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Federal Court Dismisses Premature Challenge to Bay Delta Conservation Plan

By: Paul S. Weiland, Robert D. Thornton

The state-federal effort to fix the collapsing San Francisco Bay Delta system has survived the first of what promises to be many legal challenges. On September 8, 2009, the United States District Court for the Eastern District of California dismissed a lawsuit by in-Delta farming interests seeking to derail the Bay Delta Conservation Plan ("BDCP") – a plan that is attempting to realize the co-equal goals of environmental protection and a sustainable water supply for millions of Californians. Central Delta Water Agency v. U.S. Fish and Wildlife Service, No. 09-861 (E.D. Cal. Sept. 8, 2009). While it is almost certain that the Delta interests will continue their efforts to derail the BDCP, this decision will allow the conservation planning process to proceed.

The defendants form an unprecedented array of federal and state wildlife and natural resource agencies, numerous water agencies, the California Farm Bureau Federation, a power generating company, and a number of environmental groups. The defendants, who are frequently opponents in legal battles over the Delta, are collaborating to develop a BDCP capable of protecting sensitive species and their habitat in the Delta while securing an adequate, sustainable supply of water for two thirds of all Californians and millions of acres of prime agricultural land. Dissatisfied with the early planning efforts, plaintiffs Central Delta Water Agency and South Delta Water Agency filed a lawsuit alleging violations of the National Environmental Policy Act ("NEPA"), the California Environmental Quality Act ("CEQA"), the California Natural Communities Conservation Planning Act, and the California Bagley-Keene Open Meeting Act.

A novel aspect of plaintiffs' lawsuit was their effort to pursue legal claims even before any agency had approved the plan and even before the circulation of a draft BDCP or any environmental documents. The district court rejected plaintiffs' argument that issuance of a notice of intent ("NOI") to prepare an environmental impact statement ("EIS") presents a case that is ripe for review by the courts. Instead, the court held that plaintiffs lack standing to pursue their NEPA claims because there is no plausible basis for determining that the alleged defects in the NOI or other early steps of the NEPA process will actually harm their concrete interests. The court also concluded that plaintiffs' NEPA claims are not ripe because further factual development will clarify whether plaintiffs have viable legal claims and allowing judicial review at this early stage in the administrative process would be enormously disruptive.

Having dismissed the only federal claims (i.e., the NEPA claims), the court determined it lacked supplemental jurisdiction over the remaining state law claims. Therefore, the federal court will soon issue an order disposing of the entire matter. The legal dispute will now move into state court, however, where plaintiffs have filed an action alleging the same state law claims raised in the federal suit. Fortunately, the federal court's reasoned explanation why the NEPA claims are premature should provide helpful guidance to the state court. The ruling also has helpful broader application as a cautionary tale for those who would attempt to throw up roadblocks to projects that are in the planning stages.

Click here for a copy of the court's decision.

Paul Weiland was lead counsel for Kern County Water Agency in Central Delta Water Agency v. U.S. Fish and Wildlife Service. He is Chair of the Land Use Practice Group at Nossaman and can be reached at 949.833.7800 or

Robert Thornton is one of the foremost natural resources and Endangered Species Act lawyers in the country and has developed regional conservation plans that protect hundreds of thousands of acres. He can be reached at 949.833.7800 or

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