ELR Citation: ELR 20266
No(s). 06-4686 (C.D. Cal. Nov 10, 2009)

A district court held that the Bureau of Reclamation violated NEPA by failing to perform any environmental review prior to provisionally adopting and implementing the FWS' 2008 biological opinion and reasonable and prudent alternative (RPA) on the threatened delta smelt in connection with the coordinated operations of the Central Valley Project and State Water Project. Under the biological opinion and RPA, the projects' water delivery operations must be materially changed to restrict project water flows to protect the smelt. Both the FWS and Bureau of Reclamation participated to some degree in the agency action at issue here. But Reclamation is the appropriate lead agency for purpose of NEPA review. Reclamation was not bound by the biological opinion until it chose to proceed with the project and implement the RPA. Once Reclamation did so, operation of the projects became the relevant agency action, and Reclamation, as the action agency, is the more appropriate lead agency. Because Reclamation's implementation of the biological opinion and RPA constitutes a major federal action since they cause a change to the operational status quo of an existing project, and because the projects may cause significant degradation of the human environment, Reclamation violated NEPA in failing to conduct any environmental review.