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March 25, 2014  |  Written by Somach Simmons & Dunn

Ninth Circuit Upholds Biological Opinion in Delta Smelt Litigation

On March 13, 2014, the United States Court of Appeals for the Ninth Circuit upheld the U.S. Fish and Wildlife Service’s (FWS) 2008 biological opinion (2008 BiOp), which concluded that the long-term operations plan for the Central Valley and State Water Projects (collectively, “Projects”) would jeopardize the continued existence of the delta smelt and its habitat in the Sacramento-San Joaquin Delta (Delta).  San Luis & Delta-Mendota Water Authority v. Jewell, 2014 U.S. App. LEXIS 4781 (9th Cir. Mar. 13, 2014).  The delta smelt is currently listed as an endangered species under the Endangered Species Act (ESA).  The practical impacts of this decision include potential decreased water exports and deliveries via the Projects to central and southern California.

The Projects supply water from northern California to agricultural and domestic consumers in central and southern California.  The FWS’s 2008 BiOp contains proposed restrictions on pumping in the Delta to protect the delta smelt.  In 2010, the district court concluded that the 2008 BiOp was arbitrary and capricious, because it was scientifically unsupported and in violation of certain aspects of the ESA.  The Ninth Circuit disagreed, giving substantial deference to the FWS’s expertise and discretion, while also noting that the 2008 BiOp was “a bit of a mess” with “a jumble of disjointed facts and analyses.”  Specifically, the court held, among other things:

  • Judicial Review:  The district court’s review of the 2008 BiOp should have been limited to the scientific evidence in the administrative record, and the limited testimony of four court-appointed experts to explain the technical information.
  • Scientific Data:  The FWS’s technical data, while built on a more conservative model and not analyzed in significant detail, was supported by substantial evidence in the record.
  • Monitoring Location Identification:  The FWS’s identification of X2, a point in the Delta that directly affects how much water can be exported, was supported by models selected through reasoned analysis; and the locations of X2 was sufficiently explained in the 2008 BiOp.
  • Incidental Take Statement:  The FWS reasonably used and adequately explained its use of: (1) different data sets for adult and juvenile smelt take limits; and (2) an average cumulative salvage index.
  • Indirect Effects Analysis:  Evidence in the record supported the 2008 BiOp’s conclusions regarding the indirect effects of the Projects’ operations on the delta smelt, including reduced food supply, increased water contamination, and increased harmful effects from other stressors.
  • ESA Reasonable and Prudent Alternatives (RPA):  The FWS did not need to articulate: (1) the economical and technological feasibility of the RPA; (2) how the RPA is consistent with the project’s purpose; or (3) how the RPA falls within the implementing agencies’ authority.  The court noted, however, the FWS’s determination that the RPA satisfied the non-jeopardy factors could be reasonably discerned from the record.
  • ESA Baseline:  The FWS was not required to distinguish between discretionary and non-discretionary actions to identify the ESA baseline, against which the effects of the proposed action would be compared.
  • National Environmental Policy Act (NEPA) Application:  The Bureau of Reclamation (Bureau), as the federal operator of the Central Valley Project, not the FWS, must complete an Environmental Impact Statement under NEPA to evaluate the effects of the Bureau’s adoption and implementation of the 2008 BiOp.  On this point, the Ninth Circuit affirmed the district court’s decision.

This long-awaited decision confirms the scope of judicial review and the general principles of deference given to administrative agencies within the context of environmental review.  The practical effect of this decision on water supply to central and southern California remains to be seen.

For further information regarding this case, please contact Louinda Lacey at 916-446-7979 or by email at

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