Central Delta Water v. Fish and Wildlife, 1:09-CV-00861 OWW DLB.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Citation653 F.Supp.2d 1066
Docket NumberNo. 1:09-CV-00861 OWW DLB.,1:09-CV-00861 OWW DLB.
PartiesCENTRAL DELTA WATER AGENCY and South Delta Water Agency, Plaintiffs, v. UNITED STATES FISH AND WILDLIFE SERVICE, et al., Defendants.
Decision Date08 September 2009

Diane Kindermann, Glen Hansen, Abbott & Kindermann, Sacramento, CA, for Plaintiffs.

Charles Ray Shockey, United States Department of Justice, Deborah A. Wordham, Michael Lewis Crow, Randy Lee Barrow, California Attorney General's Office, Linus Serafeim Masouredis, Metropolitan Water District of Southern California, Eileen M. Diepenbrock, Diepenbrock Harrison, Kevin M. O'Brien, Maya Ries Ferry, Downey Brand LLP, Christian Charles Scheuring, Karl E. Fisher, California Farm Bureau Federation, Sacramento, CA, Paul S. Weiland, Nossaman LLP, Irvine, CA, Andrew B. Sabey, Scott B. Birkey, Cox, Castle & Nicholson LLP, Elizabeth Avery Lake, Peter W. Landreth, Rafe Petersen, Holland And Knight, LLP, Sarah Ratcliffe Choi, Sonnenschein Nath & Rosenthal, LLP, San Francisco, CA, Danial Zackary Smith, Law Office of Danial Zackary Smith, Visalia, CA, for Defendants.


OLIVER W. WANGER, District Judge.


This case concerns the ongoing development and preliminary environmental review of the Bay Delta Conservation Plan ("BDCP"), a yet-to-be consummated collaborative approach to restoring the Sacramento-San Joaquin Delta ecosystem, while also protecting water supplies. See Defendants' Request for Judicial Notice ("DRJN"), Ex. A, BDCP: An Overview and Update (March 2009) ("Overview and Update"). Plaintiffs, Central Delta Water Agency and South Delta Water Agency, filed this lawsuit against the members of the BDCP "Steering Committee,"1 alleging that: (1) defendants initiated the scoping process under the National Environmental Policy Act ("NEPA") and the California Environmental Quality Act ("CEQA") without releasing to the public a sufficiently detailed BDCP project description; (2) in retaining a contractor to study the BDCP's possible environmental impacts, defendants violated federal regulations governing contractor conflicts-of-interest; (3) federal and state agencies impermissibly are coordinating their NEPA/CEQA compliance activities; (4) the BDCP lists conservation and water supply as co-equal project goals in violation of the California Natural Communities Conservation Planning Act ("NCCPA"); and (5) the BDCP Steering Committee's meetings did not comply with the California's Bagley-Keene Open Meeting Act. See Doc. 1, Complaint. Plaintiffs have since abandoned their conflict-of-interest and NCCPA claims. Doc. 157 at 2 n. 2.

Six groups of defendants move to dismiss all of the claims in the Complaint. Doc. 106 (California Farm Bureau Federation ("CFBF")), Doc. 107 (Environmental Non-Profits), Doc. 112 (Federal Defendants), Doc. 113 (Mirant Delta LLC), Doc. 114 & 118 (Water Agency Defendants), Doc. 116 (State Defendants). The memoranda in support of these motions overlap to a considerable degree. With leave of court, Plaintiffs filed a consolidated, seventy-six page opposition. Doc. 157. All of the moving parties replied, again with largely overlapping memoranda. Docs. 175, 177-181.

Defendants jointly filed a request for judicial notice. Doc. 110. Plaintiffs also filed a separate request for judicial notice. Doc. 165. The Water Agency Defendants move to strike certain declarations and exhibits submitted by Plaintiffs in opposition to the motions to dismiss. Doc. 173.2


With the passage of NEPA in 1970, Congress "recognize[ed] the profound impact of man's activity on the interrelations of all components of the natural environment" and "declare[d] that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures ... to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans." 42 U.S.C. § 4331. In order to facilitate informed decision-making and public disclosure, federal agencies prepare an environmental impact statement ("EIS") for "major Federal actions significantly affecting the quality of the human environment." Id. § 4332(C).

