Ninth Circuit Upholds Biological Opinion Regarding Impacts of Central Valley Project and State Water Project Operations on Salmonid Species

February 2015

California Water Law & Policy Reporter, Volume 25, Number 5

Following its recent decision upholding requirements for Central Valley Project (CVP) operations (see, San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581 (Delta Smelt Consolidated Litigation) (9th Cir. 2014) designed to prevent jeopardy to Delta smelt, on December 22, 2014, the Ninth Circuit Court of Appeals upheld federal Endangered Species Act (ESA) based restrictions designed to protect San Joaquin and Sacramento Valley Salmonids. The court held that the National Marine Fisheries Service’s (NMFS) determination that CVP/SWP operations caused jeopardy to salmon, steelhead, sturgeon, and southern resident killer whales was entitled to deference and the trial court’s use of “extra-record” evidence to substitute its own judgment for that of the expert federal agency (here NMFS) was improper.

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