The Ninth Circuit vindicated environmental and fishing group plaintiffs in their 14-year litigation to implement the Central Valley Project Improvement Act’s (“CVPIA”) requirement to reallocate 800,000 acre-feet of federal project water back to the ecosystem.
The 1992 CVPIA, also known as the Miller-Bradley bill for its co-sponsors, requires that the federal government double Central Valley salmon population levels from their average of several decades ago. California has adopted a similar salmon doubling objective. Key to meeting this goal was the directive that the Department of the Interior must dedicate 800,000 acre-feet of Central Valley Project water for salmon and other restoration measures in the CVPIA.
Federal water contractors have strongly resisted the reallocation of the 800,000 acre-feet for salmon, and have fought hard in the federal courts to eliminate this requirement. For many years they have insisted that any water released for any regulatory purpose had to be deducted from the salmon water set dedication, whether or not it would contribute to the salmon doubling mandate. The effect of this interpretation was, as the Court ruled, to relegate the salmon population mandate to a secondary role, or even no role at all.
Today, the Ninth Circuit firmly and finally rejected the position of the Westlands Water District and other CVP water contractors that the 800,000 acre-foot dedication is unrelated to the salmon doubling requirement and can be used primarily for non-CVPIA purposes. The bottom line is that going forward, the federal government is obligated to fully implement this Congressional direction and to provide the water necessary to achieve the salmon doubling requirement. Its failure to do so to date is certainly one of the reasons that Central Valley salmon continue to fare so poorly, and why the agency has fallen so far short of the Congressional direction to double populations.
It is long past time for the Department of Interior to set aside the policy guidance developed during the Bush administration that limits the amount of the CVPIA dedicated water to support salmon doubling objectives. The Court of Appeals has now cleared the way for a new more appropriate, and more legally defensible, implementation policy.