Ominous development for San Joaquin Valley water users

This morning, the Ninth Circuit Court of Appeals agreed to rehear en banc the appeal in Natural Resources Defense Council v. Salazar.  In this case, the environmentalists challenge the failure of the Bureau of Reclamation to consult with the United States Fish and Wildlife Service and National Marine Fisheries Service when the Bureau renewed a number of water service contracts for districts in California’s San Joaquin Valley.  The original panel decision threw out some of the environmentalist claims on standing grounds, and the rest of the claims on the merits.  With respect to the merits, the panel majority held that the Bureau had no obligation to consult with the Services on the contract renewals’ impacts to various protected species under the Endangered Species Act, because the Bureau has no discretion to condition those renewals on species-favorable terms.  That the Ninth Circuit has agreed to rehear the case in June in Seattle is a strong indication that many members of the Court believe the panel decision to have been in error.  And if the Ninth Circuit holds that the contract renewal is subject to Section 7 consultation, one can expect a controversy not too different from what has erupted over the Delta smelt.