Calif. Delta Smelt Lawsuit Tossed as Moot

     FRESNO, Calif. (CN) – A federal judge dismissed an environmental lawsuit challenging California’s now-dismantled emergency salinity barrier across a channel of the Sacramento-San Joaquin River Delta in response to the drought.
     U.S. District Judge Lawrence O’Neill ruled on March 31 that the complaint from the Center for Environmental Science, Accuracy and Reliability (CESAR) is moot.
     The 750-foot-wide rock barrier was built in May 2015 as a temporary fix to prevent additional saltwater from fouling freshwater supplies to approximately 25 million people, according to the defendant California Department of Water Resources.
     The state removed the barrier on Nov. 16.
     Nonetheless, CESAR sued on Nov. 19, accusing the state of circumventing environmental law to build the dam. It claimed that the salinity barrier was installed and operated in violation of the Endangered Species Act, and failed to prevent incidental take of Delta smelt.
     The state built the 2015 dam by using the Endangered Species Act’s emergency consultation procedures, rather than the standard ESA consultation process.
     Thanks to March storms, DWR will not need to install a drought barrier this year to help control the salinity in the Sacramento-San Joaquin Delta. But the state said that much of California remains in an extreme drought so a salinity barrier may be needed in the future.
     And if a dam does need to be built, the Department of Water Resources said it will use the standard ESA consultation process to receive a take permit instead of the emergency procedure it used in 2015.
     Judge O’Neill said that “is critical to evaluating mootness in the context of this case.”
     “Plaintiff’s chief complaint in this case is that the approval process for the installation of the salinity barrier in 2015 utilized the ESA’s emergency consultation procedures, rather than the standard ESA Section 7 consultation process,” O’Neill wrote. “DWR’s evidence now demonstrates that emergency consultation procedures will not be utilized in 2016 and that DWR does not intend to use them in 2017 or beyond.”
     Spring 2017 is a year away and the environmental group has not shown that the consultation process cannot be initiated and completed by then, the judge said.
     “Taking DWR’s official at its word, emergency consultation procedures will not be invoked in 2017 or beyond. As DWR is undoubtedly aware, should emergency consultation procedures again be invoked in connection with the installation of a salinity barrier, any subsequent challenge is likely to end up litigated before this court as a related case and DWR’s prior positions will likely become relevant to any future mootness analysis,” O’Neill ruled.
     CESAR attorney Leah Zabel told Courthouse News her group will appeal.
     Zabel said the judge did not address the issue of the take of Delta smelt that resulted from the barriers.
     “Basically, what the judge is saying is that as long as these projects are temporary, the state doesn’t have to comply with the ESA,” Zabel said. “We think that there is no doubt that the use of the barriers will continue and now it appears that they have been given free rein to do that.”
     Wyn Hornbuckle, with the U.S. Department of Justice’s Office of Public Affairs, said the state is reviewing the ruling.

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