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San Luis & Delta-Mendota Water Authority v. Jewell

ELR Citation: 44 ELR 20056
Nos. 11-15871 et al., (9th Cir., 03/13/2014)

The Ninth Circuit, in a 170+ page opinion, reversed in part and affirmed in part a lower court decision invalidating the FWS' 2008 biological opinion (BiOp) that concluded that the Central Valley Project (CVP) would jeopardize the continued existence of the delta smelt and its habitat. The project supplies water originating in northern California to agricultural and domestic consumers in central and southern California. The source of the water—the estuary at the confluence of the San Francisco Bay and the Sacramento-San Joaquin Delta—is the lone habitat for the delta smelt, a tiny fish listed as threatened under the ESA. In its BiOp, FWS concluded that CVP operations would threaten the delta smelt and, as required by the ESA, proposed “reasonable and prudent alternatives” that would reduce the water exported from northern to southern California to ameliorate the effect on the smelt. Various water districts, water contractors, and agricultural consumers brought suit to prevent the federal agencies from implementing the BiOp and its proposed alternatives. The lower court ruled in their favor, holding that the BiOp was arbitrary and capricious. But the appellate court disagreed. The BiOp's reliance on raw salvage figures to set the upper and lower flow limits was not arbitrary and capricious. Nor was the BiOp's incidental take statement arbitrary and capricious because it included adequate explanation and support for its determinations. Likewise, the record supported the BiOp's conclusions regarding the indirect effects of project operations. In addition, FWS did not violate the ESA by not separating the discretionary from nondiscretionary actions when it set the environmental baseline. And the Bureau of Reclamation did not violate the ESA by accepting the 2008 BiOp. But the court agreed with the lower court that NEPA does not require the FWS to prepare an EIS in conjunction with the issuance of the BiOp. It also agreed with the lower court's ruling that the Bureau of Reclamation's provisional adoption and implementation of the BiOp triggered its obligation to comply with NEPA. It therefore affirmed the lower court's remand order directing the Bureau to complete an EIS evaluating the effects of its adoption and implementation of the BiOp.