Biological Opinions for the
Sacramento-San Joaquin Delta:
A Case Law Summary
Kristina Alexander
Legislative Attorney
January 23, 2012
Congressional Research Service
7-5700
www.crs.gov
R41876
CRS Report for Congress
Pr
epared for Members and Committees of Congress

---

Biological Opinions for the Sacramento-San Joaquin Delta: A Case Law Summary

Summary
For decades biologists, water users, and lawmakers (both federal and state) have attempted to
craft a system that meets the needs of California water users while ensuring sufficient usable
water for fish. Under California’s hybrid system of appropriative water rights, users are issued
permits for water diverted from rivers and streams regardless of the users’ proximity to the source
of water. The state of California has issued permits to the Bureau of Reclamation (the Bureau) to
store, divert, and deliver water from the federal Central Valley Project (CVP), which consists of
facilities on the Sacramento, Stanislaus, and San Joaquin Rivers, including the Shasta, New
Melones, and Friant Dams. The Bureau diverts CVP and State Water Project (SWP) water from
the southern portion of the Sacramento-San Joaquin Delta to the southern part of California.
Although the amount of water available from the CVP/SWP is relatively constant,
notwithstanding periods of drought and periods of excessive rain (e.g., El Niño years), the amount
of water diverted from major rivers and their tributaries has increased over time, and fish
populations have declined.
In the CVP/SWP watershed, the Endangered Species Act (ESA) protects multiple species or
populations of fish, including the endangered Sacramento River winter-run Chinook salmon, the
threatened Central Valley spring-run Chinook salmon, the threatened Central Valley steelhead, the
threatened Southern population of North American green sturgeon, and the threatened delta smelt.
The ESA requires the Bureau to consult with the Fish and Wildlife Service (FWS) or the National
Marine Fisheries Service (NMFS) (together, the Services) to see whether planned actions are
likely to jeopardize a listed species or damage critical habitat. (FWS is consulted for impacts
related to the Delta smelt. NMFS is consulted on potential impacts to salmon.) The consultation
process concludes with the Service issuing a biological opinion (BiOp) along with an incidental
take statement, allowing the federal action to proceed without prosecution for incidental harm to
listed species. If the Service finds the action is likely to jeopardize a listed species, a jeopardy
BiOp is issued, which will include reasonable and prudent alternatives (RPAs) to the planned
action to avoid extinction of a species. Otherwise a no-jeopardy BiOp is issued.
In 2004, the Long-Term Central Valley Project and State Water Project Operations Criteria and
Plan (OCAP) was issued by California and the Bureau to meet the system’s water needs. Pursuant
to OCAP, the Services issued both jeopardy and no-jeopardy opinions. Lawsuits challenged both
types of BiOp. If jeopardy was found, water users argued that the BiOp failed to consider impacts
on junior water users sufficiently. If no jeopardy was found, environmentalists and fishermen
argued that the BiOp did not fully consider the extent of the harm to the species. Judge Oliver W.
Wanger of the federal court for the Eastern District of California has found the BiOps or the RPAs
to be inadequate for various reasons, including failing to comply with the National Environmental
Policy Act (NEPA). (He retired from the bench at the end of September 2011.) Some of those
decisions have since been appealed to the Ninth Circuit. This report summarizes the proceedings
on the BiOps issued since 2004.

Congressional Research Service

---

Biological Opinions for the Sacramento-San Joaquin Delta: A Case Law Summary

Contents
Proceedings Related to OCAP BiOps.............................................................................................. 1

Appendixes
Appendix A. List of Acronyms and Abbreviations Used in Table................................................... 8
Appendix B. Brief Description of Cases in Table............................................................................ 9

Contacts
Author Contact Information............................................................................................................. 9

