9th Circuit panel rejects challenge to delta water contracts

A federal appeals court ruled Tuesday that federal water supply contracts awarded in 2005 did not violate protections for the endangered delta smelt, a small fish native to California’s Sacramento-San Joaquin River Delta estuary.

The panel of the U.S. 9th Circuit Court of Appeals ruled 2 to 1 against environmental groups that contended the U.S. Bureau of Reclamation renewed 41 water service contracts without consulting with a federal wildlife agency to determine whether the water deliveries would jeopardize the continued existence of the smelt.

The appeals court, in a ruling written by Judge Procter Hug Jr., upheld a district court’s decision that the groups lacked “standing” or the legal authority to challenge the contracts. The court also said that renewal of the pacts was required by law.

The court cited a contract provision permitting the government to reduce or stop water deliveries to comply with endangered species requirements. Therefore, the court said, the contracts did not present a threat to the fish.

The court also said consultation obligations under the endangered species law did not apply because renewal of the contracts was obligatory.

“The bureau’s hands are tied historically by those asserting senior water rights,” wrote Hug, an appointee of former President Jimmy Carter.

Judge Richard A. Paez, who was appointed by former President Bill Clinton, dissented on both points. He contended that the groups presented extensive evidence that the habitat of the fish could have been improved if the water agency had sought guidance from wildlife authorities. Even though the contracts permit the agency to comply with endangered species protections, they do “not ensure the bureau will do so,” Paez wrote.

maura.dolan@latimes.com