By Glen C. Hansen
In re Consoidated Delta Smelt Cases, 2011 U.S. Dist. LEXIS 98300 (E.D. Cal. Aug. 31, 2011)
In 2008, the United States Fish and Wildlife Service (“FWS”) issued a biological opinion (“BiOp”) under section 7 of the Endangered Species Act that addressed the impacts of the coordinated operations of the federal Central Valley Project (“CVP”) and State Water Project (“SWP”) on a threatened fish known as the California delta smelt in the Sacramento San Joaquin Delta. The BiOp concluded that “the coordinated operations of the CVP and SWP, as proposed, are likely to jeopardize the continued existence of the delta smelt” and “adversely modify delta smelt critical habitat.”
In November 2009, the U.S. District Court for the Eastern District of California held that the federal agencies violated NEPA when they implemented the BiOp without conducting the required NEPA analysis. Delta Smelt Consol. Cases v. Salazar, 686 F.Supp.2d 1026 (E.D.Ca. 2009).
In December 2010, the District Court for the Eastern District ruled, in part, that the Reasonable and Prudent Alternative (“RPA”) Component 3, Action 4 (the “Fall X2 Action”) of the BiOp violated the Administrative Procedure Act’s and FWS’s own Consultation Handbook implementing the ESA. The RPA was purportedly designed to improve habitat for delta smelt growth and rearing, and required sufficient Delta outflow to maintain a monthly average location of two parts per thousand salinity (“X2”) no greater (more eastward) than 74 kilometers from the Golden Gate Bridge in “wet” water years and 81 kilometers from the Golden Gate Bridge in “above normal” water years. The average monthly location of X2 in the fall must be maintained in September and October (in November, the Fall X2 Action requires the Projects to adjust their upstream reservoir releases to prevent the storage of inflow). The court held that FWS failed to explain why it is essential to maintain X2 at 74 km and 81 km respectively, as opposed to any other specific location: “The public cannot afford sloppy science and uni-directional prescriptions that ignore California’s water needs.” Delta Smelt Consol. Cases v. Salazar, 760 F.Supp.2d 855, 969 (E.D. Cal. 2010).
Despite that ruling by the District Court in December 2010, the federal agencies nevertheless intended to implement the Fall X2 Action beginning on September 1, 2011. Plaintiff water agencies and water contractors’ therefore moved for post-judgment injunctive relief. The District Court granted that motion in August 2011 and enjoined the BiOp’s Fall X2 Action to prevent implementation of the 74 km X2 target. The court explained that, even if an injunction may not issue under the ESA based on economic harm, there is no such restriction in a NEPA case; and where the evidence indicates that the ESA will not be violated by injunctive relief issued under NEPA (which the court found to be true in this case), the presence of a NEPA claim permits consideration of economic harm evidence. On that legal authority, and balancing the hardships, the court held that X2 not be allowed to shift east of the confluence of the Sacramento San Joaquin Rivers, and positioning X2 at 80 km or 79 km accomplished that goal, as well as reduced the water supply impact of the Fall X2 Action. In support of that holding, the court found, among other things, (1) the BiOp “relies almost exclusively” on work by a Bureau of Reclamation scientist, about whom the court stated, “His scientific objectivity is compromised by inconsistency,” and whose life cycle model and implementation the court found to “represent relevant but scientifically compromised findings regarding the relationship of Fall X2 to smelt abundance”; (2) the FWS violated NEPA, which resulted in the issuance and implementation of a “one-sided, single purpose RPA that inflicts drastic consequences on California water users, a situation NEPA prohibits”; (3) “detrimental effects would be visited on the quality of the human environment by implementation of the BiOp’s RPA Actions, which impose substantial restrictions on the water supply to California, solely to protect the delta smelt”; (4) position of the Fall X2 Action would have likely caused “a negative 300,000 acre feet water supply impact to SWP contractors,” which would have impacted long-term water supply reliability for both domestic and agricultural users, including “impacts to groundwater recharge programs, with resulting direct environmental impacts to groundwater levels, groundwater quality, and energy use,” as well as water supply reductions that “will cause economic impacts to farmers and may have socioeconomic impacts on agricultural communities” (although such economic and socioeconomic impacts were unclear in this “wet” year); and (5) the scientific evidence in support of imposing any Fall X2 action “is manifestly equivocal” because “[t]here is essentially no biological evidence to support the necessity of the specific 74 km requirement set to be triggered in this ‘wet’ water year,” and because “[t]he agencies still ‘don’t get it.’ They continue to believe their ‘right to be mistaken’ excuses precise and competent scientific analysis for actions they know will wreak havoc on California’s water supply.”
Glen C. Hansen is an attorney at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.