Congressional Research Service

---

Biological Opinions for the Sacramento-San Joaquin Delta: A Case Law Summary

Proceedings Related to OCAP BiOps

Document
Case Name
Date
Title Summary
NRDC v. Norton, 1:05-
1/3/07 Order
Denying
Despite the fact that new BiOps were being prepared by
cv-1207, 2007 WL
Motions for
both FWS and NMFS, the court refused to dismiss as
14283 (E.D. Cal. Jan. 3,
Dismissal,
moot the cases chal enging the 2004 and 2005 BiOps.
2007)
Remand, and
The court refused to stay Bureau’s operations to pre-
Stay
2004 levels or to consolidate suit against FWS with
Pacific Coast Federation’s suit against NMFS. (Bureau
reinitiated consultation with FWS on OCAP after new
data on delta smelt showed 2005 No Jeopardy BiOp
needed to be revisited. Bureau reinitiated consultation
with NMFS after species not listed at time of 2004 No
Jeopardy BiOp became protected.)
NRDC v. Kempthorne,
5/25/07 Order
The court held the 2005 FWS BiOp conclusion that
506 F. Supp. 2d 322
Remanding 2005 delta smelt were not in jeopardy was arbitrary and
(E.D. Cal. 2007)
FWS BiOp
capricious and remanded to the agency. The court found
that the BiOp’s take limits were based on inadequate
historical data that did not reasonably estimate the delta
smelt’s population. The court also found that FWS did
not consider available data on climate change and the
possible impacts on the smelt’s critical habitat. Final y,
the court was not convinced mitigation efforts were
reasonably certain to occur.
Pac. Coast Fed’n of
6/15/07 Dismissing
The court dismissed Plaintiff’s NEPA claim that the
Fishermen’s Ass’n/Inst.
NEPA Claim
Bureau was required to prepare an EIS for the 2004
for Fisheries Res. v.
OCAP. The OCAP was a descriptive document rather
Gutierrez, 1:06-cv-
than a final agency action because it was not the “last
00245, 2007 WL
word" on the issue and lacked legal effect.
1752289 (E.D. Cal. June
15, 2007)
NRDC v. Kempthorne,
7/3/07 Denying
TRO The court refused to grant a TRO on the 2005 FWS
1:05-cv-1207, 2007 WL
to Reduce
BiOp to reduce water flow to downstream users,
1989015 (E.D. Cal. July
Water Flow
holding that the evidence did not prove the delta smelt
3, 2007)
Provided by
faced irreparable harm. The potential harm to the
FWS BiOp
species did not outweigh the potential harms to societal
and economic interests from reduced pumping.
NRDC v. Kempthorne,
12/14/07 Order
granting The court granted remedial relief that set flow limits and
1:05-cv-1207, 2007 WL
Interim
triggering events. The court also required that FWS
4462391 (E.D. Cal. Dec.
Remedial Relief
draft a new BiOp and stated that remedial relief would
14, 2007)
for Flow Limits
remain in place until the new BiOp was complete.
Pacific Coast Federation
5/20/08 Remanding
2004
The court held that the 2004 NMFS BiOp conclusion
of Fishermen’s
NMFS BiOp
that salmon and steelhead were not in jeopardy was
Associations v.
arbitrary and capricious and remanded to the agency.
Gutierrez, 606 F. Supp.
The BiOp failed to analyze the impact of global climate
2d 1122 (E.D. Cal. 2008)
change and the damage to salmon and steelhead critical
habitats.
Congressional Research Service
1

