The court’s denial may well mean the end of a 20-year-old water management battle.
By Edvard Pettersson, Courthouse News Service
The Ninth Circuit Court of Appeals on Thursday said it won’t rehear a challenge to long-term water contracts with California’s Central Valley Project brought by a group of environmental organizations concerned about the welfare of endangered delta smelt.
After a three-judge panel denied the organizations’ appeal in May, none of the circuit’s other judges asked for a vote to bring the petition before an 11-judge panel, the San Francisco-based appellate court said.
The denial of a rehearing may very well mean the end of the almost 20-year-old lawsuit over the renewal in 2005 of the long-term contracts between U.S. Bureau of Reclamation, which operates the Central Valley Project, the largest federal water management project in the United States, and agricultural, municipal and industrial water users who hold senior water rights to the Sacramento River.
Conservationists have long claimed that diversion of massive amounts of water from Northern California to Central and Southern California, through both the Central Valley Project and California’s State Water Project, is detrimental to the sustainability of the Sacramento-San Joaquin Delta, the west coast’s largest estuary and the habitat of the tiny delta smelt.
The “smeltdown in the Delta,” as the extinction trajectory of delta smelt is known according to the Center for Biological Diversity, has left the once-abundant species in critical condition because of record-high water diversions, pollutants and harmful nonnative species that thrive in the degraded Delta habitat.
“This case is of exceptional importance because the majority opinion effectively immunizes many long-term water contracts from further ESA review and compliance, despite their profound impact on species on the brink of extinction,” the Natural Resources Defense Council and other plaintiffs said in their petition for en banc rehearing. “The majority’s holding regarding discretion is inconsistent with multiple Circuit cases applying the ESA consultation requirement to Reclamation contracts throughout the West.”
In 1964, the so-called settlement contractors signed 40-year contracts with the Bureau of Reclamation to resolve protests against the construction and operation of the Central Valley Project, a network of dams, reservoirs, canals, hydroelectric power plants and other facilities that stretch for 400 miles through Central California.
The contracts enable Reclamation to operate the Central Valley Project in exchange for providing the settlement contractors, who have senior rights to the Sacramento River’s water, with a stable supply of water. The renewed contracts extend that arrangement for another 40-year term.
In its May opinion, a split Ninth Circuit upheld the findings of a federal judge in Fresno, California, that the U.S. Fish and Wildlife Service and Bureau of Reclamation did the the legally required analysis and consultation under Endangered Species Act in support of the contract renewals.
In its lengthy and quite technical analysis of the federal agencies’ procedures to determine the impact of the water contracts on the delta smelt, the panel majority rejected the argument that it was arbitrary and capricious for Fish and Wildlife to issue a 2015 letter of concurrence because it failed to consider the effect of renewing the so-called settlement contracts through 2045.
“Given that Reclamation has continuously supplied water to the Sacramento River contractors since the 1960s (the original settlement contracts date back to 1964) under contracts with substantially identical terms and amounts, FWS properly considered the settlement contracts as part of this ongoing agency action rather than analyzing the settlement contracts in 40-year increments,” U.S. Circuit Judge Sandra Ikuta, a George W. Bush appointee, wrote for the majority.
It was the second time the environmentalists’ challenge to the 2005 water contracts came before the Ninth Circuit. In 2014, an en banc panel ruled that Fish and Wildlife scientists must have a say on the renewal of contracts that could affect the endangered delta smelt.
Contrary to the government’s argument, the appellate court said at the time — reversing the opinion of three-judge panel two years earlier — that a new biological opinion released in 2008 did not moot the case. The court also found that the trial judge in Fresno misinterpreted the consultation mandate.
The delta smelt’s survival has become a recurrent issue in state and federal lawsuits, in particular since the historic drought that’s been plaguing California and the western U.S. for most of the last two decades has stressed the state’s limited water resources and pitted farmers against environmentalists.
In 2015, the U.S. Supreme Court turned down appeals by California water agencies and farmers to overturn Sacramento-San Joaquin River pumping limits that protect the delta smelt — a win for environmentalists and the 3-inch-long fish.
