• Ninth Circuit Upholds Delta Smelt Biological Opinion Pumping Restrictions
  • March 19, 2014 | Authors: Steven M. Anderson; Gregory K. Wilkinson
  • Law Firm: Best Best & Krieger LLP - Riverside Office
  • In a reversal potentially impacting the water supply to millions of Californians, the Ninth Circuit Court of Appeals recently upheld a biological opinion issued by the United States Fish and Wildlife Service (FWS) regarding the effect of California State Water Project (SWP) and federal Central Valley Project (CVP) operations on the delta smelt—a small fish located in the Sacramento-San Joaquin Delta. The Ninth Circuit held the biological opinion valid, largely based on general principles of deference to federal agencies. Although the court stated it was “acutely aware of the consequences of this proceeding,” its decision is likely to affect the availability of water to hundreds of thousands of acres of farmland and tens of millions of people throughout the state.

    The Ninth Circuit upheld, however, a determination that the Bureau of Reclamation, as the federal operator of the CVP, failed to perform required analyses of human environmental impacts caused by implementing the biological opinion under the National Environmental Policy Act (NEPA). The court acknowledged that the district court will continue to actively manage Reclamation’s deadlines for completing this environmental review process.

    In December 2008, FWS issued a biological opinion containing restrictions on SWP and CVP pumping in the Delta aimed at protecting the delta smelt. Several challenges were raised against the opinion and in 2010, the district court invalidated the restrictions, stating they were not based on the best available science and other requirements imposed by the Endangered Species Act and other federal laws.

    In its current decision, the Ninth Circuit reversed, finding the analyses were supported by substantial evidence and were not arbitrary and capricious. The court deferred to FWS’s use of data, its setting of flow restrictions and its choice of salinity intrusion restrictions based on measuring locations. The court also deferred to FWS’s estimation of the levels of “entrainment” of delta smelt at the CVP and SWP pumps, as well as the opinion’s analyses of indirect effects on food supplies, water contaminants and other biological stressors. The court additionally held that FWS was not required to show whether its restrictions were economically and technologically feasible, within the implementing agencies’ authority, or consistent with the project’s purposes, as noted in the regulatory definition of a valid “reasonable and prudent alternative” under the Endangered Species Act.

    The Ninth Circuit rejected arguments that FWS was required to distinguish between nondiscretionary and discretionary actions, or that it was required to perform environmental review of the biological opinion’s impacts pursuant to NEPA. However, the court upheld the district court’s remand based on the Bureau of Reclamation’s failure to comply with NEPA environmental review requirements before implementing the biological opinion.