NEPA, along with implementing regulations promulgated by the Council on Environmental Quality ("CEQ"), establishes procedures agencies must follow in determining whether an EIS is required and in developing the EIS itself. One of the first steps in the process of developing an EIS is "scoping," an "early and open process for determining the scope of issues to be addressed and for identifying the significant issues related to a proposed action." Id. § 1501.7. As soon as practicable after the decision is made to prepare an EIS and before scoping takes place, the lead agency3 must publish in the Federal Register a Notice of Intent ("NOI"), which must briefly describe the proposed action and proposed alternatives, provide contact information for an agency representative to answer questions about the project, and describe the agency's proposed scoping process. 40 C.F.R. § 1508.22.

B. Administrative Procedure Act ("APA").

The APA provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. Where no other statute provides a right of action, the "agency action" at issue must also be "final agency action." § 704. "A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action." Id. "Agency action" is defined as "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." § 551(13). Agency action is considered final if it "mark[s] the consummation of the agency's decision making process" and defines parties' rights and obligations or carries other legal consequences. Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997).


This is yet another lawsuit arising out of the "increasingly significant and intensifying conflict" between the ecological needs and sustainability of the Sacramento San-Joaquin Delta ("Delta") and the human users of the Delta's resources. See DRJN, Exhibit E, Overview of the Draft Conservation Strategy for the BDCP at 3 (Jan. 12, 2009) ("Draft Overview"). The Delta is the largest estuary on the west coast of the Americas, and includes parts of five California counties (Contra Costa, San Joaquin, Sacramento, Solano, and Yolo). Compl. ¶ 84. The estuary supports more than 750 species of plants and wildlife, including several species protected by the federal Endangered Species Act ("ESA"). Compl. ¶ 85. Twenty-three million people, two-thirds of California's population, obtain some of their drinking water from Delta supplies. Compl. ¶ 86. In addition, more than 4 million acres of farmland are irrigated with water from the Delta. Id.

The Delta is the hub of both the federal Central Valley Project ("CVP") and the State Water Project ("SWP") (collectively, "the Projects"), which pump water from the Delta near the city of Tracy to supply municipal, industrial, and agricultural users to the south. See Compl. ¶ 86. The Projects currently use the Delta's natural and man-made channels to convey water from incoming watersheds to those pumps. This arrangement has deleterious effects on the ecosystem, while related efforts to protect the environment cause uncertainty for those who receive water from the Delta. See Draft Overview at 3. "[T]he continuing subsidence of lands within the Delta, increasing seismic risks and levee failures, and sea level rise associated with climate change, serve to exacerbate these conflicts." Id. There is little dispute that the current system is in need of fundamental restructuring.

In 2006, various federal and state regulatory agencies, water districts, and other interested parties, began to develop the BDCP, with the stated goal of "provid[ing] for the conservation of threatened and endangered fish species in the Delta and improv[ing] the reliability of the water supply system within a stable regulatory framework." Compl. ¶ 95; Overview and Update at 1. The participants in the BDCP process have all recognized that solving the Delta's problems will require, among other things, capital improvements to the Delta's water conveyance system. BDCP Notice of Intent and Notice of Public Scoping Meetings, 74 Fed.Reg. 7,257, 7,259 (Feb. 13, 2009) ("February 2008 NOI"). Through the BDCP, Defendants intend to obtain long term incidental take permits for any planned changes to the Projects under the NCCPA and ESA. Compl. ¶ 104.

The "principal forum within which key policy and strategy issues pertaining to the BDCP will be discussed and considered" is the "Steering Committee," a group made up of the relevant federal and state regulatory agencies, numerous water contractors, and nonprofit organizations, who all signed a "Planning Agreement," setting forth the goals of the BDCP planning process. See Planning Agreement at 22-25.

On January 24, 2008, NMFS and FWS published a "Notice of Intent to Conduct Public Scoping and Prepare an Environmental Impact Report/Environmental Impact Statement," broadly outlining the BDCP. 73 Fed.Reg. 4,178 (Jan. 24, 2008) ("January 2008 NOI")...

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