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San Luis & Delta-Mendota Water Authority v. Salazar

ELR Citation: 41 ELR 20124
Nos. No. 10-15192, (9th Cir., 03/25/2011)

The Ninth Circuit held that ESA §§7 and 9, as applied to the California delta smelt, do not violate the Commerce Clause. In 2008, the FWS issued a biological opinion (BiOp) to the Bureau of Reclamation concerning two federal and state water diversion projects in California's Central Valley. Because the BiOp concluded that the projects were likely to jeopardize the continued existence of the delta smelt and adversely modify its habitat, the FWS included a Reasonable and Prudent Alternative and Incidental Take Statement in the BiOp requiring the Bureau to reduce water flows at certain times of the year. California nut growers filed suit, claiming that their orchards experienced substantially reduced water deliveries as a result of the FWS' decision. They argued that because the delta smelt is a purely intrastate species, and because it has no commercial value, ESA §§7 and 9 as applied in this case are invalid under the Commerce Clause. Although the growers have standing and their claims are ripe for review, their as-applied Commerce Clause challenge fails because the ESA bears a substantial relation to commerce. Congress has the power to regulate purely intrastate activity as long as the activity is being regulated under a general regulatory scheme that bears a substantial relationship to interstate commerce. There is no doubt that the ESA is "substantially related" to interstate commerce. The growers’ as-applied challenge to ESA §§7 and 9 therefore failed.