---

Biological Opinions for the Sacramento-San Joaquin Delta: A Case Law Summary

Document
Case Name
Date
Title Summary
Pacific Coast Federation
7/18/08 Denying
The court refused to grant remedial relief of increased
of Fishermen’s
Plaintiff’s
water flows at Clear Creek and raised gates at the Red
Associations v.
Requests for
Bluff Diversion Dam while the new BiOp was being
Gutierrez, 606 F. Supp.
Emergency
prepared based on scientific and evidentiary disputes.
2d 1195 (E.D. Cal. 2008)
Interim
The court found that the NMFS 2004 BiOp could place
Remedies while
the salmon and steelhead at great risk of irreparable
New NMFS
harm, and that the government failed to prove that the
BiOp Being
project would not make extinction or destruction of
Prepared
critical habitats more likely.
NRDC v. Kempthorne,
9/22/08 Order
The court extended the deadline for FWS to complete
1:05-cv-01207, 2008 WL
Extending Time
the BiOp for the CVP from 9/15/2008 to 12/15/2008.
4369308 (E.D. Cal. Sept.
for FWS to
22, 2008)
Complete
Revised Delta
Smelt BiOp
BiOp 12/15/08
FWS
BiOp
FWS issued a BiOp pertaining to the effect of CVP and
Issued
SWP on delta smelt. FWS found the operations could
jeopardize the continued existence of the species.
Delta Smelt
3/3/09 Complaint
Filed
First complaint filed against 2008 FWS BiOp by San Luis
Consolidated Cases, No.
that Became
& Delta-Mendota Water Authority and Westlands
1:09-cv-407 (E.D. Cal.
Delta Smelt
Water District. Five other complaints were filed and
2009)
Consolidated
consolidated: Coalition for Sustainable Delta (1:09-cv-
Cases
422); Metropolitan Water district of Southern California
(1:09-cv-631); State Water Contractors (1:09-cv-480);
Stewart and Jasper Orchards (1:09-cv-892); Family Farm
Alliance (1:09-cv-1201).
NRDC v. Kempthorne,
4/27/09 Renewal
of
The court held that Bureau does not have to consult
621 F. Supp. 2d 954
Senior Water
under ESA for water contracts. Senior water rights
(E.D. Cal. 2009)
Rights
contracts were non-discretionary obligation for Bureau,
Contracts Not
so ESA did not apply.
Subject to ESA
Delta Smelt
5/29/09 Granting
The court granted preliminary injunction of 2008 FWS
Consolidated Cases,
Preliminary
BiOp RPA Component 2. The court held that it was
1:09-CV-407, 2009 WL
Injunction to
likely that FWS had failed to comply with NEPA before
1575169 (E.D. Cal. May
Halt FWS BiOp
issuing BiOp and did not base holding on ESA.
29, 2009)
RPA
Component 2
BiOp 6/4/09
NMFS
BiOp
NMFS issued a BiOp pertaining to the effect of CVP and
Issued
SWP on Chinook salmon, steelhead trout, green
sturgeon, and southern resident killer whales. NMFS
found the CVP/SWP operations could jeopardize the
continued existence of the species.
Consolidated Salmonid
6/15/09 Complaint
Filed
San Luis & Delta-Mendota Water Authority and
Cases, 1:09-cv-1053
that Became
Westlands Water District file case, which becomes the
(E.D. Cal. 2009)
Consolidated
Consolidated Salmonid Cases upon 9/23/2009
Salmonid Cases
consolidation with cases brought by Stockton East
Water District, Metropolitan Water District of
Southern California, Oakdale Irrigation District, Kern
County Water Agency, and State Water Contractors.
Congressional Research Service
2

