(Jan 6, 2010) - U.S. District Court Judge Oliver Wanger has ordered the Bureau of Reclamation (“Reclamation”) to analyze the impacts on the human environment of water diversions meant to protect the delta smelt, a tiny fish found only in the Sacramento-San Joaquin Estuary that is listed as threatened under the Endangered Species Act (the “ESA”). Combined with a three-year drought in California, plaintiffs allege that the water restrictions have had adverse economic and environmental consequences throughout the state. Addressing claims related to the Central Valley Project and State Water Project (the “Projects”) under the National Environmental Policy Act (“NEPA”), the court ruled in favor of plaintiff water districts and against defendant-intervenor environmental groups. In re Delta Smelt Consolidated Cases, --- F.Supp.2d ----, 2009 WL 3823934 (E.D. Cal. Nov. 13, 2009) (“Delta Smelt”).
Neither the USFWS nor Reclamation have performed any NEPA analyses in association with the U.S. Fish & Wildlife Service’s (“USFWS” or the “Service”) opinions regarding the need for water diversions, or Reclamation’s adoption of the Service’s suggested mitigation measures. As a result of the court’s opinion and order, Reclamation must now conduct an environmental assessment (an “EA”) and, potentially, an environmental impact statement (an “EIS”), to evaluate the environmental consequences of actions that the plaintiffs maintain “reallocate hundreds of thousands of acre-feet of water annually – enough water to serve the needs of millions of people – from the current reasonable and beneficial municipal, industrial, agricultural, and other uses.” The water districts successfully argued that the Services had failed to analyze the impact that diversions to help the smelt would have on groundwater resources, air quality, local streams and wildlife, and soil erosion, as well as job loss, fallowed land, and “significant degradation of the human environment.” Pending Reclamation’s NEPA analysis, the plaintiffs have asked the court to enjoin the federal defendants from implementing flow restrictions on Project operations. Judge Wanger will hear oral argument on that motion later this month.
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