By Lorraine Bailey
In a ruling with "enormous practical implications" for central California's water supply, the 9th Circuit today upheld the finding that distribution of the San Francisco Bay-Delta estuary threatens endangered delta smelt.
A tiny fish native to the San Joaquin and Sacramento Rivers Delta Estuary, the delta smelt was declared endangered in 1993 and has been a source of much water-related controversy in the region for years.
In 2008, the Bureau of Reclamation requested a biological opinion from the U.S. Fish and Wildlife Service (FWS) on whether its water-reclamation projects, which supply central California's massive agricultural operations, threaten the delta smelt in violation of the Endangered Species Act.
When the FWS concluded that water reclamation for the Central Valley endangered the fish, it proposed "reasonable and prudent alternatives" in a 400-page opinion to reduce the water exported from northern to southern California through the Central Valley.
Several water districts and agricultural consumers sued to prevent the FWS from implementing the biological opinion, ultimately persuading a federal judge that the FWS repeatedly "ignored the best available science" and "has shown no inclination to fully and honestly address water supply needs beyond the species," even as it "interdict[s\ the water supply for domestic human consumption and agricultural use for over twenty million people who depend on the projects for their water supply."
But the 9th Circuit reversed Thursday, a year and a half after hearing arguments.
"We are acutely aware of the consequences of this proceeding," Judge Jay Bybee said, writing for the three-judge panel. "As a court, however, we are limited in our review of matters within the expertise of an agency."
Again he wrote, "We recognize the enormous practical implications of this decision."
The 157-page opinion nevertheless notes that Congress has afforded the delta smelt the highest protections under the Endangered Species Act, even if it may mean the sacrifice of millions of dollars in public funds spent on federal water projects.
"The law prohibits us from making 'such fine utilitarian calculations' to balance the smelt's interests against the interests of the citizens of California," Bybee said.
Kate Poole, a senior attorney with the Natural Resources Defense Council, said the ruling "reaffirmed the facts and recognized that science needs to guide our management of the Delta in order for our farms, cities and wildlife to thrive."
"Taking more water out of the Delta is not going to solve our problems," Poole said in a statement. "The emergency drought is a state-wide problem that affects all of us - from farmers to fisherman to the average citizen. And it's the drought, not the delta, that's affecting the water supply this year. That's why Delta fisherman and farmers support these protections - because their jobs and livelihoods depend on it."
The 9th Circuit affirmed the finding that implementation of the biological opinion requires the preparation of an environmental impact statement (EIS).
Implementing the biological opinion (BiOp) will be a "major federal action significantly affecting the quality of the human environment," Bybee wrote, and the defendants do not challenge that assertion.
"At this point, we can only speculate about what kind of significant effects will eventually result from implementation of the BiOp because reclamation has not yet completed its EIS," he added. "But it is beyond dispute that Reclamation's implementation of the BiOp has important effects on human interaction with the natural environment. ... We recognize that the preparation of an EIS will not alter Reclamation's obligations under the ESA [Endangered Species Act\. But the EIS may well inform reclamation of the overall costs - including the human costs - of furthering the ESA."
Opponents of the ruling quickly noted that it will exacerbate California's drought conditions.
"This decision is terribly disappointing and bodes ill for farmers, farm laborers, and millions of other Californians dependent on a reliable water supply," Damien Schiff, an attorney for California growers, said in a blog post.
A 9th Circuit en banc ruling on the legality of 41 Central Valley water contracts is pending.