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Natural Resources Defense Council v. Salazar

ELR Citation: 42 ELR 20153
Nos. 09-17661, (9th Cir., 07/17/2012)

The Ninth Circuit held that the Bureau of Reclamation did not violate the ESA when it renewed 41 water service contracts in California despite concerns over the endangered delta smelt. Conservation groups argued that the Bureau renewed the contracts without conducting an adequate consultation under ESA §7(a)(2) and that the contracts jeopardize the existence of the delta smelt. The groups, however, lack standing to challenge contracts entered into with users who obtain water from the Delta-Mendota Canal (DMC). The DMC contracts include a shortage provision that expressly allows the Bureau to take any action—including not delivering water to DMC contractors—to meet its ESA obligations. Because there is no threatened injury, there is nothing to redress. In addition, ESA §7(a)(2) does not apply to the Bureau’s renewal of contracts with parties who hold existing water rights senior to the Central Valley Project. ESA §7(a)(2) only applies to federal agency action in which there is discretionary federal involvement or control. Here, the Bureau's actions are constrained by California water law and the contract rights of the senior water rights holders.