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San Luis & Delta-Mendota Water Authority v. Locke

ELR Citation: 44 ELR 20276
Nos. 12-15144 et al., (9th Cir., 12/22/2014)

The Ninth Circuit upheld the National Marine Fisheries Service's (NMFS') biological opinion regarding the impact of continuing water extraction in the California Central Valley on certain threatened and endangered salmonid species. In its biological opinion, NMFS determined that the Bureau of Reclamation's proposed water project in the Central Valley would jeopardize some of the Delta’s endangered salmonids. To remedy this problem, NMFS required the Bureau to change the way it pumps water out of the Central Valley’s rivers. A number of groups that depend on the Central Valley’s water sued to halt this change. A district court invalidated certain components of the biological opinion, but the appellate court disagreed, concluding that the lower court did not give NMFS the substantial deference it was due under the APA. The court held that NMFS acted within its substantial discretion when it used raw salvage data instead of data scaled to fish population to set flows in two rivers. It also held that NMFS' jeopardy opinion components were not arbitrary and capricious as they pertained to the winter-run Chinook, the Southern Resident orca, the steelhead critical habitat, and the impact of indirect mortality factors on the listed species. Similarly, the biological opinion’s challenged reasonable and prudent alternative actions were not arbitrary and capricious. The court therefore reversed the lower court on these matters, thereby upholding the biological opinion in its entirety. But the court affirmed other portions of the lower court's opinion; specifically, NMFS did not need to distinguish between discretionary and non-discretionary actions, the biological opinion's indirect mortality factors were direct effects under the ESA, and the Bureau of Reclamation was not independently liable under the ESA. The court therefore affirmed in part and reversed in part the district court’s summary judgment and remanded for entry of summary judgment in favor of the federal agencies and intervenor-environmental groups.