Jan 122015
 

Earlier

Thursday, Jan. 8 - The justices will consider whether to grant the writ of certiorari at a conference on Friday, Jan. 9. Their decision will be announced Monday.

See SCOTUSBlog for briefs and this L.A. Times article by David Savage for background.

The Ninth Circuit opinion petitioners want reviewed is here.

The summary of that Ninth Circuit opinion (which does not constitute any portion of the court's ruling) is below.

The panel reversed in part and affirmed in part the district
court’s judgment invalidating a 2008 biological opinion by
the U.S. Fish and Wildlife Service that concluded that the
Central Valley and State Water Projects jeopardized the
continued existence of the delta smelt and its habitat.

The Central Valley Project and the State Water Project,
operated respectively by the U.S. Bureau of Reclamation and
the State of California, supply water originating in northern
California to agricultural and domestic consumers in central
and southern California. The source of the water—the
estuary at the confluence of the San Francisco Bay and the
Sacramento-San Joaquin Delta—is the lone habitat for the
delta smelt, a threatened species under the Endangered
Species Act (“ESA”). After the Bureau of Reclamation
requested a biological opinion (“BiOp”), the U.S. Fish and
Wildlife Service (“FWS”) concluded that the Central Valley
operations would threaten the delta smelt and, as required by
the ESA, proposed alternatives to ameliorate the effect on the
smelt, including reducing the water exported to southern
California. The plaintiffs-appellees—various water districts,
water contractors, and agricultural consumers—brought suit
under the Administrative Procedure Act against various
federal defendants. The district court concluded that the 2008
BiOp was arbitrary and capricious.

Concerning the scope of the record, the panel held that the
district court overstepped its bounds in admitting additional
declarations from the parties’ experts. The panel held that it
would consider the BiOp and evidence submitted by the
parties that the FWS considered in making its decision, and
the testimony of the four experts the district court appointed
pursuant to Federal Rule of Evidence 706.

Concerning the merits, the panel held that the 2008
BiOp’s reliance on raw salvage figures to set the upper and
lower Old and Middle Rivers flow limits was not arbitrary
and capricious. The panel also held that the 2008 BiOp’s
determination of X2 (the point in the Bay-Delta at which the
salinity is less than two parts per thousand) was not arbitrary
and capricious. The panel further held that the BiOp’s
incidental take statement was not arbitrary and capricious
because it included adequate explanation and support for its
determinations. The panel also held the record supported the
BiOp’s conclusions regarding the indirect effects of project
operations. The panel disagreed with the district court’s
determination that the FWS’s own regulations and the
Administrative Procedure Act required the FWS to explain
that the reasonable and prudent alternatives satisfied 50
C.F.R. § 402.02’s non-jeopardy factors. The panel held that
the FWS’s consideration of these factors could be reasonably
discerned from the record to satisfy any explanation
requirements.

Concerning the cross appeal, the panel held that the FWS
did not violate the ESA by not separating the discretionary
from nondiscretionary actions when it set the environmental
baseline. The panel also held that the Bureau of Reclamation
did not violate the ESA by accepting the 2008 BiOp. The
panel affirmed the district court’s judgment with respect to
the National Environmental Policy Act (“NEPA”) claims, and
held: NEPA does not require the FWS to prepare an
Environmental Impact Statement in conjunction with the
issuance of the BiOp; and the Bureau of Reclamation’s
provisional adoption and implementation of the BiOp
triggered its obligation to comply with NEPA. The panel
affirmed the district court’s order remanding to the Bureau of
Reclamation so that it can complete an Environmental Impact
Statement evaluating the effects of its adoption and
implementation of the BiOp.

