California’s Central Valley is a vast, oblong valley in the interior of the state, 400 miles long north to south and about 50 miles wide east to west. It is bordered on the east by the Cascades and the Sierra Nevadas, and on the west by the Coast Range. The Sacramento and San Joaquin Rivers flow through the semi-arid Central Valley, meeting in the Sacramento-San Joaquin Delta (the “Delta”) and then flowing west into San Francisco Bay.
Through the Reclamation Act of 1902 and other statutes, Congress authorized the United States Bureau of Reclamation to build and operate a series of water projects to “reclaim” the land of the Central Valley and create a stable economy based on agriculture. Together, those projects are known as the Central Valley Project (“CVP”). The CVP:
- is the largest federal water management project in the United States;
- comprises 20 dams and reservoirs, 11 hydroelectric power plants, and approximately 500 miles of major canals and aqueducts.;
- provides, in most years, more than 5 billion kilowatt-hours of electricity and drinking water for about 30 million people; and
- supports over $10 billion in agriculture in more than two hundred water districts.
The Bureau supplies water to water districts (who, in turn, provide that water to irrigators) under long-term water delivery contracts. The State of California operates a series of inter-related water projects known as the State Water Project (“SWP”). The CVP and the SWP share certain facilities and have always been operated together.
The Species Affected
The operation of the CVP and the SWP affects the species that rely on the Delta in ways that are important, but poorly understood by scientists at this time. Most significantly, the CVP and SWP alter the outflows of the Sacramento and San Joaquin Rivers into the Delta, which changes spawning cues, increases water temperatures, increases salinity (as salt water from the Pacific Ocean is drawn through San Francisco Bay into the Delta), and reduces habitat. In addition, as discussed above, fish are entrained at the State and Federal pumps and killed.
The species affected by the operation of the CVP and the SWP include ESA-listed species, including :
the delta smelt, a small pelagic fish with a life span of only one to two years. The delta smelt was listed as a threatened species in 1993 as a result of the effects of invasive species, farm run-off, loss of habitat, changes to river outflows resulting from the operation of the CVP and SWP, and entrainment at the CVP and SWP pumps.
a series of salmonid species, including the endangered Sacramento River winter- run Chinook salmon, the threatened Central Valley spring-run Chinook salmon, the threatened Central Valley steelhead, the threatened Southern Oregon/Northern California Coast (“SONCC”) coho salmon, and the threatened Central California Coast steelhead. A population of the North American green sturgeon has also been listed recently that is affected by these operations. Salmonids are anadromous and swim into the Delta to spawn upstream in the tributaries of the Sacramento and San Joaquin Rivers. The dams of the CVP impede their progress upstream. By modifying river outflows, the operation of the CVP also confounds the environmental cues that would normally tell the salmonids when to move upstream or downstream, and may harm juvenile salmonids by exposing them to higher water temperatures.
Central Valley Project Improvement Act
In 1992, Congress recognized the significant ecological effects of the operation of the CVP and the SWP and passed the Central Valley Project Improvement Act (“CVPIA”). The CVPIA attempted to strike a new balance between water uses and re-allocated 800,000 acre-feet of water (per year) to restore Central Valley fisheries. The CVPIA significantly constrains the Bureau’s discretion in the operation of the CVP.
Reclamation and the State have consulted repeatedly with both the United States Fish and Wildlife Service and the National Marine Fisheries Service (“NMFS”) on the effects of its CVP and SWP operations on threatened and endangered species as required by Section 7(a)(2) of the ESA, which directs federal agencies to ensure that their actions are not likely to jeopardize the continued existence of any listed species and to make that determination in consultation with the Services.
The biological opinions issued by the Services, as well as the Bureau’s CVP operations, have been challenged in litigation on numerous occasions over the years, by both irrigators and environmental interest groups.
- The Bureau has been sued by water districts when it has provided less than the full amount of water identified in their water supply contracts (for example, during dry years).
- Similarly, environmental groups have filed lawsuits when they believe the Bureau’s operations result in conditions that harm the listed species.
Courts have been repeatedly asked to interpret the terms of the Bureau’s water supply contracts and the scope of its discretion.
The Services’ 2004 biological opinions were challenged by environmental groups on the grounds that they were not sufficiently protective. The Court agreed and remanded them to the Services for further review. The Services completed new biological opinions in 2008 and 2009, and those opinions were challenged by irrigators and other water users who argued that they are too protective and will use too much water to prevent the extinction of these species.
In 2010 and 2011, respectively, the Court issued final judgments remanding the 2008 and 2009 biological opinions. On appeal, the Ninth Circuit reversed the 2010 district court opinion for the FWS opinion. San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581 (March 13, 2014). The appeal of the 2011 decision regarding the NMFS opinion is currently under submission with the Ninth Circuit. However, the opinions were not vacated and continue to govern operations. The separate remands require the Services to issue revised biological opinions and various National Environmental Policy Act documents throughout 2013-2016.
In April 2013, the Court granted in part a motion filed jointly by the federal agencies and the California Department of Water Resources to extend the remand deadlines to allow the agencies to pursue a collaborative scientific adaptive management process as an alternative to the Court-ordered remand. In particular, the Court stayed all existing deadlines in both remands for a period of one year and ordered the moving parties to submit status reports and requests for an additional one-year stay on or before February 15, 2014, which they did. At that time, the Court granted an additional one-year extension, with the additional requirement that the parties submit quarterly four-page status reports on progress. The parties have submitted one such report, and the second report is due October 14, 2014. In addition, the Court entered a revised judgment in the Consolidated Smelt Cases, which upholds FWS’ smelt biological opinion and removes FWS from the Court-ordered remand. Although FWS is no longer under the Court’s jurisdiction, it is voluntarily continuing with the collaborative process at this time.
Cases of Interest:
Delta Smelt Consolidated Cases, No. 1:09-cv-407-OWW (E.D. Cal. 2009).
San Luis & Delta-Mendota Water Authority v. Salazar, No. 09-cv-407, 2009 WL 1575169 (E.D. Cal. 2009).
NRDC v. Kempthorne, No. 05-cv-1207, 2008 WL 4369308 (E.D. Cal. 2008).
NRDC v. Kempthorne, 506 F.Supp.2d 322 (E.D. Cal. 2007)