On July 11, 2014, the United States District Court for the Eastern District of California issued a ruling denying a motion for preliminary injunction seeking to bar the United States Bureau of Reclamation (Reclamation) from approving or carrying out water transfers under the 2014 San Luis & Delta-Mendota Water Authority Water Transfer Project (2014 Transfer Project). AquAlliance, et al. v. United States Bureau of Reclamation, et al., No. 14-CV-000945, 2014 U.S. Dist. LEXIS 94791 (E.D. Cal. July 11, 2014).  The Court found no merit in plaintiff environmental groups’ (Plaintiffs) allegations that Reclamation violated the National Environmental Policy Act (NEPA) by approving the 2014 Transfer Project.  In January and April, Governor Brown issued Emergency Drought Proclamations highlighting the importance of water transfers to aid drought relief.  This ruling allows the 2014 Transfer Project to move forward.

Background

The 2014 Transfer Project provides for the transfer of water from water rights holders or contractors located north of the Sacramento-San Joaquin Delta (Delta) to members of the San Luis and Delta-Mendota Water Authority who are located south of the Delta.  Reclamation reviews proposals and facilitates water transfers by conveying water through the Delta using Central Valley Project facilities.  In April, Reclamation issued its Environmental Assessment (EA) for the 2014 Transfer Project with a Finding of No Significant Impact (FONSI).  The EA and FONSI note that Delta smelt, a species listed under the federal Endangered Species Act (ESA), “are generally not in the Delta during the transfer period (July-September) and effects to these fish species from transferring water during this timeframe were considered in the [National Marine Fisheries Service and U.S. Fish and Wildlife Service Biological Opinions].”

The Court’s ruling summarizes Reclamation’s consultation with the U.S. Fish and Wildlife Service (FWS) regarding the impacts of drought-year changes to operations and the 2014 Transfer Project on Delta smelt.  In brief, Reclamation consulted with FWS following various proposed operational changes, including regarding the impacts of the 2014 Transfer Project.  FWS concurred that temporary alterations to operations and the facilitation of the 2014 Transfer Project would cause no additional adverse impacts to Delta smelt or habitat beyond those considered in its 2008 Biological Opinion.

In May, Plaintiffs sent Reclamation a letter requesting supplemental NEPA review of the 2014 Transfer Project.  The letter included a May 29, 2014 report by Plaintiffs’ scientific expert stating that drought-related regulatory changes would expose Delta smelt to adverse conditions and higher mortality.  Reclamation asked two biologists to consider the Plaintiffs’ report and they found the concerns lacked merit.  Plaintiffs then submitted an additional letter on June 10, 2014 stating that Reclamation’s analysis “grossly overestimates Delta outflow” and that this constitutes new information requiring supplemental NEPA review.  Plaintiffs filed suit on June 11, 2014.

The Court’s Ruling

The Court disposed of Plaintiffs’ argument that Delta smelt “will be stuck within the Delta” and threatened by the transfers by finding that the EA properly incorporated by reference the 2008 Biological Opinion which concludes that the Delta smelt are generally not in the Delta during the transfer period.  The Court held that it must defer to the agency so long as the conclusions are supported by studies the agency deems reliable.  Thus, the Court deferred to FWS and Reclamation’s findings that no additional adverse impacts to Delta smelt or its habitat were expected to occur and declined to consider Plaintiffs’ expert report.

The Court explained that FWS found that the 2014 Transfer Project would not cause “additional adverse affects” to Delta smelt so it cannot cause a “significant” impact triggering any further NEPA review.  Finally, the Court rejected Plaintiffs’ requests for supplemental NEPA review on the grounds that each allegedly new piece of information did not create a different picture of likely environmental harms stemming from the proposed action.

Conclusion

Ultimately, the Court determined that this case was simply a dispute between Plaintiffs’ chosen expert and the scientists from the expert fisheries agency on whether the 2014 Transfer Project will adversely impact Delta smelt.  Employing a high level of deference to the expert agency, the Court held that Plaintiffs are unlikely to succeed on the merits.  The ruling allows the 2014 Transfer Project to move forward, which will help south of Delta water users cope during the drought.

For additional information please contact Richard S. Deitchman at (916) 446 7979 orrdeitchman@somachlaw.com.

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