Federal District Court Issues Final Judgment in Delta Smelt Litigation

On March 29, 2011, the United States District Court for the Eastern District of California entered a final judgment in the litigation challenging the 2008 biological opinion issued by the U.S. Fish and Wildlife Service (Service) regarding the effects of the Central Valley Project and State Water Project on the delta smelt. Previously, the Court issued a memorandum decision (pdf) holding that the biological opinion is unlawful and remanding it to the Service for further consideration. Under the judgment (pdf), the Service is required to complete a new delta smelt biological opinion consistent with the Court’s memorandum decision by October 1, 2011, except that the Service does not need to make express written findings regarding the Reasonable and Prudent Alternative (RPA) – if one accompanies the biological opinion – by this deadline. Such written findings, including that the RPA is (1) consistent with the purpose of the underlying action, (2) consistent with the action agency’s authority, and (3) economically and technologically feasible, are required by November 30, 2011. The judgment also requires the United States Bureau of Reclamation to complete its review of the RPA (if any) under the National Environmental Policy Act (NEPA) by December 15, 2011. In addition, the judgment incorporates by reference the terms of the recent interim remedy agreement governing operations of the water projects through June 30, 2011, which we described here

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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