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By Alan Kovski
April 16 --The U.S. Bureau of Reclamation must consult with the U.S. Fish and Wildlife Service on possible protections for the Delta smelt in California before renewing long-term water contracts in central California, a federal appeals court ruled April 16.
The unanimous en banc ruling by 11 judges of the U.S. Court of Appeals for the Ninth Circuit overruled a previous three-judge panel's decision, which had upheld a district court decision.
The three-judge panel, in a split decision, had said the Bureau of Reclamation contracts were not subject to consultation obligations under the Endangered Species Act.
The en banc panel said the Section 7(a)(2) consultation requirement is triggered so long as a federal agency retains “some discretion” to take action for the benefit of a protected species. The Delta smelt is listed as threatened, qualifying it for protections under the Endangered Species Act.
The contracts disputed in the case included provisions specifying the quantities of water and the allocation of those quantities, provisions that led the district court to assume federal discretion was very limited, eliminating the need for consultation.
But the Bureau of Reclamation retained some discretion because the bureau was not obligated to renew the contracts, the full court said. In addition, the contractual restrictions on quantity and allocation did not fully tie the bureau's hands even if contract renewal were mandatory, because other contract terms--such as water pricing or the timing of water distribution--might be renegotiated to benefit the smelt, the appeals court said.
The Natural Resources Defense Council led environmental advocacy groups in challenging the government's renewal of contracts signed 45 years ago to resolve a dispute with a group of Central Valley farmers with historic rights to river water. At issue are 41 “settlement contracts” with the Delta-Mendota Water Authority and other users.
The ruling does not determine the result of any agency consultations or contract negotiations, but it allows the possibility of revised contracts.
The NRDC issued a statement hailing the decision.
“We need to reform water supply contracts to ensure that they are compatible with a sustainable water future for the Delta and all its water users,” NRDC attorney Doug Obegi said.
Siding with the Bureau of Reclamation in the case were many agricultural groups, irrigation districts and other water users, including the city of Redding. Much of the water for irrigation and human consumption in central California comes through the Central Valley Project, managed by the Bureau of Reclamation.
“Bottom line is that this decision will simply spread the pain of Delta smelt mitigation to more farmers and others dependent on Central Valley Project water,” wrote attorney Damien Schiff of the Pacific Legal Foundation. His foundation is a public interest legal organization that often is at odds with environmental activists in its support for property owners and businesses.
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