Eighth Circuit Judge Arnold dissented from Parts III,
IV.A., IV.B, IV.E, and V.B. of the majority opinion, and
concurred in the rest. Judge Arnold would uphold the district
court’s limited admission of evidence outside the
administrative record as relevant to the Old and Middle River
flow limits and determination of X2, and agreed with the
district court that the FWS’s determination as to the flow
prescription and X2 was arbitrary and capricious. Judge
Arnold disagreed with the basis of the district court’s
conclusion that the non-jeopardy elements must be addressed
in the BiOp or administrative record, but would affirm on the
issue. Finally, Judge Arnold believes the district court should
have found the Bureau of Reclamation independently liable
under the ESA for relying on a legally flawed BiOp.
Judge Rawlinson concurred in the bulk of the majority
opinion, but dissented from Part V.C.2. Judge Rawlinson
disagreed only with the rationale and conclusion that the
Bureau of Reclamation’s adoption and implementation of the
BiOp triggered its obligation to comply with NEPA by
preparing an Environmental Impact Statement that is
generally required under the ESA.

Mar 292012
 

The news release is here (and reprinted below) and the full report is here.


Date:  March 29, 2012
FOR IMMEDIATE RELEASE

Increasing Water Scarcity in California's Bay-Delta Will Necessitate Trade-offs;
'Hard Decisions' Needed to Balance Various Environmental Risks

WASHINGTON — Simultaneously attaining a reliable water supply for California and protecting and rehabilitating its Bay-Delta ecosystem cannot be realized until better planning can identify how trade-offs between these two goals will be managed when water is limited, says a new report from the National Research Council.  Recent efforts have been ineffective in meeting these goals because management is distributed among many agencies and organizations, which hinders development and implementation of an integrated, comprehensive plan.  Additionally, it is impossible to restore the delta habitat to its pre-disturbance state because of the extensive physical and ecological changes that have already taken place and are still occurring, including those due to multiple environmental stressors.

The delta region receives fresh water from the Sacramento and San Joaquin rivers and their tributaries, and ultimately flows into San Francisco Bay and the Pacific Ocean.  Water-pumping stations divert water from the delta, primarily to supply Central Valley agriculture and metropolitan areas in southern California, the Bay Area, and the delta itself.  An increasing population and the operation of the engineered water-control system have substantially altered the delta ecosystem, including its fish species.  Conflicts among various water users have grown, and there are sharp differences of opinion concerning the timing and amount of water that can be diverted from the delta for agricultural, municipal, and industrial purposes and how much water, and of what quality, is needed to protect the delta ecosystem.  The U.S. departments of the Interior and Commerce asked the Research Council to identify the factors affecting fish species in the delta, review future water supply and delivery options, determine gaps in knowledge, and advise on the degree of delta restoration that is attainable while maintaining both an environmentally sustainable ecosystem and a reliable water supply.

It is likely that water scarcity in the delta will become increasingly severe, the report says.  Failure to acknowledge this problem and craft plans and policies that address water scarcity for all needs has made delta water management more difficult than is necessary.  The committee that wrote the report suggested establishing priorities for water use, accounting for trade-offs in decision making, optimizing the availability of existing water supplies, enforcing California's constitutional prohibition against non-beneficial and wasteful water use, and practicing water conservation, among other principles and guidelines.

Multiple environmental stressors -- such as dams; water pumping stations; introduced and invasive species; and changes in nitrogen and phosphorus concentrations and amounts, water flow, and habitat -- negatively affect five delta fishes listed as endangered or threatened, the committee said.  Successfully rehabilitating the delta ecosystem by targeting how an individual stressor impacts a particular species seems doubtful.  Therefore, hard decisions will need to be made about balancing risks for different water uses, such as allocating water to support economic activity, sanitation, or other needs.  In addition, alleviating any one stressor alone is unlikely to reverse declines in these species, but opportunities exist to mitigate or reverse the effects of many stressors.  To increase the likelihood that actions to rehabilitate the ecosystem are cost-effective, continued analyses, modeling, and monitoring will be needed, the committee noted.

Climate change is one of the most challenging and important issues confronting the management and rehabilitation of the delta ecosystem.  It is expected to affect the physical and ecological structure and functioning of the delta as well as the availability of water in the state.  For instance, assessments suggest that many species will be affected by changes in runoff from precipitation and snowmelt, which would likely occur earlier in the year than currently.  In addition, projected sea-level rise and extremes of precipitation could increase the frequency of levee failure and the inundation of islands.  Sea-level rise also has the potential to move more salt water into the delta and alter water quality.  The committee recommended that future planning should include a climate change-based risk model, analysis that incorporates data on the actual changes in delta conditions, and alternative future climate scenarios and their probability.

