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Tuesday, June 18, 2024 | Back issues
Courthouse News Service Courthouse News Service

9th Circuit Sides With Salmon in Water Fight

SAN FRANCISCO (CN) - For the second time this year, a panel for the 9th Circuit has chosen fish over farmers - this time reinstating the government's 2009 finding that two of California's water projects jeopardize salmon species in the San Francisco Bay Delta.

The three-judge panel reversed a 2010 decision by U.S. District Judge Oliver Wanger, which held that government agencies focused too much on salmon and not enough on people in their assessments of two pumping operations that siphon fresh water from the San Joaquin River for agricultural irrigation and Southern California's drinking water.

Dozens of water contractors from across the state had challenged the National Marine Fisheries Service's assessment that the massive pumps trap too many endangered juvenile salmon on their way to the ocean to be operated legally at certain times of the year.

Just as a unanimous en banc 9th Circuit had ruled regarding the tiny delta smelt earlier this year - reversing a similar finding by Wanger - the three-judge panel in this case said that once again, Wanger should have deferred to the agencies' expertise in crafting their biological opinions.

"This issue is almost entirely controlled by our holding in Delta Smelt," Circuit Judge Richard Tallman wrote for the panel. "There, the consulting agency - Fish and Wildlife Service - also used raw salvage data to set maximum negative flows for the Old and Middle Rivers. We determined that the choice to use raw salvage data was appropriate for three reasons. First, the agency has substantial discretion to choose between available scientific models, provided that it explains its choice. Second, other studies helped inform the specific flow requirements imposed. Finally, the flow limits 'work in tandem with the incidental take statement, which accounts for population-level impacts.'

"All three factors are present here," Tallman added.

The panel - which also included Judge Johnnie Walker and U.S. District Judge Thomas Rice from Washington State - found that Wanger had improperly voided a number of the government's reasonable and prudent alternatives, known as RPAs, for not detailing how the actions would help the fish avoid jeopardy.

"As we explained in Delta Smelt, neither the Endangered Species Act nor its implementing regulations require this level of precision from the agency," Tallman wrote. "The ESA requires only that the agency impose RPAs that are 'not likely to jeopardize' the species or its habitat. The regulations interpret this section as requiring the agency to develop RPAs 'that the director believes' would avoid jeopardy. This moderate and deferential language is a far cry from that which would impose a strictly essential requirement."

The panel rejected calls by the water districts and California water authorities to upend the portions of Wanger's opinion that were not in their favor, namely that the feds did not have an obligation to separate the discretionary and nondiscretionary aspects of the pumping projects to define the environmental baseline.

Tallman's opinion does not specifically mention the Golden State's historic drought, instead reminding readers that the U.S. Geological Service considers the Central Valley arid to semi-arid with just 5 to 16 inches of rain falling annually depending on location.

"If the governments did not extract water from the Central Valley's rivers, the valley could not support the farms that feed, the dams that power, and the canals that hydrate millions of Americans," Tallman wrote. "But by extracting the water, people dramatically alter the rivers' natural state and threaten the viability of the species that depend on them. People need water, but so do fish."

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