---

Biological Opinions for the Sacramento-San Joaquin Delta: A Case Law Summary

Document
Case Name
Date
Title Summary
NRDC v. Kempthorne,
9/1/09 Renewal
of The court rejected NRDC’s argument that Bureau failed
1:05-cv-01207, 2009 WL
CVPIA
to perform ESA consultation for executing contracts
2849626 (E.D. Cal. Sept.
Contracts Not
under CVPIA. The court held that contracts were
1, 2009)
Subject to ESA
nondiscretionary. Also, because the contracts already
allowed Bureau to stop delivery if delta smelt would be
harmed, there was no basis for any ESA claim.
Consolid. Salmonid
9/3/09 Granting
Federal defendants (Department of Commerce, NOAA,
Cases, 1:09-cv-1053
Intervention for
NMFS, Department of the Interior, FWS, Bureau) are
(E.D. Cal. 2009)
Defendant-
joined by defendant intervenors: Pacific Coast
Intervenors
Federation of Fishermen’s Associations/Institute for
Fisheries Resources, The Bay Institute, Friends of the
River, Natural Resources Defense Council, Northern
California Council of the Federation of Fly Fishers, San
Francisco Baykeeper, Sacramento River Preservation
Trust, and Winnemem Wintu Tribe.
Delta Smelt
9/4/09 Amended
Plaintiffs, San Luis & Delta Mendota Water District and
Consolidated Cases,
Complaint
Westlands Water District, amended complaint to add
1:09-cv-407 (E.D. Cal.
Bureau as defendant.
2009)
NRDC v. Kempthorne,
9/23/09
Judgment
Resolved complaints by NRDC and others against
1:05-cv-1207 (E.D. Cal.
Bureau and FWS for 2005 BiOp and water flow issues.
2009)
Notices of appeals filed by Department of the Interior
(11/19/2009) and NRDC (11/25/2009).
Delta Smelt
10/15/09
RPAs are Not
The court rejected the summary judgment motion that
Consolidated Cases, 666
Procedurally
FWS’s failure to make findings within the 2008 FWS
F. Supp. 2d 1137 (E.D.
Flawed
BiOp regarding four factors in the regulatory definition
Cal. 2009)
of RPA was arbitrary and capricious.
Delta Smelt
11/13/09 Requiring
The court held that Bureau’s implementation of the
Consolidated Cases, 686
Bureau to
2008 FWS BiOp RPA was a major federal action. Bureau
F. Supp. 2d 1026 (E.D.
Comply with
had to prepare EIS before implementing BiOp. Summary
Cal. 2009)
NEPA for FWS
judgment in favor of plaintiffs. Order issued 12/9/2009.
BiOp RPAs
Coalition for a
11/17/09 Consolidates The court granted FWS’s motion to sever claims against
Sustainable Delta v. U.S.
2008 BiOp
EPA and other agencies from the BiOp claims against
Fish and Wildlife Service,
Claims with
FWS. The plaintiff had argued the other agencies were
1:09-cv-480, 2009 WL
Other Delta
also responsible for harm to the smelt. The claims
3857417 (E.D. Cal.
Smelt Cases
related to the FWS 2008 BiOp were consolidated with
2009)
the other delta smelt cases.
Consol. Salmonid Cases,
1/27/10
Motion for TRO Motions filed by San Luis & Delta-Mendota Water
1:09-cv-1053 (E.D. Cal.
Filed/ Motion
Authority and Westlands Water District to halt
2010)
for Preliminary
implementation of 2009 NMFS BiOp RPA Action IV.2.3.
Injunction
Delta Smelt
1/27/10
Motion for TRO Motion filed by San Luis & Delta-Mendota Water
Consolidated Cases,
Authority and Westlands Water District to halt
1:09-cv-407 (E.D. Cal.
implementation of 2008 FWS BiOp RPA Component 1.
2010)
Consol. Salmonid Cases,
2/5/10 Granting
TRO
The court granted a TRO to 2009 NMFS BiOp RPA
1:09-cv-1053, 2010 WL
for NMFS BiOp
Action IV.2.3 regarding storing water from storms. The
500455 (E.D. Cal. Feb. 5,
RPA IV.2.3
court found that the plaintiffs had not shown a
2010)
likelihood of success on the ESA claims, but the NEPA
violation had been established.
Congressional Research Service
3

