ELR Citation: 53 ELR 20188
No(s). 22-15809 (9th Cir. Dec 4, 2023)

The Ninth Circuit reversed summary judgment for FWS in a challenge to its biological opinion (BiOp) concerning water pumping impacts on ESA-protected species in Arizona's San Pedro River Basin. An environmental group argued the BiOp, which concluded that a conservation easement proposed to compensate for an Army garrison's pumping and use of water would have minimal effect on protected species and would not jeopardize them or adversely modify their habitats, lacked evidence to support its conclusion. A district court rejected the claim, finding it was reasonably likely that the land at issue would have been used for agricultural use but for the easement and that the Service did not err in determining the easement saved water. But the appellate court found FWS provided little evidence that the benefit from the easement would be "reasonably certain" under the relevant regulations and relied mostly on speculation to claim water savings, making its no-jeopardy determination arbitrary and capricious. It reversed summary judgment, vacated the BiOp, and remanded with instructions for FWS to reevaluate its water-savings analysis in a new BiOp.