On July 25, 2016 the Ninth Circuit Court of Appeals ruled in favor of the Pacific Coast Federation of Fishermen’s Associations (“PCFFA”) and the San Francisco Crab Boat Owners Association in their longstanding battle with the United States Bureau of Reclamation and San Joaquin Valley agribusinesses that divert millions of acre feet of water annually from the Sacramento-San Joaquin Delta. Following four years of court proceedings, the Court of Appeals ruled that the Bureau of Reclamation had violated the National Environmental Policy Act (“NEPA”) by failing to consider reducing the quantity of water diverted from the Delta for farming uses and increasing the Delta’s fresh water flows to San Francisco Bay to restore its imperiled salmon and wildlife.
The Court held that in approving eight 2-year contracts for the delivery of up to 1.2 million acre feet of water annually from the Delta to Central Valley water districts, Reclamation had failed to consider the alternatives of reducing the quantity of water delivered, or terminating the contracts altogether and delivering no water. The Court stated that “Reclamation’s decision not to give full and meaningful consideration to the alternative of a reduction in maximum interim contract water quantities was an abuse of discretion.” Opinion at p. 6. The Court “reject[ed] Reclamation’s argument that the contracts themselves mandated [their] renewal,” pointing out that “NEPA imposes obligations on agencies” to consider less impactful alternatives, and Reclamation “may not evade these obligations by contracting around them.” Opinion at p. 5.
The Court also rejected Reclamation’s arguments that reducing the quantity of water delivered under the contracts was infeasible, and agreed with the Fishing Groups that “Reclamation acted unreasonably by relying on stale water needs data.” Opinion at p. 7. The Fishing Groups had pointed out that Reclamation had improperly assumed that irrigation water still needed to be delivered to vast tracts of land contaminated by selenium and other pollutants in the western and southern San Joaquin Valley.
The Fishing Groups were elated at the Court’s ruling. PCFFA Executive Director Tim Sloane stated that “The Court’s decision sends the message that NEPA requires federal agencies to consider alternatives that would reduce the environmental impact of their actions.” He added that “We are running out of time to save our salmon. Populations are crashing and commercial fishermen are losing their livelihoods. Reclamation’s refusal to consider reducing diversions of water from the Delta in order to save our fish from extinction was irresponsible, and its decision to do so without complying with NEPA was simply outrageous.”
Stephan Volker, attorney for the Fishing Groups, stated that “the courts have once again come to the rescue of the Bay-Delta and its beleaguered fisheries. We commend Judges Silverman, Fisher and Tallman for their courageous action in upholding the law and enforcing NEPA’s lofty requirements.” Mr. Volker added that “This ruling pulls the rug out from underneath the Governor’s so-called WaterFix project, because the WaterFix assumes incorrectly that Reclamation must strive to deliver the ‘full contract amounts’ under its interim contracts. That assumption violates federal law, as the Ninth Circuit clearly holds in this ruling.”
The Court’s Ruling filed July 25 is attached in PDF format. Additional documents pertaining to the litigation can be obtained from the Volker Law Offices.