Background

The federal Central Valley Project (CVP) and California’s State Water Project (SWP) serve agricultural and municipal water users throughout California. Pumping facilities in the southern reaches of the San Francisco Bay Delta are key to the operation of both projects, which deliver water from the relatively wet areas of northern California to customers in central and southern California by conveying the water through the Delta. The protocol for the operation of the projects’ pumping facilities is laid out in a document known as the Operations Criteria and Plan (OCAP). As updated in 2004, the OCAP provides a detailed description of the coordinated operations of the CVP and SWP based on historical data dating back several years and serves as a starting point for planning project operations in the future. Under the federal Endangered Species Act (ESA), FWS must produce formal Biological Opinions analyzing the impact of OCAP implementation on protected species (including the delta smelt). In effect, the ESA authorizes FWS to require changes to the OCAP for the protection of the delta smelt and other federally listed species.

In 2005, FWS issued a Biological Opinion for OCAP, and concluded that CVP and SWP operations did not jeopardize delta smelt populations. However, that opinion was struck down by a federal judge following a lawsuit filed by environmentalists. FWS was ultimately ordered to revise the Biological Opinion. The court also severely restricted CVP and SWP pumping in the Delta pending the FWS’s completion of the new Biological Opinion. Those restrictions took effect in December 2007. In December 2008, FWS released a new Biological Opinion concluding that CVP and SWP operations would jeopardize the continued existence of endangered delta smelt. FWS further detailed a “reasonable and prudent alternative” to the proposed OCAP protocol that would, it claimed, protect the delta smelt and its habitat from the adverse effects of pumping operations. The “reasonable and prudent alternative” would restrict pump operations and limit deliveries of water to CVP and SWP contractors south of the Delta. The pumping restrictions further exacerbated water supply issues in central and southern California, which have endured two years of below average precipitation.

The Lawsuits

In March 2009, CVP and SWP contractors filed three separate lawsuits in federal court challenging the FWS’s Biological Opinion. Westlands Water District and the San Luis & Delta-Mendota Water Authority brought an action on behalf of federal contractors. The State Water Contractors, an association of 27 public agencies, filed a separate challenge on behalf of SWP customers. Finally, the Coalition for a Sustainable Delta and Kern County Water Agency, representing beneficiaries of both the SWP and the CVP, initiated their own lawsuit as well.

All three suits make similar allegations. They argue that, in producing the Biological Opinion, FWS failed to rely on the “best available scientific and commercial data” as required by the ESA, and that the agency’s conclusion that pumping operations would jeopardize the delta smelt was “arbitrary and capricious.” Similarly, they challenge the basis for FWS’s development of the “reasonable and prudent alternative” designed to protect the delta smelt population. The Westlands Water District and State Water Contractors lawsuits also allege that FWS was required under NEPA to analyze the environmental impacts of its Biological Opinion, apart from the Bureau of Reclamation’s independent duty to analyze the environmental impacts of OCAP implementation. In addition, the federal contractors in the Westlands Water District suit argue that a provision of the Incidental Take Statement (ITS) accompanying the Biological Opinion improperly gives FWS a continuing role in the operation of the pumping facilities. The Coalition for a Sustainable Delta lawsuit also alleges that, by failing to make a clear distinction between the effects of OCAP operations and the condition of the species under “environmental baseline” conditions, FWS has failed to adequately analyze the impact of OCAP on the delta smelt.

Implications and Related Regulatory Action

Federal and State water contractors have objected to what they perceive as costly and draconian limitations on the operation of the water projects’ pumping facilities since the interim restrictions were first imposed in 2007. Following the release of the revised delta smelt Biological Opinion, legal challenges to the basis for continuing limitations on pump operations were anticipated. The resolution of these cases will in no sense bring an end to disputes over the implementation of OCAP. The cases will compete with two other pending lawsuits related to OCAP that crowd the docket of U.S. District Court Judge Oliver Wanger.

As the OCAP cases wind their way through court, the biological and regulatory situation in the Delta continues to become more complicated. Following the release of a survey documenting sharp population declines for the longfin smelt (Spirinchus thaleichthys), on March 4, 2009, the California Fish and Game Commission added the longfin smelt to the State’s threatened species list. The Fish and Game Commission also moved the delta smelt from the “threatened” list to the “endangered” list. A proposal for federal listing of the longfin smelt is also under review.

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