On February 5, 2010, Judge Oliver Wanger of the United States District Court, Eastern District of California (Court) granted a temporary restraining order and preliminary injunction halting implementation of a Central Valley Project and State Water Project pumping restriction aimed at protecting endangered salmon. The effect of the injunction, however, was short-lived. Less than a week later, on February 10, 2010, Judge Wanger denied an application to enjoin a nearly identical pumping restriction aimed at protecting Delta smelt. The smelt pumping restriction became effective the day of the Court ruling and will likely last until March 2010.
On June 4, 2009 the National Marine Fisheries Service (NMFS) issued a biological opinion, pursuant to the federal Endangered Species Act (ESA), 16 U.S.C. § 1533, which addresses the impacts of coordinated operations of the federal Central Valley Project (CVP) and State Water Project (SWP) on the Central Valley winter-run and spring-run Chinook salmon, Central Valley steelhead, Southern Distinct Population Segment of Green Sturgeon, and Southern Resident Killer Whales (Salmon BO). The Salmon BO concluded that continued CVP and SWP operations are likely to jeopardize the continued existence of listed species and adversely modify certain of their critical habitat. The Salmon BO proposed, and Reclamation adopted, a reasonable and prudent alternative (RPA) that included certain provisions limiting the amount of water that can be pumped from the Delta during certain times. For example, Action VI.2.3 of the Salmon BO/RPA limits reverse flows in Old and Middle River (OMR) from January 1 to June 15 to levels no more negative than -2,500 to -5,000, depending on the number of listed species killed by pumping operations.
The federal Fish and Wildlife Service (FWS) issued a similar biological opinion nearly six months earlier, on December 15, 2008, which addressed the impacts of the coordinated projects on the threatened Delta smelt (Smelt BO). Like the Salmon BO, the Smelt BO concludes that continued operations of the projects would likely jeopardize the continued existence of the smelt, and proposed an RPA that includes similar flow restrictions applicable during an overlapping but different timeframe than the Salmon BO. For example, under Action 2 of RPA Component 1, FWS may set OMR flows between -1,250 and - 5,000 cfs to protect pre-spawning adult smelt from December to March.
Plaintiffs Westlands Water District, and San Louis Delta Mendota Water Authority (Water Agencies) sued FWS and NMFS challenging the validity of both biological opinions. In November 2009, the Court ruled in favor of Plaintiffs, finding that the Bureau of Reclamation failed to comply with the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., by failing to conduct an environmental assessment on the impacts to the human environment that will likely ensue from implementation of the Smelt BO/RPA. (See Judge Wanger Rules That Bureau of Reclamation Violated NEPA In Accepting and Implementing U.S. Fish & Wildlife Service’s Biological Opinion On Delta Smelt, by Brian Poulsen, December 8, 2009, available online at http://www.somachlaw.com/alerts.php?id=51.)
As a result of a series of storm events in mid to late January of this year, which brought significant precipitation to Northern California, and armed with data indicating that Delta conditions were favorable to the listed species, the Water Agencies sought a temporary restraining order (TRO) and preliminary injunction to halt the automatic implementation of Action IV.2.3 of the Salmon BO. At the time Plaintiffs brought this challenge, there was no indication that FWS would implement Action 2 of Component 1 of the Smelt BO / RPA. Thus, Plaintiffs’ initial TRO application was limited to the Salmon BO.
The Court quickly held a hearing on the TRO as a result of the “unexpected storm events” in January and February 2010, which “have made and are likely to continue to make available a potential source of water that could enhance CVP and SWP supply, but which will be ‘lost’ unless captured within the dates of the storms’ occurrence.”
Plaintiffs argued that NMFS violated the ESA in adopting the Salmon BO because RPA Action IV.2.3 is not supported by the best available science. Plaintiffs also argued that the BO violated NEPA because Reclamation failed to conduct an environmental analysis on the impacts to the human environment as a result of its adoption of the RPA.
In analyzing this claim, the Court deferred to the scientific judgments of NMFS and held that on the present record Plaintiffs have not established a likelihood of success on the ESA claim. On their NEPA claim, however, the Court held that, based on its previous finding in a companion case relating to the Smelt BO, the Bureau of Reclamation likely violated NEPA by failing to conduct an environmental assessment to determine the significant impacts to the human environment that may result from implementation of the RPA.
In analyzing whether the Plaintiffs will suffer irreparable harm, the Court concluded:
It is recognized that reduced deliveries caused by the 2009 Salmonid BiOp make up only a portion (the parties disagree as to the magnitude) of overall delivery reductions, to which severely dry hydrologic conditions and other legal constraints have and will continue to contribute. However, it is also undisputed that any lost pumping capacity directly attributable to the 2009 Salmonid BiOp will contribute to and exacerbate the currently catastrophic situation faced by Plaintiffs, whose farms, businesses, water service areas, and impacted cities and counties, are dependent, some exclusively, upon CVP and/or SWP water deliveries. The impacts overall of reduced deliveries include irretrievable resource losses (permanent crops, fallowed lands, destruction of family and entity farming businesses); social disruption and dislocation; as well as environmental harms caused by, among other things, increased groundwater consumption and overdraft, and possible air quality reduction.
Based on the number of fish “taken” by joint operations thus far, and the projected number for this year, the Court determined that enjoining Action IV.2.3 would not harm the species. Consequently, due to the low threat of harm to the species, and the substantial and irreparable harm Plaintiffs would likely face, the Court held that the harms weigh in favor of Plaintiffs. The Court granted Plaintiffs’ application for a TRO and enjoined enforcement of Action IV.2.3 of the BO for a period of 14 days.
Plaintiffs’ victory, however, was short-lived. On February 8, 2010, FWS announced that, based on the number of smelt found dead at the project pumping operations, it would implement Action 2 of Component 1 of the Smelt BO / RPA, restricting OMR flows to between -1,250 and - 5,000 cfs to protect pre-spawning adult smelt. Thus, notwithstanding their victory in the Salmon BO challenge, Plaintiffs would nevertheless be subject to nearly identical pumping restrictions. On February 10, 2009, the Court heard Plaintiffs’ motion on application for a TRO and preliminary injunction to halt implementation of Component 1/Action 2 of the Smelt BO/RPA. This time the Court ruled against Plaintiffs, finding that the harms weigh in favor of implementing the pumping restrictions to preserve the smelt.
Conclusions and Implications
During the brief window between the two decisions, CVP operations were pumping at full steam. As of February 10, 2010, pumping operations have scaled back, in compliance with the Smelt BO/RPA requirements. The Water Agencies may appeal the Court’s decision or pursue another TRO or preliminary injunction under another legal theory. In the meantime, both project operations will continue to operate under the provisions of the Smelt BO/RPA.