Judges Uphold Federal Protection for Fish in Dispute Over Calif. Water Management

By Jeremy P. Jacobs, E&E reporter
3/13/2014 2:10:51 PM

Federal appellate judges today upheld the Fish and Wildlife Service's finding that a California water project imperils an endangered fish, in a ruling that judges acknowledge would have "enormous practical implications" for the state's water management.

The San Francisco-based 9th U.S. Circuit Court of Appeals reversed a lower-court ruling that invalidated the Fish and Wildlife Service's biological opinion on the delta smelt, which concludes that the Central Valley Project and State Water Project pose a threat to the tiny fish.

Together, the two projects serve 200,000 water customers in Central and Southern California, including the country's most diverse agricultural region.

In 2008, the Bureau of Reclamation asked the Fish and Wildlife Service to analyze the effects on the smelt of the projects, which move water from Northern to Southern California through a complex system of pumps, dams and reservoirs.

Fishing boat along the California coast. (Credit: Flickr/Damien Gadal)

The resulting biological opinion -- the most complex ever issued -- concluded that the project threatens the 2- to 3-inch fish, whose population has plummeted to the point of near extinction. Fish and Wildlife recommended alternatives to protect the smelt, including reducing water exported to Southern California. The bureau and state authorities indicated they would comply with the recommendations in accordance with the Endangered Species Act.

Water districts, contractors and agricultural consumers quickly filed several lawsuits, which were consolidated into challenges to the biological opinion, as well as Interior and other state and government agencies. A district court threw out the biological opinion, holding that it relied on faulty science.

The 9th Circuit, however, largely reversed that decision, while acknowledging the "enormous practical implications" of its ruling.

"We are acutely aware of the consequences of this proceeding," Judge Jay Bybee wrote. "As a court, however, we are limited in our review of matters within the expertise of the agency."

Bybee spent considerable time explaining that the court is bound by the law and court precedents, which justify the government's actions even if the effects seem unfair.

"The law prohibits us" from making utilitarian judgments "to balance the smelt's interest against the interests of the citizens of California," Bybee wrote.

Delta smelt are endemic to the San Francisco Bay-Delta region. They were listed as threatened in 1993 and endangered in 2010. The Fish and Wildlife Service said pumping activities have harmed the species, as well as increased saltwater intrusion into the ecosystem.

Conservationists also say the fish is particularly vulnerable to deteriorating environmental conditions.

Click here for the opinion.

Reprinted from ClimateWire with permission from Environment & Energy Publishing, LLC. 202-628-6500.

E&E Publishing is the leading source for comprehensive, daily coverage of environmental and energy issues.

Click here to start a free trial to E&E's information services.

Continue Reading on EENews.com >