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Natural Resources Defense Council v. Jewell

ELR Citation: 44 ELR 20089
Nos. 09-17661, (9th Cir., 04/16/2014)

The Ninth Circuit held that the Bureau of Reclamation should have consulted with FWS or NMFS on impacts to the threatened delta smelt prior to renewing long-term water contracts pertaining to California's Central Valley Project. ESA §7(a)(2) requires such consultation so long as the agency has “some discretion” to take action for the benefit of a protected species. Based on the court's review of the challenged contracts, the court concluded that the Bureau retained “some discretion” to act in a manner that would benefit the delta smelt. For example, it is at least plausible that a decision not to renew the contracts could benefit the delta smelt and their critical habitat. The Bureau was therefore required to engage in §7(a)(2) consultation prior to renewing the contracts.