Delta smelt gain a win in federal court

SAN FRANCISCO
April 16, 2014 9:00pm
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•  Appellate court says Bureau of Reclamation violated federal law

•  “Bureau of Reclamation was required to engage in … consultation”

•  "An opportunity to revisit these 25- and 40-year contracts"


The U.S. Bureau of Reclamation violated the federal Endangered Species Act when it favored farmers over fish by approving new water contracts for water to be pumped out of the Sacramento-San Joaquin Delta, the full 11-member U.S. 9th District Court of Appeals has ruled unanimously.

It says the Bureau, which operates the federal Central Valley Project irrigation system, should have consulted with the United States Fish and Wildlife Service or the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service prior to taking any agency action that could affect an endangered or threatened species or its critical habitat.

The small Delta smelt is an endangered animal and often the focus of political bloviating about the efforts to keep it from going extinct. The Delta smelt population declined by 90 percent between the 1970s and 1990s.

“The federal Bureau of Reclamation was required to engage in … consultation because, in renewing the challenged contracts, it retained ‘some discretion’ to act in a manner that would benefit the delta smelt,” says the opinion of the full court.

In an earlier ruling it cites in the new case, the court said:

“The purpose of consultation is to obtain the expert opinion of wildlife agencies to determine whether the action is likely to jeopardize a listed species or adversely modify its critical habitat and, if so, to identify reasonable and prudent alternatives that will avoid the action’s unfavorable impacts. The consultation requirement reflects ‘a conscious decision by Congress to give endangered species priority over the ‘primary missions’ of federal agencies.”

“Today’s decision strongly reinforces the requirement of the Endangered Species Act that if, the Bureau of Reclamation has any discretion in negotiating long-term water contracts to benefit a listed species, the agency must exercise that discretion to ensure that the contracts do not harm the species," says Trent Orr, Earthjustice staff attorney. "The court found that the Bureau does have such discretion. This ruling provides an opportunity to revisit these 25- and 40-year contracts and include provisions that encourage water conservation and make realistic allotments of water to protect adequate in-stream flows to restore the health of the entire Delta ecosystem.”


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