• Court Issues Long-Awaited Ruling Rejecting Delta Salmon Biological Opinion
  • September 23, 2011 | Authors: Steven M. Anderson; Gregory K. Wilkinson
  • Law Firm: Best Best & Krieger LLP - Riverside Office
  • In a decision that could impact the water supply for millions of people, communities and farmers across California, a federal judge issued a ruling that will ease pumping restrictions on the state and federal water projects in the Sacramento-San Joaquin River Delta. The 279-page decision issued yesterday by soon-to-be-retired U.S. District Judge Oliver Wanger in Fresno confirms that the federal agencies must use the best available science and sufficiently justify their specific prescriptions aimed at protecting endangered species before imposing harsh restrictions on the Delta water projects. BB&K attorneys were among those lawyers who successfully argued before the judge.

    The pumping restrictions on the federal Central Valley Project and the State Water Project were imposed as part of a biological opinion issued by the National Marine Fisheries Service (NMFS) in June 2009. The biological opinion concluded that pumping operations by the two projects were likely to jeopardize the continued existence and adversely affect the critical habitat of several salmon and other species that migrate through the Delta. As a consequence of this “jeopardy” opinion, NMFS imposed a “reasonable and prudent alternative” on the projects, and the U. S. Bureau of Reclamation agreed to adopt and implement the resulting restrictions on the timing and volume of water exports from the Delta. Several water agencies challenged the biological opinion, including the California Department of Water Resources, which operates the State Water Project.

    In March 2010, the court determined that the federal agencies had violated the National Environmental Policy Act, by failing to evaluate the potential environmental consequences of their restrictions. Judge Wanger’s ruling yesterday concluded that the agencies also violated the Endangered Species Act and the Administrative Procedures Act by failing to rely on the best available science or sufficiently justify the prescriptions imposed against the projects.

    Based on this decision, the federal agencies will be required to prepare and file a new biological opinion. In the interim, the court’s rejection of the biological opinion will likely allow the State Water Project and Central Valley Project greater latitude for pumping water from the delta.