The federal Bureau of Reclamation violated the Endangered Species Act by renewing Friant Dam water contracts prior to completing required consultations with the U.S. Fish & Wildlife Service and the National Marine Fisheries Service, the Ninth U.S. Circuit Court of Appeals has ruled. The court has also overturned District Court Judge Lawrence Karlton's decision that environmentalists' challenges to the renewal of the water contracts under the California Fish & Game Code were moot. The case involves the Bureau's decision to continue renewing water contracts with local irrigation districts in the San Joaquin Valley after the passage of the Central Valley Project Improvement Act in 1992 - a law that imposed new environmental requirements on CVP water contractors. The Bureau had begun renewing CVP water contracts in 1988, but when the CVPIA was passed four years later half of the 28 water contracts were still pending. The CVPIA imposed several new requirements on the Bureau. Among other things, it restricted water contracts to 25 years in length rather than 40, and it required the Bureau to prepare an environmental impact statement on the contract renewals. Among the complicating factors in the water contract renewals was the listing of the winter-run chinook salmon as endangered. The Natural Resources Defense Council and other environmental groups who sued the Bureau claimed that the Bureau violated the federal Endangered Species Act by not concluding satisfactory consultation with the two agencies that deal with endangered species, the National Marine Fisheries Service and the U.S. Fish & Wildlife Service. In response to the lawsuit, Judge Karlton rescinded the contracts issued after the winter-run chinook was listed. NMFS has jurisdiction over the winter-run chinook. Rather than consult initially with the agency, the Bureau of Reclamation independently concluded that the renewal of the water contracts would not harm the winter-run chinook and then sought NMFS's concurrence. NMFS responded by disagreeing with the Bureau of Reclamation's conclusion, but also by adding that it did not believe a consultation was necessary under the species law. In the appellate ruling, the Ninth Circuit concluded that both agencies were wrong. "The Bureau had an affirmative duty to ensure that its actions did not jeopardize endangered species, and the NMFS letter clearly disagreed with the agency's determination of no adverse impact," the Ninth Circuit wrote. "Under those circumstances, regardless of the NMFS position that a formal consultation was 'unnecessary', the Bureau had a clear legal obligation to at least request a formal consultation." By not doing so, the court wrote, the Bureau "acted arbitrarily and capriciously and not in accordance with the law". For that reason, Judge Karlton was correct in rescinding the contracts. The Ninth Circuit found a similar flaw in the Bureau's consultation with the Fish & Wildlife Service, which has jurisdiction over several other protected species in the Friant Dam area. In this case, although information consultation had take place over a two-year period, the formal consultation was not requested until after a number of the contracts had been renewed. "Even where there is a 'no jeopardy' biological opinion, the service may make non-binding conservation recommendations," the court wrote. "The failure to respect this process mandated by law cannot be corrected with post-hoc assessments of a done deal". In other aspects of the ruling, the court also concluded that: o Individual circumstances involving a number of local irrigation districts did not require the court to set aside Judge Karlton's contract rescissions in those situations. o While the Bureau of Reclamation may have violated the National Environmental Policy Act by not preparing an environmental assessment or EIS as required by the CVPIA, this question was rendered moot by Judge Karlton's action of rescinding the contracts. o Judge Karlton erred in ruling that the environmentalists' challenge to the water contract renewals under California Fish & Game Code §5937 was not ripe. This section requires that dams allow sufficient water to pass in order to keep fisheries in good condition. Judge Karlton ruled that this challenge was not ripe because the question of whether the federal government must abide by §5937 is in dispute. However, the Ninth Circuit concluded that the section is not pre-empted by federal law in its face, and therefore the court remanded this challenge to Judge Karlton for further action. The Case: NRDC v. Houston, No. 97-16030, 98 Daily Journal D.A.R. 5872 (issued June 24, 1998). The Lawyers: For NRDC and other environmental groups: Philip F. Atkins-Pattenson, Sheppard, Mullin, Richter & Hampton, 415) 434-9100. For Friant Water User Authority: Gregory K. Wilkinson, Best, Best & Krieger, (909) 686-3958. For Bureau of Reclamation: Louis J. Schiffer, U.S. Department of Justice.