Posts Tagged ‘Delta’


Under the Endangered Species Act (ESA), if the Secretary of the Interior concludes that a federal agency action will jeopardize a species listed as threatened or endangered, then the Secretary must use the best scientific and commercial data available to identify reasonable and prudent alternatives that are economically and technologically feasible. Petitioners in State Water Contractors v. Jewell presented the U.S. Supreme Court with the following questions related to the Act’s directive: 1) Must the Secretary address in the administrative record the economic and technical feasibility of proposed “reasonable and prudent alternative,” including the effects of the proposed alternatives on third parties? 2) May the Secretary disregard the “best scientific data” on the ground that considering the data would lead to a less “conservative” result, because scientific certainty is impossible, or because the Secretary has considered a range of data in reaching a conclusion?

This case arose after the U.S. Fish and Wildlife Service (FWS) issued a Biological Opinion (BiOp) in 2005 which found that operation of the state’s two largest water projects, the State Water Project and the Central Valley Project, threatened the delta smelt, and thereby curtailed those projects’ operations. The district court found major flaws with the BiOp and ordered FWS to reconsider it, but the Ninth Circuit reversed. The appellate court held that FWS was precluded as a matter of law from considering the economic effects of its proposed restrictions on project operations on Californians. The court also excused FWS’s failure to use the best available scientific data in formulating its opinion. Petitioners argued that the Ninth Circuit’s decision exacerbated the harmful effects of California’s drought, created circuit splits, and contravened the Supreme Court’s precedents.

The BiOp, which the appellate court described as “a big bit of a mess,” concluded that unless the quality and quantity of the delta smelt habitat improved, the smelt would not recover from their downward population trend. The BiOp specified various actions as reasonable and prudent alternatives (RPAs) to the status quo, including limiting the amount of water the projects could pump for certain uses. Petitioners claimed that the amount of water sacrificed to implement the RPAs could have met the needs of over one million households for a year, or irrigated two hundred thousand acres of farmland.

District Court decision

Petitioners brought suit alleging the BiOp violated NEPA, the ESA, and the Administrative Procedure Act. The district court held the BiOp invalid. First, it found FWS had failed to establish that its RPAs met the requirements for a reasonable and prudent alternative under 50 C.F.R. section 402.02, including the requirement that the proposed restrictions be economically and technologically feasible. The court also held that the analyses supporting the specific flow prescriptions set forth in the RPA were fatally flawed and predominantly unsupported, given that 1) FWS failed to use the best available science in calculating flow rates to reduce the number of fish drawn into the pumping stations and 2) the BiOp adopted a flawed methodology to set limits on salinity in the Delta in the autumn of years categorized as above-normal or wet. The court found the agency’s decision “was arbitrary and capricious and ignored the best available science showing that a bias was present.”

Ninth Circuit decision

In a divided panel, the Ninth Circuit reversed. The majority agreed with FWS that the agency was not required to explain why its proposed RPAs met the feasibility standard set forth in the agency’s own regulations. The court also upheld FWS’s decision to use raw salvage data, concluding that normalized data was not tailored to protect the maximum absolute number of individual smelt, as the BiOp’s approach was. The court noted that although ideally FWS would have discussed its reasoning in using that data, the agency’s choice was entitled to deference. One judge sitting by designation from the Eighth Circuit dissented, arguing that because the concerns relating to the RPAs’ feasibility had been raised, FWS was required to at least address those concerns in the BiOp or in the administrative record. The dissent also argued that FWS had failed to use the best available science. The dissent also concluded that the agency’s means of determining where in the Delta the salinity reaches two parts per thousand was arbitrary and capricious, and disagreed with the majority’s decision to ignore the expert witnesses.

Argument for granting the writ

Petitioners described the issues presented as ones of “exceptional national importance.” They argued cert is warranted to resolve a circuit conflict over whether a consulting agency must consider the effects on third parties when proposing reasonable and prudent alternatives to agency action. Furthermore, petitioners noted, whether the ESA requires or precludes an agency from considering the economic impact of its proposed restrictions on agency activity on third parties is a question of recurring importance, given the fact that the federal government conducts thousands of ESA consultations every year. Petitioners argued, that, contrary to the Ninth Circuit’s interpretation, the presence of the feasibility requirement in the definition section of the regulations made the requirement more central to the agency’s obligation of reasoned explanation than it would if the requirement appeared elsewhere. By failing to consider feasibility, petitioners stated, FWS entirely failed to consider an important aspect of the problem, and therefore acted arbitrarily and capriciously. This would not mean that an RPA requirement authorizes FWS to balance the life of delta smelt against the impact of restrictions on project operations; but in choosing among possible alternatives that would avoid jeopardy, an agency would be required to consider the impact of the various effective alternatives on third parties, “in order to avoid unnecessary harm to humans in the course of protecting plants and animals.”