---

Biological Opinions for the Sacramento-San Joaquin Delta: A Case Law Summary

Document
Case Name
Date
Title Summary
Delta Smelt
2/5/10 Denying
TRO The court denied the TRO for the 2008 FWS BiOp. No
Consolidated Cases,
for FWS BiOp
smelt were spotted in the area of the pumps; therefore,
1:09-cv-407 (E.D. Cal.
the federal government was not implementing the RPA
2010)
that was being challenged.
Delta Smelt
2/12/10 Denying
Second
The court refused to grant a TRO that would have
Consolidated Cases, 693
Motion for TRO prevented the water flow reductions described in 2008
F. Supp. 2d 1145 (E.D.
for FWS BiOp
FWS BiOp Component 1, Action 2. The court held that
Cal. 2010)
Component 1
it could not issue a TRO based solely on NEPA if it
would lead to a violation of the ESA. The court noted
FWS argument that stopping the RPA could jeopardize
delta smelt.
Consol. Salmonid Cases,
2/22/10
Motion for TRO Motion filed by San Luis & Delta Mendota Water
1:09-cv-1053 (E.D. Cal.
Authority and Westlands Water District to halt
2010)
implementation of RPA Action IV.2.1.
Consol. Salmonid Cases,
3/5/10 Requiring
The court held that the Bureau failed to comply with
688 F. Supp. 2d 1013
Bureau to
NEPA in implementing RPAs from the 2009 NMFS BiOp.
(E.D. Cal. 2010)
Comply with
NEPA for NMFS
BiOp RPAs
(Order issued
3/18/10)
Consol. Salmonid Cases,
5/18/10 Granting
The court granted a preliminary injunction halting
713 F. Supp. 2d 1116
Preliminary
implementation of RPA IV.2.1 (through May 31) and
(E.D. Cal. 2010)
Injunction
IV.2.3 (through June 15) of 2009 NMFS BiOp. The court
Against
held that the balance of equities weighed in favor of the
Implementation
injunction—effects of loss of water supply would be
of 2009 NMFS
more severe than effects of reduced water for salmon
BiOp RPA IV.2.1 and steelhead. The court questioned NMFS’s conclusion
and IV.2.3
that exports hurt salmon survival without examining
(Order Issued
other negative impacts on salmon. Supplemental Findings
5/27/10)
of Fact were issued 6/1/2010.
Delta Smelt
5/27/10 Preliminary
The court granted a preliminary injunction of 2008 FWS
Consolidated Cases, 717
Injunction
BiOp RPA Component 2, having to do with water flow
F. Supp. 2d 1021 (E.D.
Against
from the time delta smelt have spawned until June 20 of
Cal. 2010)
Implementation
each year. The court found that FWS did not use best
of 2008 FWS
available science to support water flow levels,
BiOp
particularly regarding use of gross salvage numbers, and
that FWS violated NEPA.
Delta Smelt
6/22/10 Operational All parties stipulated to joint operational plan for term
Consolidated Cases,
Plan
of preliminary injunction.
1:09-cv-407 (E.D. Cal.
2011)
Delta Smelt
12/14/10 Decision
The court remanded the 2008 FWS BiOp for violating
Consolidated Cases, 760
Remanding 2008 the ESA in part by relying on data that were not the best
F. Supp. 2d 855 (E.D.
FWS BiOp
available science. The court found that the conclusion—
Cal. 2010)
(Order Issued
that pump entrainment will adversely affect the smelt—
12/23/2010)
was justified, but the flow prescriptions were flawed.
The court also held that FWS failed to consider whether
RPAs were economically and technically feasible,
interpreting those terms as applying to downstream
water users. FWS did not violate NEPA when issuing
BiOp.
Congressional Research Service
4

