ELR Citation: 44 ELR 20089
No(s). 09-17661 (9th Cir. Apr 16, 2014)

The Ninth Circuit held that the Bureau of Reclamation should have consulted with FWS or NMFS on impacts to the threatened delta smelt prior to renewing long-term water contracts pertaining to California's Central Valley Project. ESA §7(a)(2) requires such consultation so long as the agency has “some discretion” to take action for the benefit of a protected species. Based on the court's review of the challenged contracts, the court concluded that the Bureau retained “some discretion” to act in a manner that would benefit the delta smelt. For example, it is at least plausible that a decision not to renew the contracts could benefit the delta smelt and their critical habitat. The Bureau was therefore required to engage in §7(a)(2) consultation prior to renewing the contracts.