The California State Legislature created the Delta Stewardship Council in 2009 by enacting SBX7 1, the Delta Reform Act. The Council’s primary mission is to adopt a comprehensive management plan for the Sacramento-San Joaquin Delta (the “Delta Plan”) that achieves the “coequal goals” of providing a more reliable water supply for California and protecting, restoring, and enhancing the Delta ecosystem.

In developing its recently adopted Delta Plan, the Council was required to prepare an Environmental Impact Report (EIR). The Council published a notice of preparation in December 2010 indicating that it would prepare a programmatic EIR to evaluate the potential environmental impacts of the proposed Delta Plan.

An EIR was required under CEQA because the Delta Plan could have significant environmental effects relating to the binding regulatory policies included within the Plan. The Council will not directly construct, own, or operate facilities in the Delta, or directly undertake any other specific activities to implement the Delta Plan, so adoption of the Plan would not result in direct physical changes to the environment. But adoption of the plan could indirectly cause such changes by influencing the decisions and actions of other agencies. The EIR focused on these potential indirect impacts.

Preparation of the EIR involved an extensive drafting and public review process. Numerous public workshops and hearings were held, culminating in nearly 100 public meetings, and many draft documents were circulated to the public. Five draft versions of the Delta plan were released between 2010 and 2011, with a final draft released in 2012. The Draft PEIR for the Delta Plan was circulated in 2011, and recirculated in 2012. A final EIR responding to public comments was certified by the Council at its May 16-17, 2013 meeting.

Despite the extensive public review process, multiple interest groups have challenged the Council’s certification of the EIR in court. Following certification of the EIR, the Council published a notice of determination, which starts a 30-day statute of limitations in which to bring a suit under CEQA. By the close of this limitations period, seven lawsuits had been filed in various courts challenging the adequacy of the EIR.

Three lawsuits were filed in the Sacramento County Superior Court. The San Luis & Delta-Mendota Water Authority and Westlands Water District filed a petition alleging numerous causes of action under CEQA and also alleging that the Council violated the Delta Reform Act. A second lawsuit was filed by the State Water Contractors, who were joined by various flood control and water districts. This suit also alleges similar violations of CEQA, such as inadequate mitigation measures and inadequate responses to comments and claims that the Delta Plan is inconsistent with the Delta Reform Act. A third suit was filed by the North Coast Rivers Alliance, Pacific Coast Federation of Fishermen’s Associations, San Francisco Crab Boat Owners Association and the Winnemem Wintu. Again, this suit included numerous allegations of CEQA violations, as well as violations of the Delta Reform Act.

The City of Stockton filed suit against the Council in San Joaquin County Superior Court. This suit alleges the EIR violated CEQA for numerous reasons and that the Delta Plan and regulations adopted by the Council conflict with state law and vested rights created by statutory and common law.

The three remaining suits were filed in the San Francisco County Superior Court. These included a suit by a new interest group, Save the California Delta Alliance, and a suit brought by the California Water Impact Network, Friends of the River, California Sportsfishing Protection Alliance, and Center for Biological Diversity, among others. The final petition was brought by in-Delta interests, including the Central Delta and South Delta Water Agencies, and local agencies of the north Delta. These suits too allege numerous violations of CEQA.

The plethora of suits against the Delta Council implicates upcoming procedural hurdles in the litigation over the Delta Plan and Delta Plan PEIR. First, the cases will likely need to be at least partially consolidated, so they may be tried before a single judge based on a single administrative record. And second, the preparation of the administrative record itself may be a hurdle because some petitioners have elected to prepare the record themselves, while others have requested that the agency prepare the record. In short, the filing of these seven lawsuits indicates that the Council will have to travel down a long and litigious road in order to implement the Delta Plan as directed by the State Legislature.

On July 17, 2012, the Ninth Circuit Court of Appeals released its decision in Natural Resources Defense Council v. Salazar, 2012 U.S. App. Lexis 14614 (Case No. 09-17661) affirming Judge Oliver Wanger’s decision in the Eastern District of California, finding that the United States Bureau of Reclamation did not violate section 7(a)(2) of the federal Endangered Species Act by renewing 41 water supply contracts. In this case, plaintiffs argued the Bureau unlawfully renewed the water service contracts without conducting adequate consultation under Section 7(a)(2) of the ESA, and that the contract renewals jeopardized the existence of the Delta smelt.

Background and Procedure

The Bureau operates the Central Valley Project, which is a network of dams, reservoirs, and pumping facilities for regulating and distributing water from the Sacramento and San Joaquin River watersheds. California’s State Water Project operates within the same watershed, and is an analogue to the CVP.

The Bureau and the SWP have coordinated management of the CVP since the 1930’s when the Bureau assumed control of the CVP because California could not finance the project. To operate the CVP, the Bureau was required to obtain water rights under state law, but a dispute arose regarding the priority of pre-project water rights. The California Water Rights Board held hearings on the matter and issued a decision allowing the Bureau to manage CVP water if it first addressed the issue of senior water rights holders. In response to that decision, the Bureau entered into 142 settlement contracts, each for 40-year terms with some parties asserting senior water rights from 1964. The contracts guaranteed so-called “Settlement Contractors” a certain amount of base water, which could only be reduced by 25% in very dry years. The Bureau also entered into long-term contracts with a coalition of water service contractors who obtained water from the Delta-Mendota Canal (DMC Contractors).

