Supreme Court Denies Review of Ninth Circuit Delta Smelt Decision

On Monday, January 12, 2015, the U.S. Supreme Court denied two petitions seeking review of a Ninth Circuit decision upholding limits on water diversions from the Sacramento-San Joaquin Delta to protect the endangered Delta smelt.

Several petitioners, including Westlands Water District, the Metropolitan Water District of Southern California, and other agricultural interests and water utilities, had sought review of a March 2014 Ninth Circuit decision that upheld the “reasonable and prudent alternatives” devised by the U.S. Fish and Wildlife Service in a 2008 biological opinion. The decision means that March 2014 decision remains intact.

The U.S. Fish and Wildlife Service developed the reasonable and prudent alternatives (“RPAs”) to comply with Endangered Species Act (“ESA”) requirements. The RPAs (1) substantially curtailed Delta water exports to limit entrainment of Delta smelt at the pumping plants, and (2) required releases of reservoir water and reduced export pumping to prevent salinity intrusion into the Delta. The petitioners alleged that these RPAs contained no demonstration that they were “economically and technologically feasible” as required by the ESA, that the RPAs failed to use the best available scientific evidence, and that the RPAs failed to consider effects on third parties.

The denial of review brings an end to this chapter in the ongoing wars over California’s water infrastructure. However, with drought continuing to plague California and reports that the U.S. Bureau of Reclamation has begun a new environmental study for the pumping plants that export Delta water, the controversy over management of California’s water projects does not show any signs of abating.

The petition for State Water Contractors v. Jewell, No. 14-402, is available here, and the petition for Stewart & Jasper Orchards v. Jewell, No. 14-377, is available here.

-- Dave Metres

For more information, contact Dave Metres at (415) 228-5400 or [email protected].