Endangered Species Law & Policy

On June 18, 2015, the U.S. District Court for the Eastern District of California denied a motion for a temporary restraining order and preliminary injunction, finding the plaintiff failed to establish that an emergency salinity barrier would imminently harm species listed under the Endangered Species Act (ESA).  Center for Environmental Science, Accuracy & Reliability (CESAR) v. Cowin, No. 1:15-cv-00884-LJO-BAM (E.D. Cal Jun. 18, 2015) (pdf).

CESAR filed an action against the California Department of Water Resources (DWR) and the U.S. Fish and Wildlife Service (Service) on June 11, 2015, seeking to enjoin the construction and operation of an Emergency Drought Salinity Barrier at West False River (Project) in the Sacramento-San Joaquin Delta (Delta).  CESAR further sought to require the Service to reinitiate consultation under the ESA due to changed circumstances, to wit, the construction and operation of the Project.  Among other things, CESAR argued that the Project would adversely impact species listed under the ESA, including the delta smelt (Hypomesus transpacificus).

DWR constructed the Project in response to Governor Brown’s Executive Order B-29-15, which directed DWR to plan, and, if necessary, implement emergency salinity barriers at various locations within the Delta.  The Project is intended to reduce saltwater intrusion into the central Delta resulting from California's prolonged drought.  According to DWR, if the Project was not installed, salinity levels in the Delta would degrade water quality to levels that would render it unacceptable as a source for drinking water or commercial and industrial uses, thereby creating risks to human health and safety.  Installation of the Project was completed on June 15, 2015, with approximately 150,000 tons of rock comprising the salinity barrier.  DWR obtained most of the required federal permits for the Project on an emergency basis.

The court denied plaintiff’s motion, holding CESAR failed to demonstrate a reasonably certain threat of imminent harm to ESA-listed species.  Given that the Project had already been installed, the court construed CESAR’s motion as a request to have the Project removed, thereby applying the heightened standard for a mandatory injunction.  The court found that the potential impacts described by CESAR were insufficient to meet its burden of establishing that the Project would irreparably harm the species, opining that CESAR was required to demonstrate significant harm to the overall population.