In accordance with the Final Court order and the National Environmental Policy Act (NEPA), the Final Environmental Impact Study (EIS) for the 2008 U.S. Fish and Wildlife Service Biological Opinion and the 2009 National Marine Fisheries Service Biological Opinion was released by the Bureau of Reclamation on November 23, 2015. The Draft EIS was available for public review from July 31, 2015 – September 29, 2015. Four public meetings were held throughout the state during September 2015.
In January 2016, the Bureau released its record of decision, stating that the agency intends to continue to implement the delta smelt biological opinion.
In 2008, the U.S. Fish & Wildlife Service (FWS) released a Biological Opinion (BiOp) concluding that continued operation of the Central Valley Project and the State Water Project both jeopardized the continued existence of the delta smelt and adversely modified its critical habitat in the Delta.
In 2009, the Coalition joined with the Kern County Water Agency (KCWA) to challenge the FWS BiOp for delta smelt (Smelt BiOp) that made permanent, and in some instances increased, the pumping restrictions imposed by Judge Oliver Wanger in 2007.
Water user plaintiffs, including the Coalition, were successful in challenging each of the major actions included in the biological opinion that have resulted in significant restrictions on water deliveries. In December 2010, Judge Wanger issued a decision declaring the Smelt BiOp and reasonable and prudent alternative prepared by the FWS invalid. Judge Wanger held that the federal government should have considered impacts on the human environment and properly justified its actions when developing and implementing the pumping restrictions, stating:
“FWS has failed to provide lawful explanations for the apparent over appropriation of project water supplies for species protection. In view of the legislative failure to provide the means to assure an adequate water supply for both the humans and the species dependent on the Delta, the public cannot afford sloppy science and uni-directional prescriptions that ignore California’s water needs.”
This decision requires the FWS to develop a new biological opinion for delta smelt. The court must still decide on interim project operations until a new biological opinion is complete, and as such, the amount of water to be delivered remains uncertain.
The court’s decision has been appealed to the Ninth Circuit Court of Appeals. The Ninth Circuit found that the lower court inappropriately created a “battle of the experts” in violation of the Administrative Procedure Act’s (“APA”) “arbitrary and capricious” standard of review.
On March 13, 2014, the Ninth Circuit Court of Appeals reversed the decision issued by the Eastern District court.
Essentially this standard is in place to prevent a court from substituting its own judgement for that of the expert agency involved. The Endangered Species Act requires the implementing agencies to use the “best scientific and commercial data available” when developing a Biological Opinion. The Ninth Circuit held that this standard “merely prohibits [an agency] from disregarding available scientific evidence that is in some way better than the evidence it relies on.” However, the court may not determine whether the agency applied the best analysis of the science, or if the decision could have had a different outcome.
Essentially the court ruled that the 2008 FWS BiOp was valid.
As a result of the Ninth Circuit Court’s ruling, On May 5, 2015 the Eastern District court issued a final ruling stating, among other things, the following:
- Reclamation violated National Environmental Policy Act (NEPA) by failing to perform any NEPA analysis prior to provisionally adopting and implementing the 2009 Salmonid BiOp
- As a result of the Ninth Circuit ruling, previous rulings from the Eastern District court regarding NMFS are no longer subject to the jurisdiction of the Eastern District court
- Reclamation must comply with obligations under NEPA and issue a finding of no significant impact or record of decision by no later than December 2016
State Water Contractors appealed the decision to the Supreme Court, but the Supreme Court declined review in January 2015.
Fall X2 Injunction
X2 is the location in the Delta where the salinity of the water is 2 parts per thousand. It is used as a proxy measure of the overall ecosystem health of the Delta and for delta smelt habitat. The delta smelt biological opinion establishes a requirement (the Fall X2 Action) in the fall months that X2 be located at 74 kilometers in wet years and 81 kilometers in above normal years. To achieve this requirement, the Water Project are required to both release water from upstream reservoirs and reduce south Delta water exports.
In August 2011, Judge Oliver Wanger enjoined implementation of the Fall X2 Action at the 74 km marker proposed by federal agencies in the 2008 delta smelt biological opinion, which was deemed invalid by Judge Wanger in late 2010. The Court’s decision provided that the Fall X2 Action may not be implemented at 74 km as proposed by the federal wildlife agencies under the delta smelt biological opinion; rather the Bureau was authorized to impose the requirement at 79 km in fall 2011. This was a positive decision for water users as it improved water deliveries. There is no evidence that the decision did any harm to delta smelt.
Subsequently, the Ninth Circuit overturned the lower court decision deeming the basis for the Fall X2 Action invalid.
Collaborative Science and Adaptive Management Program
In April 2013, while both the delta smelt and salmonid decisions were on appeal, the district court issued an order establishing the Collaborative Science and Adaptive Management Program (CSAMP) to allow the parties to pursue a collaborative science program to help inform development and implementation of future biological opinions. The CSAMP, which is advised by the Collaborative Adaptive Management Team (CAMT), is intended to facilitate the development of common understandings of science, and to increase transparency through information sharing and a commitment to work together. The CSAMP and CAMT processes are currently ongoing.