9th Circuit Reverses, Rules for Fish and Fishermen on Water Export Case

A federal appeals court this week reversed its earlier decision and determined that the U.S. Bureau of Reclamation (BOR) violated the National Environmental Policy Act (NEPA) by failing to analyze a ‘no project’ alternative to a series of contracts for water deliveries into the San Joaquin Valley. The reversal is a victory for fish and fishermen, who simply asked BOR to compare the environmental impacts of transferring water from the Sacramento River into the San Joaquin Valley against the impacts of not moving the water at all. BOR had argued that the environmental baseline against which the impacts should have been measured presupposed the existence and execution of the contracts.

PCFFA, IFR and the San Francisco Crab Boat Owners’ Association brought suit against BOR for its failure to comply with NEPA in executing a series of contracts with San Joaquin Valley irrigation districts, including Westlands Water District. The fishing groups had previously prevailed on several issues in the case, proving that BOR did have discretion to consider reducing the amount of water delivered under the contracts, and that BOR erred by assessing environmental impacts at the site of delivery, rather than the site from which water was removed. However, the Court initially ruled for BOR on the question of whether the environmental baseline could assume the existence of the delivery contracts.

The new ruling will force BOR to go back to the drawing board in determining whether Delta water exports under the contracts are justified as against the environmental impacts to migrating Chinook salmon, Delta smelt, and a host of other flora and fauna in the Delta.

Read the fishing groups’ attorney’s press release here.