On November 21, 2019, the California Secretary for Natural Resources announced California’s decision to sue the federal government over its biological opinions for continuing operations of the California State Water Project (SWP) and federal Central Valley Project (CVP). 

The Projects provide water to over 20 million of Californians and support the businesses and farms across the state.  In his announcement, the Secretary notes that “Difficult trade-offs have to be made unless we can find creative solutions that balance all water needs.  And even then, sometimes tough decisions will have to be made.”  The biological opinions were issued by the federal government on October 21, 2019, under Section 7(a)(2) of the Endangered Species Act, concluded that the continued operation of the State Water Project and Central Valley Project will not jeopardize threatened or endangered species or adversely modify their designated critical habitats. The Secretary’s announcement underscored potential impacts to protected species, such as Delta smelt (Hypomesus transpacificus), stating “The protection of endangered fish in the Sacramento-San Joaquin Delta requires our immediate attention.” 

It is not a common occurrence for a regulated entity (in this case, the State of California) to sue the federal government for failing to impose restrictions on its own conduct, and is all the more unusual because here the State Department of Water Resources was involved in drafting the biological assessment that is the basis for the federal government’s biological opinions.  One can’t help but wonder whether the sour relationship between the Trump Administration and California is driving decision-making. Stay tuned, as we will continue to report on this litigation as it develops.