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Environmental Law

: ESA Blawg

NRDC lacks standing to bring ESA challenge against Central Valley Project water contracts

By Keith Rizzardi

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NRDC v. Kempthorne, No. 1:05-CV-1207 OWW SMS (E.D. Cal., June 3, 2009).
OLIVER W. WANGER, District Judge.

BACKGROUND: Plaintiffs' Third Amended Complaint, Docket No. 575 (Apr. 8, 2008), alleges that Federal Defendants acted unlawfully by executing 41 long-term Central Valley Project ("CVP") contracts without performing adequate reviews under the Endangered Species Act ("ESA") and that, by executing and implementing those contracts in reliance on what it knew or should have known to be a faulty ESA review, the Bureau of Reclamation ("Reclamation") failed to comply with the ESA.

EXCERPT: (1) Plaintiffs lack standing to challenge Reclamation's execution and implementation of the Delta-Mendota Canal Unit Water Service Contracts ("DMC Contracts"). To have standing, Plaintiffs must establish a causal connection between these contracts and harm to the delta smelt. But while the administrative record establishes such a connection between water deliveries and harm to the delta smelt, the terms of the DMC Contracts expressly allow Reclamation to take actions to protect the delta smelt, including not delivering any water to DMC Contractors if required "to meet legal obligations" such as Section 7(a)(2) of the ESA. These shortage provisions break any chain of causal connection between the execution and ongoing performance of the DMC Contracts and harm to the delta smelt. Moreover, further ESA consultation would not make the DMC Contracts more protective of the delta smelt because these contracts are already entirely defeasible if the ESA so requires. (2) Plaintiffs' claims fail as to the Sacramento River Settlement Contracts ("SRS Contracts") because Reclamation's discretion is substantially constrained by prior contract. Therefore, following the Supreme Court's decision in Home Builders, 551 U.S. 644, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2008), Section 7(a)(2) of the ESA does not apply to the SRS Contract renewal process. Specifically, Article 9(a) of the SRS Contracts requires Reclamation to renew these contracts for the same quantity of water, the same allocation of water between base supply and project water, and the same place of use on specifically designated land as the original contracts. By executing the original SRS Contracts, Reclamation surrendered its power to change these terms.

Full post as published by ESA Blawg on July 10, 2009 (boomark / email).