Eye on imperiled fish, Ninth Circuit overturns 2011 irrigation decision

The Ninth U.S. Court of Appeals, in overturning a 2011 decision that irrigation restrictions in the Central Valley lacked enough scientific justification, has upheld 2009 watering restrictions based on a National Marine Fisheries Service’s biological opinion paper.

Arguments in the appeal were heard in September, and the decision came down this week.

Congressman Mike Thompson, Benicia’s representative in the House, said the ruling “affirms that while Delta water is important for farmers in the Central Valley, it’s also important for fish, wildlife and those who depend on the Delta for their drinking water and livelihoods.”

Thompson said the Delta supports thousands of farming, fishing and tourism jobs, and has a $4 billion impact on the economy.

“Neither the court, nor anyone else, should be in the business of picking winners and losers when it comes to our limited water supply,” Thompson said.

“Instead, all decisions should be guided by the best available science, and the 9th Circuit let the best available science guide its decision making.

“I commend the ruling and look forward to working with my colleagues in Congress, state leaders, and all stakeholders to find fair, science-based solutions to our water challenges.”

The Court of Appeals opinion, written by Circuit Judge Richard C. Tallman on behalf of the panel consisting of himself, Circuit Judge Johnnie B. Rawlinson and District Judge Thomas O. Rice, began with a passage from “East of Eden,” the John Steinbeck novel that described the dryness of the Salinas Valley as a desiccated place with crusty oaks, gray sagebrush and cracked land that produced so little grass that cows would starve.

“The same can be said for California’s Central Valley,” Tallman wrote. Though the valley’s soil is fertile and the region agriculturally productive, “the Central Valley is also naturally dry,” he wrote.

The valley’s floor gets 5 to 16 inches of rain annually, and the U.S. Geological Service has labeled it arid and semi-arid, he wrote.

“In its natural state, the valley could not sustain the level of agriculture that the country demands from it,” Tallman wrote.

However, “enormous sums” of federal and state money have been spent to pump water from the state’s rivers so it can be delivered to the state’s consumers, including farm operations.

“This water is essential to the continuing vitality of agriculture in the Central Valley, and some 25 million Californians depend on it for daily living,” Tallman wrote.

The Central Valley is between Redding in the north and Bakersfield in the south. It’s between 40 to 60 miles wide, east to west, and about 450 miles long. Among its major river systems are the San Joaquin and the Sacramento and their tributaries.

Those two rivers converge near Antioch, where they form the San Joaquin River Delta.

That water also is essential to endangered fish, Tallman wrote — “And therein lies the conflict.” Without the transported water, the valley not only couldn’t support farms but also the dams that produce power and the canals that deliver water.

In fact, so much water is pumped from the state’s rivers that their flows are reversed, Tallman wrote.

“People need water, but so do fish,” he wrote. “This case is about the competing demands for the limited water resources.”

He wrote that the Central Valley and State Water projects “provide substantial benefits to people and to state agriculture,” but they also “arguably harm species native to the Delta.”

Among those fish are the endangered Sacramento River winter-run Chinook salmon and southern resident Orca whale, as well as several threatened species — the Central Valley spring-run Chinook salmon, the Central Valley steelhead, and the Southern District Population Segment of North American green sturgeon.

All but the Orca migrate from salt water to fresh water to reproduce, and during those journeys the fish have to pass such impediments as locks, dams, channels and pumps.

The two water projects have increased pollution, encouraged invasive species’ populations and created water shortages in the Delta that have impacted the native fish, Tallman wrote.

When the water projects limit cold water releases from upstream dams, it can impact fish reproduction, his decision explained.

The backward flow of the rivers created by water removal has drawn fish into the pumps. While some get diverted and collected for trucking back to the Delta, the probability of survival of those rescued fish is reduced, Tallman wrote.

Some fish get drawn back to the pumps, and others die from toxic conditions and predation by non-native fish.

When an agency concludes that proposed action jeopardizes either species or critical habitat, the agency’s biological opinion must recommend reasonable and prudent alternatives to the proposal in order to avoid those consequences, Tallman wrote.

This specific case involves objections to a biological opinion and its recommended alternatives.

It has its origins in the 2006 request by the Department of Interior Bureau of Reclamation to the Commerce Department’s National Marine Fisheries Service (NMFS) to use the Endangered Species Act (ESA) and evaluate the impact of continuing water extraction in the Central Valley on the threatened and endangered species, specifically salmonid fish.

The NMFS developed a Biological Opinion (BiOp) that said the Bureau of Reclamation’s proposed project would jeopardize some of the Delta’s endangered salmonids, and told the Bureau to change how it pumps water out of the Valley’s rivers.

Some of the irrigation districts that depend on the Central Valley’s water, however, sued to halt the change.

The district court, in an opinion issued by U.S. District Judge Oliver Wanger, found that the NMFS had violated the Administrative Procedure Act, saying that the fisheries service had been “arbitrary or capricious” in developing its BiOp.

Wanger left the fisheries service’s restrictions in place, but told the agency to re-examine its findings.

Several environmental groups, in turn, appealed Wanger’s decision to the Ninth Circuit court.

Tallman’s opinion for that court said the district court itself had admitted extra-record declarations and substituted the analysis in those declarations for those provided by the fisheries service.

The higher court’s panel decided the fisheries service had acted within its “substantial discretion” when it used raw salvage data of fish population to set flows in the Old and Middle rivers.

In addition, Tallman disagreed with the lower court’s decision that that the fishery services had been “arbitrary and capricious” in the NMFS’s concerns and alternative actions it had issued about jeopardy to the winter-run chinook, southern resident orca, the steelhead critical habitat and the impact of factors that lead indirectly to the species’ mortality.

In fact, the lower court had not given the NMFS the “substantial deference it is due,” Tallman wrote.

Tallman and the panel upheld the fisheries BiOp in its entirety.

But Tallman didn’t disagree completely with Wanger. He and the panel of three affirmed on cross-appeal several components of Wanger’s opinion.

The two courts agreed that the NMFS didn’t have to distinguish between “discretionary” and “non-discretionary” actions, that the indirect mortality factors described in its BiOp were direct effects under the Endangered Species Act, and that the Bureau of Reclamation was not independently liable under the Endangered Species Act.

John McManus, Golden Gate Salmon Association’s executive director, responded in a prepared statement, “The court ruling makes clear that it’s legal and right to limit the siphoning of Northern California water because that water is needed by salmon and other wildlife.”

Tallman wrote that this is not the first time the Ninth Circuit court had addressed conflicts in the way California distributes water, “nor is it likely to be the last.”

In fact, it has addressed the conflict in Delta irrigation and another threatened fish, the Delta smelt, he wrote.

In that decision, he wrote, “we reversed the district court and upheld a 2008 BiOp in which the Fish and Wildlife Service concludes that continuing water extraction from the Central Valley’s rivers would jeopardize the Delta smelt, and offers reasonable and prudent alternatives that Reclamation should take to ameliorate this impact.”