An appeals court said TODAY that federal officials should have consulted wildlife agencies about potential harm to a tiny, threatened fish before issuing contracts for water from the Sacramento-San Joaquin Delta, as reported by Paul Elias of the Associated Press.

An 11-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco ruled that the U.S. Bureau of Reclamation violated the Endangered Species Act when it failed to consult with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service in renewing 41 contracts a decade ago. The appeals court sent the case back to a trial judge for further proceedings.

The ruling arises from one of several lawsuits filed by the Natural Resources Defense Council and other environmentalists seeking to protect the Delta smelt. The ruling won’t affect water flows because protections for the smelt were kept in place during the lawsuit.

“This about how we are going to manage the water in the future,” said Douglas Obegi, a lawyer with the Natural Resources Defense Council.

Water-rights holders and government lawyers argued that consultation wasn’t necessary because the U.S. Bureau of Reclamation was required to renew the contracts and had no discretion over terms of the agreement that would control water levels in the Delta.

But the 9th Circuit disagreed, saying the Bureau had discretion over price and delivery times of the water, which affect water flow. Therefore, it has to consult with one of the other two agencies. The court also said that the bureau wasn’t required to renew the contracts.

Stuart Somach, a lawyer representing water-rights holders who intervened to fight the lawsuit, said the ruling “destabilizes” the state’s water-allocation system because it raises uncertainty over the contracts and water delivery.

Somach said he and his clients are still mulling their options, which include petitioning the U.S. Supreme Court to review the decision. They could also try to convince the trial judge to keep the contracts in place, he said.

His clients own water rights with or without contracts, which ensure predictable water allocation, Somach said. Predictability is lost if the contracts are invalidated, he said.

“The big loser in all of this is the state of California,” Somach said.

Source: Paul Elias, Associated Press.

Plaintiffs among the cluster of cases:

Natural Resources Defense Council; California Trout; San Francisco Baykeeper; Friends Of The River; The Bay Institute, All Non-Profit Organizations, Plaintiffs-Appellants, And Metropolitan Water District Of Southern California, Plaintiff In Related Case

V.

Defendant-intervenors–Appellees:

Jewell Associates, Lp; Reclamation District 1004; Beverly F. Andreotti; Banta-Carbona Irrigation District; Patterson Irrigation District; West Side Irrigation District; Byron Bethany Irrigation District; Carter Mutual Water Company; Howald Farms, Inc.; Maxwell Irrigation District; Meridian Farms Water Company; Oji Brothers Farms, Inc.; Henry D. Richter; Sutter Mutual Water Co.; Tisdale Irrigation And Drainage Company; Windswept Land And Livestock Company; City Of Redding; Coelho Family Trust; Eagle Field Water District; Mercy Springs Water District; Oro Loma Water District; Conaway Preservation Group; Del Puerto Water District; West Stanislaus Irrigation District; Fresno Slough Water District; James Irrigation District; Tranquillity Irrigation District; Christo D. Bardis; Abdul Rauf; Tahmina Rauf; David And Alice Te Velde Family Trust; Fred Tenhunfeld; Family Farm Alliance, San Luis & Delta-Mendota Water Authority; Westlands Water District; California Farm Bureau Federation; State Water Contractors; California Department Of Water Resources; Glenn-Colusa Irrigation District; Natomas Central Mutual Water Company; Pelger Mutual Water Company; Pleasant Grove- Verona Mutual Water Company; Reclamation District 108; River Garden Farms Company; Princeton-Codora- Glenn Irrigation District; Provident Irrigation District; Kern County Water Agency