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Federal District Court Decides That Fish And Wildlife Service Violated Endangered Species Act By Failing To Address Climate Change During Section 7 Consultation

By: Paul S. Weiland, Robert D. Thornton

On May 25, 2007, the United States District Court for the Eastern District of California upheld a challenge to the biological opinion issued by the U.S. Fish and Wildlife Service following consultation under section 7 of the Endangered Species Act (ESA) for the Central Valley and State Water Projects, which divert water from the Sacramento-San Joaquin Delta to central and southern California. Natural Resources Defense Council v. Kempthorne, No. 05-1207 (E.D. Cal. May 25, 2007). Two facets of the court’s decision are likely to have dramatic implications for future consultations and other actions under the ESA: (1) the determination that the biological opinion is unlawful because the Service failed to address the issue of climate change and (2) the conclusion that an adaptive management program that does not specify enforceable mitigation actions that will occur under prescribed circumstances is unlawful.

Environmental plaintiffs challenged the biological opinion for current operations of the Central Valley Project and State Water Project and certain planned future actions for the Projects on numerous grounds under section 7(a)(2) of the ESA. The court’s decision includes analysis of many issues that arise during the consultation process ranging from use of best scientific and commercial data available to analysis of indirect and cumulative effects. The decision highlights the difficulty of developing a defensible biological opinion for a complex, large-scale project, particularly a comprehensive, cross-regional water project.

Plaintiffs disputed the Service’s reliance on historical hydrological data to forecast the Projects’ impacts on the delta smelt and argued that adjustments are necessary to account for climate change given expert predictions of reduced water supplies. Absent such analysis, Plaintiffs argued that the Projects’ impacts could be compounded by hydrological and temperature changes resulting from climate change, thus leaving unanalyzed potentially adverse impacts to the delta smelt. In light of the foregoing, the court held that the Service "acted arbitrarily and capriciously by failing to address the issue of climate change in the [biological opinion]." Slip Op. at 84. The court explained that even if the biological opinion’s adaptive management plan adequately addressed categories of impacts that could be anticipated from climate change, such as water temperature change, it nonetheless would be deficient if it failed to discuss specifically "when and how climate change impacts will be addressed, whether existing take limits will remain, and the probable impacts on CVP-SWP operations." Id. The court declined, however, to provide any guidance on the weight the Service should give to the climate change issue in its analysis.

Plaintiffs also alleged that the biological opinion relies on uncertain, unenforceable mitigation measures to support its conclusion that the proposed action will not jeopardize the delta smelt. To protect the delta smelt, the biological opinion relies upon an adaptive management program – the delta smelt risk assessment matrix – that establishes a mandatory process triggered by defined threshold criteria but defers decisions about specific mitigation to a working group. The court notes the existence of a tension between the choice of a flexible adaptive management approach and the desire for enforceable, protective actions. The court concludes that mitigation is insufficiently certain to occur under the delta smelt risk assessment matrix program, thus undermining the Service’s "no jeopardy" determination, and invalidates the biological opinion for that reason. Slip Op. at 59.

Provided it stands the test of time, this district court’s decision is a watershed case regarding the intersection between the strictures of the Endangered Species Act and the emerging science of climate change. Furthermore, together with a recent state court decision that the State Water Project is operating in violation of the California Endangered Species Act, the district court’s decision may affect water deliveries to central and southern California.

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