Delta Smelt Defenders Call for More Protection

SAN FRANCISCO (CN) - The Natural Resources Defense Council defended its standing before the 9th Circuit and argued that the U.S. government has not yet adopted a plan that will adequately protect the endangered delta smelt.

In the latest round of a decades-long conflict between farmers and environmentalists over the allocation of water in the Sacramento River Delta, NRDC attorney Katherine Poole said Monday the 25- to 40-year contracts, which were executed in 2005, failed to properly incorporate the findings of a biological opinion issued by the U.S. Fish and Wildlife Service in 2008.

The U.S. Bureau of Reclamation could have renegotiated more protective terms for the Delta smelt if it had "looked at the contracts through the proper Section 7 lens," Poole said.

Section 7 of the Endangered Species Act requires federal agencies to ensure that their actions do not jeopardize the existence of any listed endangered species.

The District Court held that the NRDC lacked standing to challenge the contracts because of provisions that allow water volumes extracted from the delta to be limited for the implementation of federal and state laws, among other potential reasons for limiting the flow.

U.S. District Judge Liam O'Grady, sitting by designation from the Eastern District of Virginia, highlighted some awkwardness in the NRDC argument that stems from the fact that this case started in 2005, before the most recent Fish and Wildlife Service biological opinion.

"The NRDC now is in step with the Bureau of Reclamation and agrees that the (2008 biological opinion) will in fact protect the smelt. Correct?" O'Grady asked.

Poole responded that the NRDC is supporting the government's plan in other litigation and that the plan provides a "necessary level of protections, however it's not sufficient," emphasizing that the contracts do not properly reflect the 2008 biological opinion and adding that, "the bureau must go back and renegotiate in light of the 2008 [biological opinion]."

Poole added that the NRDC plans to open up the contracts to the Environmental Protection Agency to look at the water volumes, timing and pricing.

Robert Oakley, representing the federal defendants for the Justice Department's Environment & Natural Resources Division, argued the NRDC doesn't have standing because it has not suffered injury.

"The NRDC is entitled - the delta smelt are entitled to have the Central Valley Project operated so it will not jeopardize them," Oakley said. "They are not entitled and could not overturn the 2008 biological opinion simply because something which doesn't jeopardize them could be made yet better for them."

Judge Richard Paez asked why the District Court was wrong to find that the no-liability clause in one series of agreements, called the Delta-Mendota contracts, created a break in the chain of causation that would allow the NRDC standing

Poole countered that the environmentalist groups "continue to suffer actual injury that's caused by the contracts." She said water exports in the spring are the worst problem for the smelt and that the no-liability provision creates a lag time before the protections outlined by the 2008 biological opinion can go into effect. Water volumes through export pumps in the Sacramento Delta are reduced only after smelt have been killed.

This is too late, Poole said, adding that this represents the harm the groups suffer as well their standing.

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