Perkins Coie Update: The Ninth Circuit concludes that renewal of water delivery contracts was not “agency action” under Section 7 of the ESA

  • News
  • by BPC Staff
  • on July 26, 2012

The Ninth Circuit Interprets “Agency Action” Under the Endangered Species Act – Again


In Natural Resources Defense Council v. Salazar, the Ninth Circuit concludes that renewal of water delivery contracts with senior priority water rights holders is not an “agency action” under Section 7 of the ESA.

  • The decision is a strong counterbalance to the Ninth Circuit’s June 1, 2012, opinion in Karuk Tribe of California v. U.S. Forest Service, 681 F.3d 1006 (9th Cir. 2012), which adopted an expansive definition of “agency action” under the ESA. For more information on this decision, please read our recent update “Ninth Circuit Expands ‘Agency Action’ for Endangered Species Act Consultation.”
  • The decision also ruled that environmental plaintiffs groups lacked standing to challenge the U.S. Bureau of Reclamation’s decision to renew other water service contracts. The court reasoned that there was no “causal connection” between the renewal of these contracts and possible harm to the delta smelt, as the Bureau retained the authority to protect fish by reducing water deliveries during drought years.
  • The decision is a victory for water users in continuing litigation over water deliveries and delta smelt protection in California’s Central Valley that has lasted the better part of a decade.