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  • Audio file (If file doesn’t begin playing immediately, right-click to download it and then listen) USGS links Assessment of undiscovered oil resources in the Bakken and Three Forks Formations, Williston Basin Province, Montana, North Dakota, and South Dakota, 2013 Input-form data for the U.S. Geological Survey assessment of the Devonian and Mississippian Bakken and Devonian Three [...]

  • Other links Pesticide report leaves tough questions unanswered (Defenders of Wildlife) Feds Are Failing to Protect Endangered Species From Pesticides (Center for Biological Diversity) Press release from National Research Council (4/30/2013) Federal Agencies Should Use a Common Approach to Evaluate Risks That Pesticides Pose to Endangered and Threatened Species WASHINGTON — When determining the potential effects [...]

  • “W.Va. members of Congress promise action against EPA” is the headline in the West Virginia Record, whose article noted that 80 percent of the state’s congressional delegation had posted press releases criticizing the D.C. Circuit’s decision that said EPA had the authority to partially revoke a permit for the Spruce Mine. (Only Jay Rockefeller appears [...]

  • The National Academy of Sciences’ National Research Council will release a report next week evaluating the effects of pesticides on threatened and endangered species. Here’s the statement from NAS: Evaluating Risks That Pesticides Pose to Endangered, Threatened Species – New Report A new report from the National Research Council examines how the U.S. Environmental Protection [...]

  • U.S. District Court Judge Joseph C. Spero dismissed an ESA citizen suit seeking to force consultation under the ESA “regarding the effects of 382 registered pesticides on endangered and threatened species” (Center for Biological Diversity v. EPA, 11-293-JCS, N.D. Cal.). “Plaintiffs have not pled sufficient facts to show that the EPA was required to reinitiate [...]

  • The D.C. Circuit reversed and remanded a lower court decision that had scolded EPA for revoking a Clean Water Act permit that already had been approved by the U.S. Army Corps of Engineers (Mingo Logan Coal Co. v. U.S. EPA, 12-5150, 4/23/13). Wrong, the appeals court said. “[W]e reverse the district court insofar as it [...]

  • Daily Digest (April 19, 2013): Asian elephant shot, loggerhead sea turtle egg snatcher sentenced, DOI budget proposed

    Catching up on the Fish and Wildlife Service: The service’s main page features the following news releases: FWS is investigating the shooting of an Asian elephant traveling with Ringling Brothers and Barnum and Bailey Circus in Tupelo, Miss. “The incident occurred in the early morning of April 9, 2013, outside the Bancorp South Arena,” the [...]

  • Daily Digest (April 17, 2013)

    The American Bird Conservancy is touting a study that concludes feral cats are killing endangered Hawaiian petrels. The proof is in the pictures, ABC said. For the first time, videos were taken showing cats preying on petrels. In one, a feral cat “wait[ed] near the entrance of a burrow for over one hour.  When the [...]

  • Link to the full document The Obama Administration today released its National Fish, Wildlife and Plants Climate Adaptation Strategy, which the service said “provides a roadmap of key steps needed over the next five years to reduce the current and expected impacts of climate change on our natural resources, which include: changing species distributions and [...]

  • Audubon writer Ted Williams suspended, pulled from masthead, for Orlando Sentinel column on feral cats

    Update, 3/25/13: The media are starting to take note of Williams’ suspension. See the article and the list of links below for more coverage of this story. Veteran conservation journalist Ted Williams, who for years has penned the Incite column for Audubon magazine, has been suspended and had his name removed from the publication’s masthead, [...]

Water contract renewals in Calif. don’t violate ESA consultation provisions, Ninth Circuit rules

 Posted by on July 17, 2012  Daily Links
Jul 172012
 

Retired U.S. District Judge Oliver Wanger must be pleased. The Ninth Circuit today affirmed his ruling that the renewal of 41 water contracts did not violate the Endangered Species Act’s Section 7(a)(2), requiring federal agencies to consult with the Fish and Wildlife Service or National Marine Fisheries Service before they proceed with major federal actions (Natural Resources Defense Council v. Salazar,  09-17661).

As has been the case in most of the litigation involving water supply contracts in California’s Central Valley, the tiny — but still federally listed — delta smelt played a central role.

Does he seem happy?

The summary at the opinion’s outset says it simply:

“In this appeal, we address whether the renewal of forty-one water supply contracts by the United States Bureau of Reclamation violates § 7(a)(2) of the Endangered Species Act, 16 U.S.C. § 1536(a)(2) and illegally threatens the existence of the delta smelt. We conclude that it does not, and we affirm the judgment of the district court.”

“The contracts at issue fall into two groups: (1) users who obtain water from the Delta- Mendota Canal (“DMC Contractors”); and (2) parties who claim to hold water rights senior to those held by the Bureau with regard to the Central Valley Project and who previously entered into settlement contracts with the Bureau (“Settlement Contractors”).”

The court agreed with Wanger that the environmental groups had not been able to establish that they had standing to bring their lawsuit.

“Plaintiffs satisfy the injury-in-fact requirement by their assertion that they believe that the bureau has overcommitted water under the contracts which will harm the delta smelt,” Judge Procter Hug wrote for a three-judge panel. “However, plaintiffs fail to establish a causal connection between the threatened injury and the bureau’s action because the DMC [Delta-Mendota Canal] contracts include a shortage provision. The shortage provision expressly allows the bureau to take any action to meet its legal obligations, which includes not delivering water to DMC contractors if it is necessary in order to comply with § 7(a)(2) of the ESA.”

The 2-1 decision was authored by Circuit Judge Procter Hug Jr. who was joined by U.S. District Judge Liam O’Grady, sitting by designation from the U.S. District Court for Eastern Virginia. Circuit Judge Richard Paez dissented.

The most comprehensive collection of coverage of the decision is likely to be found at Aquafornia, a web site dedicated to all things aquatic in the Golden State. (Though I just checked and saw no reference to this decision. Pretty remarkable.)

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