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Judge Wanger Rules That Bureau of Reclamation Violated NEPA In Accepting and Implementing U.S. Fish & Wildlife Service’s Biological Opinion On Delta Smelt December 8, 2009 by Brian D. Poulsen bpoulsen@somachlaw.com |
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On November 13, 2009, Judge Oliver Wanger of the United States District Court, Eastern District of California, invalidated the Bureau of Reclamation’s (Reclamation) decision to accept and implement the United States Fish & Wildlife Service’s (Service) December 15, 2008 biological opinion (BiOp) addressing the impact of coordinated operations of the Central Valley Project (CVP) and State Water Project (SWP) (collectively, Projects) on the threatened delta smelt, and its corresponding Reasonable and Prudent Alternative (RPA). The Court ruled that Reclamation failed to comply with the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (NEPA), by provisionally accepting and implementing the BiOp and RPA without first completing an environmental impact statement (EIS) to consider significant effects on the human environment. Background In 2005, the Service issued a biological opinion on the effects of the coordinated operations of the Projects on the threatened delta smelt, wherein it found that the operations of the Projects would not jeopardize the continued existence of the smelt. Environmental groups subsequently challenged that opinion. On May 25, 2007, Judge Wanger ruled that the opinion failed to analyze significant information, including the smelt’s total population numbers, and that such a failing rendered the Service’s “no jeopardy” finding arbitrary, capricious, and contrary to law. Consequently, Judge Wanger ordered the Service to conduct a new biological opinion. Pursuant to that order, the Service issued the BiOp at issue in this litigation on December 15, 2008. That BiOp found that planned coordinated Project operations would jeopardize the continued existence of the delta smelt and/or adversely modify its critical habitat. Accordingly, the Service proposed an RPA, which imposes certain operating restrictions on the Projects. Thereafter, Reclamation provisionally accepted the BiOp and RPA while it conducted its own review of whether the BiOp could be implemented in a manner consistent with the intended purpose of the Projects, is within Reclamation’s legal authority and jurisdiction, and is economically and technologically feasible. Notwithstanding the provisional nature of Reclamation’s acceptance of the BiOp and RPA, Reclamation immediately began implementing the RPA and BiOp requirements. Plaintiffs, mostly urban and agricultural water suppliers, quickly filed suit in San Luis & Delta-Mendota Water Authority, et al. v. Salazar, et al.; State Water Contractors v. Salazar, et al.; Coalition for a Sustainable Delta, et al. v. U.S. Fish & Wildlife Serv., et al.; Metropolitan Water Dist. v. U.S. Fish & Wildlife Serv., et al.; Stewart & Jasper Orchards, et al. v. U.S. Fish & Wildlife Serv., No. 1:09-CV-407 OWW DLB (E.D. Cal. filed March 3, 2009) (“Delta Smelt Consolidated Cases”). In challenging the BiOp, Plaintiffs alleged that the issuance and/or implementation of the BiOp/RPA is a “major federal action” that will inflict harm on the human environment, and that the Service and/or Reclamation should have, but did not conduct an environmental assessment or prepare an EIS under NEPA. The Court Decision The essence of Plaintiff’s contention is that the Service and/or Reclamation failed to comply with NEPA in the issuance, implementation, and acceptance of the BiOp. NEPA requires all federal agencies to prepare an EIS to evaluate the potential environmental consequences of any proposed “major federal action significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(c). In responding to Plaintiffs’ argument, first, the Court analyzed in great detail whether the Service’s issuance of the BiOp was a “major federal action.” The Court declared, “It is a close call whether FWS’s issuance of the BiOp and its RPA under these circumstances is major federal action under NEPA.” Ultimately, however, the Court declined to rule on this issue, declaring instead that Reclamation’s provisional acceptance and implementation of the BiOp and its RPA constitute major federal action because they represent a significant change to the operational status quo. Projects such as the CVP and SWP, constructed prior to January 1, 1970, the date on which NEPA became effective, are not retroactively subject to NEPA. If an ongoing project undergoes changes, which themselves amount to major federal actions, however, the operating agency must prepare an EIS. Thus, the issue was whether the BiOp causes a change to the operational status quo of an existing project. In distinguishing routine changes, the Court held that Reclamation’s implementation of the BiOp is a major federal action because it substantially alters the status quo in the Projects’ operations. The BiOp and its RPA require significant reductions in water deliveries to account for protection of the smelt. Thus, implementing the BiOp and its RPA constitutes major federal action under NEPA. Having determined that Reclamation’s provisional acceptance and implementation of the BiOp and its RPA constitute major federal action, the Court next analyzed whether such action would “significantly affect the human environment.” The Court noted that the undisputed facts indicate that implementation of the RPA reduced pumping by more than 300,000 acre-fee in the 2008-2009 water year. Such a reduction in exports from the Delta likely caused, or will cause, greater demands upon alternative sources of water, including groundwater, from which “the potential environmental impact ... is beyond reasonable dispute.” The Court also referred to adverse effects on agriculture including, but not limited to, loss of jobs, fallowed land, land subsidence, and air pollution resulting from heavier reliance on groundwater pumping and decrease in surface irrigation. These facts, the Court found, were sufficient to “significantly affect the human environment.” Thus, the Court held that Reclamation unlawfully failed to comply with NEPA by not preparing an EIS for the acceptance and implementation of the Service’s December 15, 2008 BiOp because such implementation causes a change to the operational status quo of the existing Projects, rendering the decision a major federal action, and will increase reliance on groundwater pumping, significantly affecting the human environment. Conclusions and Implications The looming issue now lies in Plaintiff’s remedies. While the Court held a remedies hearing on November 24, 2009, the parties are still briefing the remedies issues and it remains unclear whether only requiring Reclamation to conduct an EIS prior to accepting and implementing the BiOp and RPA will ultimately influence the pumping restrictions currently required by the BiOp. Significantly, the Court left unanswered the issue of whether the actual issuance of the BiOp by the Service constitutes major federal action that could significantly affect the human environment, thereby requiring an EIS by the Service, prior to issuance of the BiOp and RPA. This is important because requiring the Service to conduct an EIS before issuing the BiOp and its corresponding RPA will almost certainly alter the pumping restrictions currently required by the BiOp because it will require the Service to consider a host of factors not previously considered, such as resulting job loss, agricultural losses, and increase in groundwater pumping. This NEPA issue is likely to take center stage in Plaintiffs’ related case challenging the Service’s June 4, 2009 BiOp addressing the impact of coordinated long-term operations of the Projects on the endangered Sacramento River winter-run Chinook salmon and other species currently pending in front of Judge Wanger. In that case, unlike the challenge to the smelt BiOp, Reclamation has yet to implement the RPA pumping restrictions. Thus, the issue most ripe for review will be whether the issuance of the BiOp itself by the Service, rather than the implementation by Reclamation, requires an EIS. Judge Wanger’s decision in the Delta Smelt Consolidated Cases is available at http://plf.typepad.com/files/nov13nepadecision.pdf. For more information, please contact Brian Poulsen at bpoulsen@somachlaw.com. Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice. In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn. |
