On February 26, 2019, the United States District Court for the Eastern District of California issued a 67-page decision and order on a motion for summary judgment regarding two claims brought by the Natural Resources Defense Council and other environmental interest groups (collectively, NRDC) under the Endangered Species Act (ESA) challenging the 2005 renewals of certain long-term water supply contracts between the Sacramento River Settlement Contractors, the Delta-Mendota Canal Contractors, and the Bureau of Reclamation (Reclamation) related to the Central Valley Project (CVP).  Specifically, NRDC challenged the adequacy of the required ESA section 7 consultation by and between Reclamation and the U.S. Fish and Wildlife Service (FWS) regarding alleged effects to delta smelt resulting from the renewal of such contracts.

The court denied NRDC’s motion for summary judgment as to the ESA section 7 claims, finding that NRDC’s allegations repeatedly lacked any legal basis upon which the court could act.  Rather, the court found in favor of Reclamation, FWS, and the other Defendants, citing, in part, the following reasons:  (1) contrary to NRDC’s allegations, formal consultation under the ESA was not required, and Defendants’ informal consultation properly conformed with the substantive requirements of the ESA, including reliance on the best scientific data available; (2) Defendants sufficiently matched the temporal scope of the contract renewal to the scope of the analysis of impacts to delta smelt in determining whether the contract renewal would cause jeopardy or adverse modification to the species; (3) Defendants properly analyzed how the renewed contracts would create a demand for CVP water by including such demands in its modeling assumptions; (4) Defendants were able to analyze the effects of specific contract terms, including quantity, shortage provisions, and liability waiver on Delta outflow by incorporating such terms into modeling parameters; and (5) Defendants did not unlawfully defer consideration of the contract renewal, specifically, whether increased outflows are needed to protect delta smelt.

The dismissal of these two claims leaves only one remaining active claim in the case in which NRDC asserts violations of ESA section 9 against Reclamation and the Sacramento River Settlement Contractors for alleged taking of listed chinook salmon in 2014 and 2015.  Trial on that claim is scheduled to commence on July 10, 2019.

Several of the Sacramento River Settlement Contractor parties in the case are represented by Somach Simmons &Dunn.  For more detailed information, please see the court’s decision, available here, or contact Michelle Chester at mchester@somachlaw.com.

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.