Additionally, the instability of levees and potential of one levee failure to affect others are liable to be major issues for achieving any measure of water supply reliability or ecosystem rehabilitation.  Continuing the status quo of improving levees will not always be the most environmentally sustainable or economically defensible response in the years ahead, the committee noted.

The lack of integrated, comprehensive planning has made science less useful in decision making for the delta, the committee said.  It recommended that California review water planning and management in anticipation of future circumstances.  This review should devote attention to water scarcity, balanced consideration of all statewide water uses and the practices that govern them, and available engineering alternatives.  In the absence of a review, it would be difficult to resolve delta water management problems in other than a piecemeal fashion.

"Science is necessary to inform actions and proposals, but it does not provide the entire overview and integration that the committee recommends," said committee member Henry J. Vaux Jr., professor emeritus of resource economics at the University of California.  "Societal and political considerations are also integral factors in determining the most appropriate policies toward managing the water resources in the delta and balancing the needs of all water users."

The study was sponsored by the U.S. Department of the Interior and U.S. Department of Commerce.  The National Academy of Sciences, National Academy of Engineering, Institute of Medicine, and National Research Council make up the National Academies.  They are independent, nonprofit institutions that provide science, technology, and health policy advice under an 1863 congressional charter.  Committee members, who serve pro bono as volunteers, are chosen by the Academies for each study based on their expertise and experience and must satisfy the Academies' conflict-of-interest standards.  The resulting consensus reports undergo external peer review before completion.  For more information, visit http://national-academies.org/studycommitteprocess.pdf.  A committee roster follows.

Contacts: 

Jennifer Walsh, Media Relations Officer
Luwam Yeibio, Media Relations Assistant
Office of News and Public Information
202-334-2138; e-mail news@nas.edu

NATIONAL RESEARCH COUNCIL

Division on Earth and Life Studies
Water Science and Technology Board
Committee on Sustainable Water and Environmental Management in the California Bay-Delta

Robert J. Huggett (chair)
Professor Emeritus
College of William and Mary
Seaford, Va.

James J. Anderson
Research Professor and Co-Director of Columbia Basin Research
School of Aquatic and Fishery Sciences
University of Washington
Seattle

Michael E. Campana
Professor
Department of Geosciences
Oregon State University
Corvallis

Thomas Dunne [1]
Professor
Donald Bren School of Environmental Science and Management
University of California
Santa Barbara

Jerome B. Gilbert [2]
Consulting Engineer
Orinda, Calif.

Albert E. Giorgi
President and Senior Fisheries Scientist
BioAnalysts Inc.
Redmond, Wash.

Christine A. Klein
Chesterfield Smith Professor of Law
College of Law
University of Florida
Gainesville

Samuel N. Luoma
Emeritus
U.S. Geological Survey
Menlo Park, Calif.

Thomas Miller
Professor
Chesapeake Biological Laboratory
Center for Environmental Science
University of Maryland
Solomons

Stephen G. Monismith
Associate Professor
Civil Engineering Department
Terman Engineering Center
Stanford University
Stanford, Calif.

Jayantha Obeysekera
Director of Hydrologic and Environmental Systems Modeling
South Florida Water Management District
West Palm Beach

Hans W. Paerl
Distinguished Professor
Institute of Marine Sciences
University of North Carolina
Morehead City

Max J. Pfeffer
Professor
Department of Rural Sociology
Cornell University
Ithaca, N.Y.

Denise Janet Reed
Professor
Department of Earth and Environmental Sciences
Pontchartrain Institute for Environmental Sciences
University of New Orleans
New Orleans

Kenneth A. Rose
E.L. Abraham Distinguished Professor
Department of Oceanography and Coastal Sciences
Louisiana State University
Baton Rouge

Desiree D. Tullos
Assistant Professor
Department of Biological and Ecological Engineering
Oregon State University
Corvallis

Henry J. Vaux Jr.
Professor Emeritus of Resource Economics
University of California
El Cerrito

STAFF

David Policansky
Study Director
____________________________________

1 Member, National Academy of Sciences
2 Member, National Academy of Engineering