Endangered Species Law & Policy

On August 31, 2011, the U.S. District Court for the Eastern District of California enjoined implementation (pdf) of a water management action (referred to as the Fall X2 Action), which the U.S. Fish and Wildlife Service (Service) and Bureau of Reclamation (Reclamation) proposed to take pursuant to a 2008 biological opinion (BiOp) for operation of the California State Water Project and federal Central Valley Project in the Sacramento – San Joaquin River Delta (Delta).  Under the BiOp’s reasonable and prudent alternative, the Fall X2 Action requires a combination of reservoir releases upstream from the Delta and reductions of water exports south of the Delta to maintain a monthly average location of two parts per thousand salinity (X2) no greater (more eastward) than 74 kilometers (km) from the Golden Gate Bridge.  The Service and Reclamation took the position that this Action would benefit the delta smelt.  Plaintiffs the State of California, public water agencies, and agricultural interests sought to enjoin the Action, arguing it would provide no benefit for the species but would impose restrictions that would result in the loss of billions of gallons of water.

In its decision prohibiting implementation of the Fall X2 Action as proposed by the Service, the Court found that the estimated cost of the Fall X2 Action to water users would be 670,000 acre feet of water if 2012 is a critically dry or dry year, or 300,000 acre feet if 2012 is a below normal or above normal year.  The Court determined that this water loss would impact long-term water supply reliability for both domestic and agricultural users, and that there would be further impacts to groundwater recharge programs, with resulting direct environmental impacts to groundwater levels, groundwater quality, and energy use.  The Court further reasoned that such water supply reductions would cause economic impacts to farmers and could have socioeconomic impacts on agricultural communities, although the magnitude of any such economic and/or socioeconomic impacts given the very good water year in 2011 was unclear.

With respect to the benefit of the Fall X2 Action on the delta smelt, the Court found that the scientific evidence in support of imposing any Fall X2 action is manifestly equivocal.  There is essentially no biological evidence to support the necessity of the specific 74 km requirement set to be triggered in this 'wet' water year.  The agencies 'still don't get it.'  They continue to believe their 'right to be mistaken' excuses precise and competent scientific analysis for actions they know will wreak havoc on California's water supply.

In balancing the hardships, the Court found that the record supported a requirement that the location of X2 in the fall not be allowed to shift east of the confluence of the Sacramento and San Joaquin Rivers.  Specifically, the Court found that positioning the location of X2 at 79 km would significantly reduce the water supply impact (from 300,000 acre feet or more to 90,000 acre feet), and would serve the stated objective of the Service to collect delta smelt population data to determine whether the Action might benefit the species.  The Court balanced the imperiled status of the species, the equivocal and highly disputed support for the Fall X2 Action, and the even weaker and unjustified support for positioning the location of X2 at the 74 km marker, against the substantial and damaging water supply impact of doing so, and determined that positioning the location of X2 at the 79 km marker achieved equity. 

In sum, the Court’s decision provides that the Fall X2 Action may not be implemented at 74 km as proposed by the Service and Reclamation; rather the federal agencies may only require the location of X2 to be held at 79 km this fall.  The underlying case, which the court decided (pdf) in plaintiffs favor, is currently on appeal to the Ninth Circuit.