In 2003, the Bureau prepared a biological assessment under the ESA regarding effects on the Delta smelt from the renewal of the contracts, and requested consultation with the Fish and Wildlife Service. In 2004, the Service issued concurrence letters, which concluded the contract renewals were not likely to adversely affect any listed species or their critical habitat. Following the decision in Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) (invalidating the regulatory definition of “destruction or adverse modification”), the Bureau reinitiated consultation with the Service.  In 2005, FWS reissued concurrence letters reaching the same conclusion.  The concurrence letters incorporated by reference sections of the biological opinion for the Long-Term CVP and State Water Project Operations Criteria and Plan (known as “OCAP”).  Following completion of the Service’s ESA consultation, the Bureau renewed contracts with both the Settlement Contractors and the DMC Contractors.

In 2005, plaintiffs filed suit challenging the 2005 OCAP biological opinion.  The lawsuit also included claims that the Bureau violated its legal obligations under Section 7(a)(2) of the ESA by renewing the DMC and Settlement Contracts. After reviewing the 2005 biological opinion, a district court held it was  unlawful for failing to adequately consider impacts to the Delta smelt’s critical habitat, failing to rely on the best available scientific information, and for not including mandatory mitigation measures to protect the Delta smelt. The district court remanded the 2005 OCAP biological opinion without vacatur, ordered the Bureau and the Service to re-consult, and imposed interim measures that automatically expired on the issuance of a new biological opinion.

The Service filed a new biological opinion in 2008 that concluded the CVP and SWP operations were likely to threaten the Delta smelt and identified “reasonable and prudent alternatives” to avoid jeopardy.  Following the issuance of the 2008 biological opinion, plaintiffs filed another complaint alleging that the Bureau had violated Section 7(a)(2) of the ESA by renewing the DMC and Settlement Contracts. Each side moved for summary judgment, and the district court granted summary judgment for the defendants. The District court found that plaintiffs lacked standing to challenge the DMC contracts, and that the Settlement Contracts were not subject to Section 7(a)(2).

The Ninth Circuit’s Opinion

The Ninth Circuit first rejected defendants’ argument that the issuance of the 2008 biological opinion by the Service rendered plaintiffs’ claims moot.  The court explained the claims were not moot because, unlike its prior cases where a new biological opinion clearly replaced the old opinion, in this case there was ongoing litigation regarding the validity of the 2008 opinion and a district court decision in a separate matter holding that parts of that 2008 opinion violated the ESA.   The Ninth Circuit also held the claims were not moot because it was unclear if the contracts at issue were considered in the 2008 opinion.

The Ninth Circuit then addressed plaintiffs’ standing to challenge the DMC contracts. The court determined plaintiffs failed to establish a causal connection between the threatened injury and the Bureau’s action because the DMC contracts included a shortage provision which expressly allowed the Bureau to take action to meet its legal obligations. These actions could include not delivering water to DMC Contractors if necessary in order to comply with the ESA. Therefore, the threatened injury, jeopardy to Delta smelt, would not be traceable to the contract renewals because the contracts expressly allowed for compliance with Section 7(a)(2). Based on this reasoning, the Ninth Circuit concluded the lower court properly determined the plaintiffs lacked standing to challenge the DMC contracts.

After addressing the DMC Contracts, the Ninth Circuit considered the applicability of Section 7(a)(2) to the Settlement Contracts. With respect to the Settlement Contracts, the Ninth Circuit ruled there was no “discretionary action” triggering the duty to consult under section 7(a)(2) of the ESA.  Citing the Supreme Court’s decision in Nat’l Ass’n. of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 666 (2007), the Court explained that “Section 7(a)(2) of the ESA only applies to federal agency action ‘in which there is discretionary Federal involvement or control.’”  The Ninth Circuit, therefore, held the lower court properly determined that the Bureau’s renewal of the Settlement Contracts was not subject to Section 7(a)(2) because the action was not discretionary.

The court explained that under the Reclamation Act of 1902, the Bureau must operate the CVP in conformity with California water law, including full recognition of any vested right acquired under California law. Under the state law, senior appropriative water rights must be satisfied before junior water rights. Under the Settlement Contracts, the Bureau is required to deliver base supply water that may only be reduced in critically dry years. This duty to deliver is mandatory, and under the Central Valley Project Improvement Act, the Bureau is required to renew these contracts upon request. Due to this requirement, the Bureau’s discretion was limited with regard to the Settlement Contracts such that Section 7(a)(2) of the ESA was not triggered. Based on this reasoning and lack of standing, the Ninth Circuit upheld the district court’s grant of summary judgment in favor of the defendants. (By John Wheat)