---

Biological Opinions for the Sacramento-San Joaquin Delta: A Case Law Summary

Document
Case Name
Date
Title Summary
NRDC v. Salazar, 1:05-
2/2/11 Stipulation Department of the Interior will pay $1,906,500 to
cv-1207 (E.D. Cal. 2011)
Settling
NRDC in ful settlement of attorneys’ fees and costs for
Attorneys Fees
chal enges of 2004 and 2005 BiOps.
Consol. Salmonid Cases,
2/3/11 Motion
for Motion filed by Coalition for a Sustainable Delta and
1:09-cv-1053 (E.D. Cal.
Preliminary
Kern County Water Agency to halt implementation of
2011)
Injunction
certain RPAs.
Delta Smelt
2/24/11 Proposed
The parties agreed that while Components 2 and 3 of
Consolidated Cases,
Interim Remedy
the 2008 FWS BiOp were in effect, water flow would
1:09-cv-407 (E.D. Cal.
Through
have a 14-day average flow between -1,250 and -6,100
2011)
6/30/2011
cfs.
San Luis & Delta-
3/25/11 Upholding
ESA The Ninth Circuit upheld lower court that application of
Mendota Water
Constitutionality the ESA to delta smelt (an intrastate fish with no
Authority v. Salazar, 638
commercial value) is nonetheless constitutional. Based
F.3d 1163 (9th Cir. 2011)
on Supreme Court precedent, the Ninth Circuit found
that the ESA is “substantially related" to interstate
commerce. Upholds decision of 663 F. Supp. 2d 922
(E.D. Cal. 2009).
Consol. Salmonid Cases,
3/28/11 Notification
of Federal defendants notified the court that RPA Action
1:09-cv-1053 (E.D. Cal.
Court
IV.2.1 will not be implemented this year.
2011)
Delta Smelt
3/29/11 Judgment
ending
Final decision summarizing earlier orders: Reclamation
Consolidated Cases,
Delta Smelt
violated NEPA and ESA; FWS did not violate NEPA;
1:09-cv-407 (E.D. Cal.
Consolidated
BiOp violated ESA; RPA is remanded with new BiOp to
2011)
Cases
be completed by 10/1/2011; and Interim remedy
ordered on 2/24/2011 remains in place through
6/30/2011.
Consol. Salmonid Cases,
3/30/11
Order
Parties agreed that pending motions for TRO and a
1:09-cv-1053 (E.D. Cal.
preliminary injunction were moot in light of federal
2011)
defendants’ announcement of 3/28/2011. Motions
withdrawn.
Delta Smelt
4/7/11 Notice
of
NRDC and The Bay Institute (defendant-intervenors)
Consolidated Cases,
Appeal Filed
filed an appeal with the Ninth Circuit.
1:09-cv-407 (E.D. Cal.
2011)
Delta Smelt
5/4/11 Amended
In response to motion by Federal Defendants, Court
Consolidated Cases,
Judgment
modified 12/14/10 judgment to require completion of
1:09-cv-407 (E.D. Cal.
FWS BiOp by 12/1/13, instead of 10/1/11.
2011)
Delta Smelt
6/8/11 Motion
for Water users challenged 2008 FWS BiOp RPA Fall X2,
Consolidated Cases,
Preliminary
which would take place in September 2011, arguing that
1:09-cv-407 (E.D. Cal.
Injunction Filed
science did not show that those water flow reductions
2011)
would increase delta smelt abundance.
San Luis & Delta
6/10/11 Motions
for Motion for TRO and preliminary injunction filed to halt
Mendota Water
TRO and
Bureau’s reduction of water flow to aid fall-run Chinook
Authority v. U.S.
Preliminary
salmon, which is not an ESA-listed species. Suit alleged
Department of the
Injunction
violation of CVPIA §3411(b).
Interior, 1:11-cv-952
(E.D. Cal. 2011)
Congressional Research Service
5

