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Federal District Court Decision Could Exacerbate Looming California Water Supply Crisis

By: Paul S. Weiland, Robert D. Thornton
04/23/08

In a decision that is likely to exacerbate further the State’s water supply crisis, on April 16, 2008, the United States District Court for the Eastern District of California upheld a challenge to the biological opinion issued by the National Marine Fisheries Service (NMFS) regarding the impact of the Central Valley and State Water Projects on three salmon and steelhead runs in California. The Projects are the major source of water for 25 million Californians and to the State’s agricultural sector. Pacific Coast Federation of Fisherman’s Associations v. Gutierrez, No. 06-245 (E.D. Cal. April 16, 2008). The court’s decision follows a prior decision, issued approximately one year earlier, that invalidated the biological opinion of the Fish and Wildlife Service (FWS) for the Projects. Natural Resources Defense Council v. Kempthorne, No. 05-1207 (E.D. Cal. May 25, 2007). The Court’s prior decision resulted in decreased water supplies, and this decision could further reduce supplies.

Plaintiff sports fishing and environmental groups challenged the October 22, 2004, biological opinion issued by NMFS pursuant to the consultation requirements of the ESA. The biological opinion and accompanying incidental take statement authorize operation of federal and state facilities that supply water to more than 25 million Californians from northern, central and southern California. Plaintiffs alleged that both NMFS and the U.S. Bureau of Reclamation (BuRec) violated the Endangered Species Act.

The court concluded that that NMFS’ finding that the Projects would not cause jeopardy to the Sacramento River winter-run Chinook salmon, Central Valley spring-run Chinook salmon and Central Valley steelhead, nor result in adverse modification of the critical habitat of these species, was arbitrary in light of the facts before NMFS at the time it made its decision. Federal defendants agreed with the court in some respects, for example, admitting that further explanation is needed for the no jeopardy conclusions for the three species.

The court also agreed with the plaintiffs that the biological opinion is invalid because NMFS failed to analyze climate change. Federal defendants acknowledged a lack of analysis in the biological opinion. The court noted a "total failure to address, adequately explain, and analyze the effects of global climate change on the species." Slip Op. at 127.

On a number of other issues, the court denied plaintiffs’ claims. Noteworthy among these is the sufficiency of NMFS’ adaptive management plan and mitigation measures. The court noted that the action-mitigation measures are made part of the terms and conditions of the biological opinion and enforceable. Slip Op. at 127-28. The court contrasted the biological opinion here with the biological opinion reviewed in Natural Resources Defense Council v. Kempthorne. The court stated whereas in the latter case the biological opinion had no finite standards which were enforceable through the incidental take statement, in this case the mitigation measures are definite and sufficiently certain to be enforceable. Id. at 128, 134.

The court has yet to determine the appropriate remedy for the legal violations identified, but it is possible that the remedy will involve further restrictions on water exports from the Delta until NMFS issues a new biological opinion. Irrespective of the contents and conclusions of that new biological opinion, it is certain that dissatisfied parties will turn to the courts to overturn the determination made by NMFS.

Paul Weiland is the Land Use Practice Group Leader at Nossaman. He counsels clients regarding environmental and land use matters and litigates such matters in trial and appellate courts under a variety of statutes, including the Endangered Species Act. He can be reached at (949) 833-7800 or pweiland@nossaman.com.

Robert Thornton has practiced environmental law for over twenty-eight years. He represents landowners, resource developers, and public agencies on a variety of environmental matters and is nationally recognized as an expert on the Endangered Species Act and regional habitat conservation plans. He can be reached at (949) 833-7800 or rthornton@nossaman.com.

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