The 9th Circuit Court of Appeals ruled in early August it will not rehear a challenge by environmental groups on California’s Central Valley Project water contracts. The groups have long argued the water contracts between the Bureau of Reclamation and senior water rights holders in the Sacramento River are detrimental to the Sacramento-San Joaquin Delta and the delta smelt fish.
In a May 23 opinion, the 9th Circuit Court of Appeals upheld a federal judge’s finding that the Bureau of Reclamation (Reclamation) and the Fish and Wildlife Service (USFWS) did not violate the Administrative Procedure Act (APA) and Endangered Species Act (ESA) by renewing government water supply contracts.
The Natural Resources Defense Council, San Francisco Baykeeper, Friends of the River, The Bay Institute, Pacific Coast Federation of Fishermen’s Associations and the Winnemem Wintu Tribe (collectively, NRDC) filed a petition for rehearing on July 8.
A panel of three judges for the appeals court rejected the rehearing on Aug. 1, and no other court judges asked for a vote to bring the case before a full panel. The court’s decision could potentially end the nearly two-decade-long argument over the project’s water contracts.
History
Environmental groups have alleged for nearly 20 years that Central Valley Water Project contracts with agricultural, municipal and industrial water users endanger the delta smelt fish and Chinook salmon.
The Central Valley Water Project, operated by Reclamation, is the largest federal water management project in the country. Reclamation entered into settlement contracts in the 1960s with Sacramento River contractors, as well as contracts to supply water from the Delta-Mendota Canal. Upon the contracts’ expiration in the 2000s, Reclamation began consultation to renew the contracts, along with reviewing the potential environmental effects.
Since then, there has been extensive litigation.
“This case is of exceptional importance because the majority opinion effectively immunizes many long-term water contracts from further ESA review and compliance, despite their profound impact on species on the brink of extinction,” NRDC wrote in its July request for rehearing.
“The majority’s holding regarding discretion is inconsistent with multiple circuit cases applying the ESA consultation requirement to Reclamation contracts throughout the West.”
A rehearing was therefore requested to “restore uniformity in the court’s decisions,” the groups wrote in the petition.
Additional background
Reclamation’s settlement contracts in the 1960s provided Sacramento River and Delta-Mendota Canal water users nearly 2.5 million acre-feet of water annually for 40 years. The renewed contracts in 2005 extended the contracts an additional 40 years.
During Reclamation’s reviews ahead of the 40-year extension, environmental groups alleged the agency and USFWS failed to properly perform an ESA consultation to see how renewals would affect delta smelt fish. In addition, the groups contented the agencies failed to consider the effects of renewing the contracts through 2045. NRDC also added a claim that Reclamation must redo its consultation on fish effects, as new information showed contracts also negatively affected Chinook salmon.
In its May opinion, the court rejected the petitioners’ argument that agencies failed to evaluate the effects of renewing the contracts through 2045.
“Given that Reclamation has continuously supplied water to the Sacramento River contractors since the 1960s under contracts with substantially identical terms and amounts, FWS properly considered the settlement contracts as part of this ongoing agency action rather than analyzing the settlement contracts in 40-year increments,” Judge Sandra Ikuta wrote for the majority.
In addition, the court ruled Reclamation and USFWS did not violate the APA or ESA when evaluating effects on fish.
“The ESA does not require the action agency (here, Reclamation) to consider a no-action alternative or any other alternative to its proposed action,” Ikuta said. “The only question is whether the action agency’s proposed action is likely to have an adverse effect on listed species or critical habitats.” — Anna Miller, WLJ managing editor