---

Biological Opinions for the Sacramento-San Joaquin Delta: A Case Law Summary

Document
Case Name
Date
Title Summary
San Luis & Delta
6/15/11
Order
The court ruled from the bench, denying plaintiffs’
Mendota Water
motions for TRO and preliminary injunction to increase
Authority v. U.S.
water flow at delta pumps.
Department of the
Interior, 1:11-cv-952
(E.D. Cal. 2011)
Stewart & Jasper
6/22/11
Petition for a
Water users wanted the U.S. Supreme Court to review
Orchards v. Salazar, No.
Writ of
a March 2011 Ninth Circuit decision, which held that
10-1551 (S. Ct. 2011)
Certiorari Filed
applying the ESA to delta smelt is constitutional (638
F.3d 1163 (9th Cir. 2011)).
Delta Smelt
6/24/11 Jurisdiction
to Court found that it had jurisdiction to review 6/8/11
Consolidated Cases,
Hear Motion for Motion for Preliminary Injunction, rejecting federal
1:09-cv-407 (E.D. Cal.
Preliminary
defendants’ argument that court’s 12/14/10 decision
2011)
Injunction
(now on appeal) prevented review.
Delta Smelt
6/30/11 Notice
of
State Water Contractors filed an appeal of 12/14/10
Consolidated Cases,
Appeal Filed
decision with the Ninth Circuit.
1:09-cv-407 (E.D. Cal.
2011)
Delta Smelt
7/1/11 Notice
of
Federal defendants filed appeal of 12/14/10 decision with
Consolidated Cases,
Appeal Filed
the Ninth Circuit.
1:09-cv-407 (E.D. Cal.
2011)
Delta Smelt
9/2/11 Preliminary Court halted implementation of 2008 FWS BiOp RPA
Consolidated Cases,
Injunction
Fall X2, which pertains to flow levels. The timing and
1:09-cv-407 (E.D. Cal.
measurement of that action were allowed to continue.
2011)
San Luis & Delta
9/6/11 Written
Court denied motion for preliminary injunction to
Mendota Water
Decision of 6/15 restore flow at a pump station. Motion was based on
Authority v. U.S.
Denial of
CVPIA §3411.
Department of the
Preliminary
Interior, 1:11-cv-952,
Injunction
2011 U.S. Dist. LEXIS
99956 (E.D. Cal. 2011)
Delta Smelt
9/6/11 Notice
of
NRDC and The Bay Institute (defendant-intervenors)
Consolidated Cases,
Appeal
filed an appeal with the Ninth Circuit of the 9/2/11
1:09-cv-407 (E.D. Cal.
Filed/Motion for
decision halting implementation of 2008 FWS BiOp RPA.
2011) (Ninth Cir. Doc.
Stay Filed
A motion to stay that decision was also filed.
No. 11-17143)
Delta Smelt
9/13/11 Amended
Court amended the Preliminary Injunction of 9/2/11 to
Consolidated Cases,
Order
prohibit implementation of 2008 FWS BiOp RPA 74km
1:09-cv-407 (E.D. Cal.
X2 Target during 2011, or setting the X2 Target
2011)
downstream or west of 79 km in 2011.
Consol. Salmonid Cases,
9/20/11 Memorandum Court held that jeopardy conclusion of 2009 NMFS
791 F. Supp. 2d 802
Decision on
BiOp was correct, but that RPAs were not adequately
(E.D. Cal. 2011)
Summary
justified or supported by the record. BiOp was
Judgment
remanded.
Congressional Research Service
6

---

Biological Opinions for the Sacramento-San Joaquin Delta: A Case Law Summary

Document
Case Name
Date
Title Summary
Delta Smelt
9/26/11 Second
Court stayed Amended Order of 9/13/11 to allow Fall
Consolidated Cases,
Amended
X2 water flow through 10/15/11 but prohibited
1:09-cv-407 (E.D. Cal.
Order/Partial
implementation of 74 km X2 Target from 10/16/11
2011
Stay
through 11/30/11, and prohibited setting the X2 Target
downstream or west of 79 km from 10/16/11 through
12/31/11.
Consol. Salmonid Cases,
9/29/11
Order
Court directed the remand of the 2009 NMFS BiOp (as
1:09-cv-1053 (E.D. Cal.
discussed in the Memorandum Decision of 9/20/11). The
2011)
BiOp was not vacated.
Stewart & Jasper
10/31/11
Petition for writ
Supreme Court refused to review issue of whether ESA
Orchards v. Salazar, No.
of certiorari
application to delta smelt was constitutional.
10-1551 (S. Ct. 2011)
denied
Consol. Salmonid Cases,
12/12/11
Final Judgment
Court ordered NMFS to transmit a draft salmon BiOp
1:09-cv-1053 (E.D. Cal.
by 10/1/14, and a final BiOp by 2/1/16; and the Bureau to
2011)
issue a final EIS by 2/1/16, and a record of decision by
4/29/16.
Consol. Salmonid Cases,
1/19/12 Notice
of
Environmental groups appealed the judgment of
1:09-cv-1053
Appeal
12/12/11.
Congressional Research Service
7

