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:
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 email@example.com.
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