On March 13, the Ninth Circuit issued its long-awaited decision in the latest round of the delta smelt litigation, upholding the 2008 Biological Opinion prepared by the U.S. Fish & Wildlife Service for the combined operations of the Central Valley Project and the State Water Project.  The Biological Opinion found that the projects would jeopardize the delta smelt, currently listed as an endangered fish species, and therefore imposed significant restrictions on the operation of the projects, which supply water to more than 20 million agricultural and domestic users in Central and Southern California.  The court reversed much of the district court’s decision, which had agreed with claims by numerous California water districts, water contractors and agricultural water users that the restrictions in the Biological Opinion were scientifically unsupported and in violation of the Endangered Species Act.  San Luis & Delta-Mendota Water Authority v. Jewell, No. 11-15871 (9th Cir. Mar. 13, 2014). 

The court recognized the “enormous practical implications” of its decision, but emphasized that it was required by the standard of judicial review to defer to the FWS’s scientific determinations and judgment.  The court also emphasized that the ESA’s protections are “afforded the highest priorities by Congress, even if means the sacrifice of the anticipated benefits of the projects and of many millions of dollars in public funds.”  According to the decision, the ESA prohibits courts from making “utilitarian calculations to balance the smelt’s interests against the interests of the citizens of California.”  Rather, the broader policy questions about the allocation of water resources in California lie “with Congress and the agencies to which Congress has delegated authority” and “ultimately, the populace as a whole.” 

Although the court upheld the Biological Opinion, it acknowledged that the document was rushed, incoherent (“a jumble of disjointed facts and analyses”), and “largely unintelligible.”  But the court blamed this problem largely on the district court, which had imposed strict and unrealistic time frames on the FWS for completing its analysis.  The court also faulted the district court for having “overstepped its bounds” by failing to observe the rules and standards for judicial review.  While the ESA requires the use of “the best scientific and commercial data available,” the court emphasized that this does not mean the best scientific data that is possible, and it also explained that the determination of what scientific data and methodology to use in a Biological Opinion is a matter within the FWS’s expertise and discretion.  

Based on these principles of judicial review, the court held:

• The district court erred in admitting declarations from experts hired by the parties, rather than confining its review to the administrative record that was before the FWS at the time it approved the Biological Opinion, as supplemented by limited testimony of experts appointed by the court to explain the highly technical material in the Biological Opinion.
• The Biological Opinion did not err in establishing flow-based water pumping limits that relied on the number of smelt salvaged at project fish screening facilities.  The FWS reasoned that salvage data typically is used to provide an indication of the number of fish that are entrained and killed in the water pumping facilities.  But the district court ruled that the use of raw salvage numbers was improper, and that the numbers should have been scaled to the smelt’s overall population.  The district court reasoned that the number of fish salvaged in any given year depends on the total smelt population, which can vary from year to year.  While the Ninth Circuit acknowledged that the FWS could have done a more rigorous analysis to establish the pumping limits, it found that the evidence in the record supported the FWS’s conclusions.
• The Biological Opinion did not err in establishing the location of X2, which is the point in the Bay-Delta estuary where the salinity is two parts per thousand, and the center point of the Low Salinity Zone, which is considered suitable spawning habitat for the smelt.  The location of X2 is critical because it is controlled by the amount of water pumped out of the Bay-Delta by the water projects.  The court deferred to the scientific modelling conducted by the FWS, acknowledging that while the particular model used was flawed, the FWS explained the basis for using it and why other suggested modeling techniques also were flawed.  The court stated: “The fact that the FWS chose one flawed model over another flawed model is the kind of judgment to which we must defer.”
• The court upheld the Biological Opinion’s Incidental Take Statement, finding that it sufficiently explained the rationale for using separate data sets to establish different take limits for juvenile and adult smelt and for using an averaging methodology that the district court had found unsupported and overly restrictive.
• The court upheld the Biological Opinion’s analysis of the indirect effects of water project operations on delta smelt food supply, pollution, predation, aquatic vegetation, and toxic bacteria.  Disagreeing with the district court, the Ninth Circuit examined the administrative record on each of these issues, and found that the evidence supported the FWS’s conclusions that the water projects would cause adverse indirect impacts.  The court emphasized: “we decline to review with a fine-toothed comb the studies on which the FWS relied in reaching its conclusions.”
• The FWS is not required to explain how the Reasonable and Prudent Alternatives set out in the Biological Opinion - which are required to reduce impacts to protected species when the FWS determines the species is jeopardized by a project - are economically and technologically feasible, and can be implemented in a manner consistent with the project’s intended purpose and the authority of the Bureau of Reclamation, which operates the Central Valley Project.  The court held that the FWS’s consideration of these factors could be readily discerned from the record in any event.
• The FWS is not required to segregate discretionary from non-discretionary actions when it considers the environmental baseline, which is the starting point for evaluating the impacts of a proposed project on a protected species.
• The Bureau of Reclamation, and not the FWS, is the federal agency that is obligated to evaluate the environmental impacts of implementing the Biological Opinion in order to comply with the National Environmental Policy Act.  In an important NEPA ruling, the court rejected the claim by the Natural Resources Defense Council that NEPA compliance is not required for the adoption and implementation of a Biological Opinion.  The NRDC claimed that compelling NEPA compliance in this case would thwart the ESA’s goal of preserving listed species by imposing a significant procedural hurdle on the implementation of the actions needed to achieve that goal.

The decision not only makes a number of important legal rulings under the ESA and NEPA, it also is of vital practical importance to the future of California’s water supplies.