
Two fishing groups won a major legal victory last week against the federal government and agribusiness interests when the Ninth Circuit Court of Appeals overturned Delta water contracts. Below is the press release from the law offices of Stephan C. Volker:
On July 25, 2016 the Ninth Circuit Court of Appeals ruled in favor of the Pacific Coast Federation of Fishermen’s Associations (PCFFA) and the San Francisco Crab Boat Owners Association in their longstanding battle with the United States Bureau of Reclamation and San Joaquin Valley agribusinesses that divert millions of acre feet of water annually from the Sacramento-San Joaquin Delta.
Following four years of court proceedings, the Court of Appeals ruled that the Bureau of Reclamation had violated the National Environmental Policy Act (NEPA) by failing to consider reducing the quantity of water diverted from the Delta for farming uses and increasing the Delta’s fresh water flows to San Francisco Bay to restore its imperiled salmon and wildlife.
The Court held that in approving eight 2-year contracts for the delivery of up to 1.2 million acre feet of water annually from the Delta to Central Valley water districts, Reclamation had failed to consider the alternatives of reducing the quantity of water delivered, or terminating the contracts altogether and delivering no water.
The Court stated that “Reclamation’s decision not to give full and meaningful consideration to the alternative of a reduction in maximum interim contract water quantities was an abuse of discretion.” The Court “rejected Reclamation’s argument that the contracts themselves mandated renewal,” pointing out that “NEPA imposes obligations on agencies” to consider less impactful alternatives, and Reclamation “may not evade these obligations by contracting around them.”
The Court also rejected Reclamation’s arguments that reducing the quantity of water delivered under the contracts was infeasible, and agreed with the Fishing Groups that “Reclamation acted unreasonably by relying on stale water needs data.” The Fishing Groups had pointed out that Reclamation had improperly assumed that irrigation water still needed to be delivered to vast tracts of land contaminated by selenium and other pollutants in the western and southern San Joaquin Valley.
The Fishing Groups were