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Fish and Wildlife Service Required to Justify Pumping Restrictions in the Delta
June 9, 2009

by Jacqueline L. McDonald
jmcdonald@somachlaw.com

On May 29, 2009, in the United States Eastern District Court case of San Luis & Delta-Mendota Water Authority, et al v. Salazar (Case No. 1:09-CV-00407), the United States Fish and Wildlife Service (Service) was enjoined from restricting pumping operations in the Delta without justification and an explanation of why alternative, less severe restrictions would not adequately protect the delta smelt.  The Court found that Plaintiffs San Luis & Delta-Mendota Water Authority and Westlands Water District (collectively “Westlands”) were reasonably likely to succeed on their claim that the Service violated the National Environmental Policy Act (NEPA) in failing to conduct environmental review before establishing pumping restrictions for the protection of delta smelt.

The Biological Opinion

In May 2007, in the related case of Natural Resources Defense Council v. Kempthorne (E.D. California, Case No. 1:05-CV-1207) (Kempthorne), the Eastern District Court invalidated the Service’s 2004 biological opinion that addressed impacts of the California Department of Water Resources (DWR) and the United States Bureau of Reclamation’s (Reclamation) joint operations of the State Water Project and Central Valley Project (collectively “Project”) on the delta smelt.  The delta smelt is an aquatic species residing in the Delta that is listed as threatened under the federal Endangered Species Act (ESA).  The Court ordered the Service to prepare a lawful biological opinion to ensure that the Project operations would not jeopardize the delta smelt in violation of the ESA.  The Court held additional proceedings to impose interim remedies that would ensure that Project operations would not jeopardize the delta smelt while the Service prepared a new biological opinion.  Due to the narrow considerations allowed by the ESA, the Court refused to hear any evidence related to the economic and environmental harm resulting from the proposed remedies.

Pursuant to the Court’s order in the Kempthorne case, on December 15, 2008, the Service issued a new biological opinion analyzing the effects of Project operations on the delta smelt (2008 Biological Opinion).  To avoid jeopardy to the delta smelt, the biological opinion required, among other things, that Reclamation and DWR restrict operations of the Project pumps in the Delta during a defined period in the spring to protect delta smelt.  In preparing the 2008 Biological Opinion, the Service did not consider potential economic and environmental impacts that would result from the restrictions imposed to protect delta smelt.  The pumping restrictions resulted in significant water delivery cutbacks for agricultural and urban water users.

The Preliminary Injunction

In early 2009, Westlands filed a complaint asserting that the Service issued the 2008 Biological Opinion in violation of the ESA and NEPA.  Westlands immediately requested preliminary injunctive relief to prevent implementation of certain pumping restrictions required by the 2008 Biological Opinion without an explanation of why less restrictive restrictions would not adequately protect the delta smelt.  In support of the injunction, Westlands submitted evidence that more than 34,000 jobs would be lost in the San Joaquin Valley as a result of the water delivery restrictions, and that most of the job losses would be suffered by farmworkers and employees of packing houses and processing plants.  Westlands also provided evidence establishing additional, non-economic hardships, involving dislocation of families and related impacts, loss of school and tax revenue, food insecurity, and adverse impacts to groundwater supply and quality, soil quality, and air quality.

Considering only the NEPA claim, Judge Wanger found that a preliminary injunction was warranted because Westlands had a strong likelihood of success on the merits.  The Court found that the 2008 Biological Opinion likely constituted a major federal action triggering NEPA obligations.  In addition, the Court found that pumping restrictions imposed by the 2008 Biological Opinion would have substantial, detrimental, indirect effects on Westlands, the community, and the human environment.  As such, the Court found a strong likelihood that Westlands would be able to establish that the Service violated NEPA by failing to conduct environmental review before issuing the 2008 Biological Opinion.  After balancing the harms and hardships as required under a traditional preliminary injunction analysis, the Court determined that granting the injunction would not subject the delta smelt to any harm, and given the extent of the economic and non-economic hardship resulting from decreased flow, the balance of the harms tipped in favor of Westlands.

As a result of the ruling, the Service cannot set and implement unnecessarily restrictive flow restrictions through approximately June 30, 2009, unless and until it first considers the harm that these decisions and actions are likely to cause humans, the community, and the environment.  If the Service seeks to impose the more stringent pumping restrictions, it is required to provide to the Court, and all parties to the suit, a written statement explaining why alternative, less restrictive flows would not adequately protect the delta smelt. 

Conclusion and Implications

The short-term effects of Judge Wanger’s recent ruling may not amount to significant changes in the restrictions imposed on the Project pumps this water year.  In the long-term, however, the ruling suggests that the Service may, as a result of a future decision on the merits in this case, be required to issue a new biological opinion that has gone through NEPA review.  Westlands or others may raise the same claim against the National Marine Fisheries Service biological opinion, issued on June 4, 2009, that further restricts Project operations to protect salmon.  NEPA review will allow for public comment on and consideration of the effects of the pumping restrictions, including impacts on humans, the community, and the environment. 

For more information, please contact Jacqueline McDonald at jmdonald@somachlaw.com.



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