On February 19, 2020, the Bureau of Reclamation (Reclamation) issued a Record of Decision (ROD) for the Central Valley Project (CVP) operations.  The ROD is the final agency action to implement a new operational regime based on Reclamation’s Final Environmental Impact Statement for the Reinitiation of Consultation on the Coordinated Long-Term Operations of the CVP and State Water Project from December 2019, and the U.S. Fish and Wildlife Service’s and National Marine Fisheries Service’s respective biological opinions from October 2019.  The federal agencies’ stated goals of the ROD are to bring changes to CVP operations through increased operational flexibility and reliability.

Operational changes from the prior regime, based on biological opinions issued in 2008 and 2009, include additional monitoring based on real-time conditions, improved cold water management at Shasta Reservoir to benefit salmon spawning conditions, increased efforts to reintroduce winter-run Chinook salmon in Battle Creek and tributaries of the Sacramento River, and implementation of a strategy to improve Delta smelt populations within five years.  Additionally, the ROD includes an influx of $1.5 billion in combined state and federal funding.  The funding specifically addresses habitat restoration, facility improvements, increased monitoring efforts, and a comprehensive science program.  The ROD includes measures for salmon restoration such as increasing spring pulse flows under certain conditions to assist in spring-run Chinook salmon migration, restoring spawning and rearing habitat, improving fish passage, and reducing straying at sites along the Sacramento River.  The ROD also requires studies that will analyze the effects of operations on the fisheries in order to develop additional protective measures for both juvenile and larval delta smelt.

The ROD and underlying environmental documents were ceremonially approved by President Trump on February 20, 2020.  President Trump stated that the operational changes should have the effect of increasing water deliveries to the Central Valley and Southern California.

In response, the State of California, acting through the California Environmental Protection Agency, California Natural Resources Agency, and the California Office of the Attorney General on behalf of the people of California, filed a lawsuit challenging the biological opinions as insufficient to protect listed species and habitat in the Sacramento and San Joaquin River watersheds and the Bay-Delta.  The state agencies also sent a 60-day notice letter under the Endangered Species Act to the federal agencies detailing the State’s objections to the new biological opinions.  The State’s 60-day notice letter and lawsuit follow the issuance of draft environmental documents in support of an incidental take permit application under the California Endangered Species Act by the California Department of Water Resources in November 2019.  These draft environmental documents propose alternative operations for the State Water Project that materially differ from the operations now adopted through the ROD by the federal agencies for the CVP.

This is the second lawsuit filed challenging the new biological opinions.  Environmental groups previously filed an action on December 12, 2019, alleging that the 2019 biological opinions weaken the protections on listed species and further degrade the environmental conditions in the Delta, Sacramento, and San Joaquin watersheds compared to the 2008 and 2009 biological opinions.  The environmental groups allege that the new biological opinions ignore the effects on listed species by reducing Delta outflow, increasing salinity in the Delta, and failing to provide adequate water temperatures among other impacts, in favor of eliminating regulatory burdens on water deliveries.  Both lawsuits are currently pending in the U.S. District Court for the Northern District of California.

For additional information on this topic, please contact Palmer Hilton at philton@somachlaw.com or (916) 446-7979.

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.