---

Biological Opinions for the Sacramento-San Joaquin Delta: A Case Law Summary

Appendix A. List of Acronyms and Abbreviations
Used in Table

BiOp
Biological Opinion (see 16 U.S.C. §1536(b))
Bureau
U.S. Bureau of Reclamation of the Department of the Interior
cfs
cubic feet per second
CVP
Central Valley Project
CVPIA
Central Val ey Project Improvement Act (P.L. 102-575, Title 34)
DOI
Department of the Interior
E.D. Cal.
Federal District Court for the Eastern District of California
EIS
Environmental Impact Statement
ESA
Endangered Species Act (16 U.S.C. §§1531-1544)
FWS
U.S. Fish and Wildlife Service of the Department of the Interior
NEPA
National Environmental Policy Act (42 U.S.C. §§4321-4332)
NMFS
National Marine Fisheries Service of the Department of Commerce
NRDC
Natural Resources Defense Council
OCAP
Operations Criteria and Plan
RPA
Reasonable and Prudent Alternatives (see 16 U.S.C. §1536(b)(3)(A))
S. Ct.
U.S. Supreme Court
SWP
State Water Project
TRO
Temporary Restraining Order
9th Cir.
U.S. Federal Court of Appeals for the Ninth Circuit (which includes the Eastern
District of California)
X2
Geographical location where the isohaline levels of a river are at 2 parts per
thousand. Setting X2 Targets requires changing freshwater flow levels in order
to push that concentration level farther out to the estuaries.

Congressional Research Service
8

---

Biological Opinions for the Sacramento-San Joaquin Delta: A Case Law Summary

Appendix B. Brief Description of Cases in Table

Party(ies)
Case No. and Court
Basis of Claim(s)
NRDC v. Kempthorne (original y
1:05-cv-1207 (E.D. Cal)
Adequacy of FWS 2004 and 2005
NRDC v. Norton)
Delta Smelt BiOps (which found fish
were not jeopardized by CVP/SWP
operations).
Pacific Coast Federation of
1:06-cv-245 (E.D. Cal.)
Adequacy of NMFS 2005 Salmonid
Fishermen’s Associations v.
BiOp (which found fish were not
Gutierrez
jeopardized by CVP/SWP operations).
Delta Smelt Consolidated Cases
1:09-cv-407 (E.D. Cal.)
Adequacy of 2008 FWS Delta Smelt
(defendant is Salazar) (a/k/a San
BiOp (which found fish were
Luis & Delta-Mendota Water
jeopardized by CVP/SWP operations).
Authority v. Salazar)
Coalition for a Sustainable Delta v. 1:09-cv-480 (E.D. Cal.)
Adequacy of 2008 FWS Delta Smelt
U.S. Fish and Wildlife Service
BiOp (which found fish were
jeopardized by CVP/SWP operations).
Consolidated Salmonid Cases
1:09-cv-1053 (E.D. Cal.)
Adequacy of 2009 NMFS Salmonid
(defendant is Locke) (a/k/a San
BiOp (which found fish were
Luis & Delta-Mendota Water
jeopardized by CVP/SWP operations).
Authority v. Locke)
San Luis & Delta-Mendota Water
1:11-cv-952 (E.D. Cal.)
Lawfulness of water flow reduction to
Authority v. U.S. Department of
aid fall-run Chinook, which is not a
the Interior
listed species. Not part of BiOp
challenges.
Stewart & Jasper Orchards v.
No. 10-1551 (S. Ct.)
Constitutionality of ESA consultation
Salazar (part of Delta Smelt
requirement as applied to delta smelt.
Consolidated Cases)
Source: Congressional Research Service.

Author Contact Information

Kristina Alexander

Legislative Attorney
kalexander@crs.loc.gov, 7-8597


Congressional Research Service
9

---