Ninth Circuit Requires Bureau of Reclamation to Consult with USFWS to Protect Delta Smelt

May 7th, 2014

By: Thomas Law Group



In another decision related to California’s delta smelt, the Ninth Circuit Court of Appeals in a unanimous en banc decision in NRDC v. Jewell, 2014 U.S. App. LEXIS 7063, reversed the district court’s summary judgment in favor of the defendants and held that Environmental Species Act (ESA) Section 7(a)(2) applies to the Bureau of Reclamation’s (Bureau) renewal of certain water allocation contracts for the Central Valley Project.

The Bureau is responsible for managing the Central Valley Project, which conveys water through the endangered delta smelt’s habitat in the California River Delta to millions of water users around the state. The Bureau entered into several contracts with water users related to the Central Valley Project and prepared an Operations Criteria and Plan (Plan) for renewal of those contracts in the early 2000s.

ESA Section 7(a)(2) requires federal agencies to consult with the United States Fish and Wildlife Service (FWS) or the National Marine Fisheries Service prior to undertaking any action that could affect an endangered or threatened species. Pursuant to this requirement, the Bureau consulted FWS regarding the Plan. FWS issued a Biological Opinion in 2004 and a second opinion in 2005 concluding that the Plan would not jeopardize the delta smelt. However, courts invalidated those two Biological Opinions. Relying on concurrence letters from FWS that were limited to the reasoning in these invalidated opinions, the Bureau renewed 159 contracts pursuant to the Plan in 2004 and 2005.

Plaintiff-Appellants, the Natural Resources Defense Council (NRDC) and other environmental groups, sued to compel the Bureau to consult with FWS under Section 7 of the Endangered Species Act regarding 41 of the renewed contracts.

Defendants first argued that NRDC’s case was moot because the Bureau subsequently consulted with FWS, which issued a 2008 Biological Opinion concerning the impacts of the Plan.  However, the 2008 Biological Opinion only concerned the general impacts of the Plan and did not address the impacts of the renewal of the 41 contracts challenged by the NRDC, which were renewed in 2004 and 2005. Therefore, the remedy NRDC sought in requiring consultation on the impacts of the specific contracts was still available and the case was not moot.

Defendants also contended that NRDC lacked standing because the injury was not fairly traceable to the Bureau’s procedural violation. The district court had reasoned that because some of the contracts absolved the Bureau of liability for failure to meet certain legal obligations such as ESA Section 7(a)(2) due to a water shortage, there was nothing more the Bureau could have done to protect the delta smelt and therefore, the procedural violation was not the cause of NRDC’s alleged injury. Citing Defenders of Wildlife v. United States EPA, the court held that for a procedural violation such as failure to comply with ESA Section 7(a)(2), plaintiffs need only demonstrate that compliance could protect their concrete interests. ((9th Cir. 2005) 420 F.3d 946 revd. in part on other grounds by Nat. Assn of Home Builders v. Defenders of Wildlife (2007) 551 U.S. 644.) The court found that adequate consultation and further negotiation of contracts could lead to greater protections for the delta smelt and as a result, NRDC had standing in the case.

Finally, the court held that the district court improperly concluded ESA Section 7(a)(2) did not apply to the contracts due to the water shortage provision. The district court had reasoned that Section 7(a)(2) did not require the Bureau to consult FWS because the Bureau’s discretion was “substantially constrained.” However, the proper standard that triggers consultation under Section 7(a)(2) is whether the agency retains “some discretion” – it does not turn on the degree of that discretion. (Citing Karuk Tribe of Cal. v. U.S. Forest Svc. (9th Cir.2012) 681 F.3d 1006, 1024-1025.) The original contracts gave the Bureau discretion to not renew the contracts at all, but even assuming the Bureau had been required to renew the contracts, nothing prevented the Bureau from taking other action to protect the delta smelt, such as changing the timing of water deliveries that would protect the delta smelt. As a result, because the Bureau retained “some discretion” to take action that benefited the species, it was required to consult with FWS pursuant to Section 7 of the ESA regarding the renewal of the challenged contracts.

KEY POINT

To have standing to challenge alleged procedural violations such as failure to properly consult pursuant to ESA Section 7(a)(2), plaintiffs need only show that compliance could  protect their concrete interests. Additionally, agencies are only exempt from the ESA Section 7(a)(2) requirement to consult if the acting agency does not have any discretion at all to act to protect the endangered or threatened species.