Endangered Species Law & Policy

Last Friday, the U.S. District Court for the Eastern District of California denied (pdf) a motion brought by environmental groups to enjoin a water transfer project in the Sacramento-San Joaquin River Delta (Delta). Plaintiffs brought suit against the U.S. Bureau of Reclamation (Bureau), arguing the Bureau violated the National Environmental Policy Act (NEPA) by approving the San Luis & Delta-Mendota Water Authority (SLDMWA) Water Transfer Project, which would allow water rights holders or contractors north of the Delta to sell water to members of SLDMWA, whose members then would make use of the water in areas that lie south of the Delta. The Bureau’s role would be to review any proposed transfers and facilitate those transfers though the Delta. The Bureau prepared an Environmental Assessment (EA) and issued a Finding of No Significant Impact (FONSI) pursuant to NEPA in April 2014, concluding that the transfer project was covered by the 2008 delta smelt biological opinion issued under the Endangered Species Act and that the timing of the transfers (July-September) was such that delta smelt would not be present in the Delta, and therefore would not be adversely impacted.

Plaintiffs sought to enjoin the transfers, arguing that the Bureau’s conclusion that delta smelt would not be present in the Delta was arbitrary and capricious and that the Bureau failed to consider recent information regarding Delta outflow and relaxed water quality standards. The court denied plaintiffs’ motion for a preliminary injunction, concluding plaintiffs were not likely to succeed on the merits of their NEPA claims because, according to the court, their dispute "boils down to a disagreement with an expert agency as to the likelihood that the 2014 Transfer Project will draw smelt into areas of the Delta where they will be subject to dangerously high temperatures. The court determined it must defer to the agency on such matters."