhaps the most interesting claim concerns the Bureau’s “no action” alternative.  Environmental impact statements are supposed to explain the baseline or status quo of the area where the proposed project will occur.  The purpose of this “no action” scenario is to provide the agency and the public with a reference point to compare the project’s effects, and those of any alternatives to the project.  One would think that the obvious “no action” alternative here would be what the San Joaquin Valley looked like before the 2008-2009 water cutbacks were implemented.

But the Bureau chose a different path.  The agency adopted a “no action” scenario that looks remarkably like what has been going on for the last eight years, i.e., substantial water cutbacks.  The reason for this legerdemain is plain:  if the water cutbacks are considered part of the status quo, then the Bureau can ignore their impacts.  The agency also can shirk its obligation to propose meaningful mitigation measures for those impacts. Whatever one’s views of how to regulate the delta smelt, there is no excuse for federal agencies to be less than transparent with the public over the effects of federal projects.

*The Liberty Blog readers will recall the long-running Endangered Species Act litigation over the Fish and Wildlife Service’s 2008 biological opinion.  In those consolidated cases, PLF represented three Central Valley farmers hard-hit by the smelt-inspired water cutbacks. Unfortunately, the Ninth Circuit rejected PLF’s Commerce Clause and other arguments, and the Supreme Court declined to review those rejections.

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