Natural Resources Defense Council v. Kempthorne

Decision Date25 May 2007
Docket NumberNo. 1:05-CV-01207 OWW (TAG).,1:05-CV-01207 OWW (TAG).
Citation506 F.Supp.2d 322
CourtU.S. District Court — Eastern District of California
PartiesNATURAL RESOURCES DEFENSE COUNCIL, et al., Plaintiffs, v. Dirk KEMPTHORNE, in his official capacity as Secretary of the Interior, et al., Defendants, California Department of Water Resources, Defendant-Intervenor, State Water Contractors, Defendant-Intervenor, San Luis & Delta-Mendota Water Authority, et al., Defendant-Intervenors.

Office of Trent W. Orr, San Francisco, CA, for Plaintiffs.

James A. Maysonett, Keith W. Rizzardi, Department of Justice, Wildlife and Marine Resources Section, Washington, DC, for Defendants.

Daniel Joseph O'Hanlon, Clifford W. Schulz, Kronick, Moskovitz, Tiedemann & Girard, Jon David Rubin, Diepenbrock Harrison, Brenda Washington Davis, Christian Charles Scheuring, John Robert Hewitt, Ronda Azevedo Lucas, California Farm Bureau Federation, Deborah A. Wordham, California Attorney General's Office, Andrew Morrow Hitchings, Somach, Simmons & Dunn, Kevin M. O'Brien, Steven Paul Saxton, Downey Brand LLP, Sacramento, CA, Christopher H. Buckley, Jr., Gibson Dunn and Crutcher, Washington, DC, Gregory K. Wilkinson, Anthony Leon Beaumon, Best Best & Krieger, LLP, Riverside, CA, Mark Diaz Servino, Best Best and Krieger LLP, Irvine, CA, Clifford Thomas Lee, California Attorney General's Office, San Francisco, CA, J. Mark Atlas, Frost Krup and Atlas, Willows, CA, for Defendants-Intervenors.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT (DOC. 231/232)

OLIVER W. WANGER, District Judge.

I. INTRODUCTION

This case concerns the effect on a threatened species of fish, the Delta smelt (Hypomesus transpaeificus)1, of the coordinated operation of the federally-managed Central Valley Project ("CVP") and the State of California's State Water Project ("SWP"), among the world's largest water diversion projects. Both projects divert large volumes of water from the California Bay (Sacramento-San Joaquin) Delta ("Delta") and use the Delta to store water.

For over thirty years, the projects have been operated pursuant to a series of cooperation agreements. In addition, the projects are subject to ever-evolving statutory, regulatory, contractual, and judicially-imposed requirements. The Long-Term Central Valley Project and State Water Project Operations Criteria and Plan ("2004 OCAP" or "OCAP") surveys how the projects are currently managed in light of these evolving circumstances. At issue in this case is a 20052 biological opinion ("BiOp"), issued by the United States Fish and Wildlife Service ("FWS" or "Service") pursuant to the Endangered Species Act ("ESA"), which concludes that current project operations described in the OCAP and certain planned future actions will not jeopardize the continued existence of the Delta smelt or adversely modify its critical habitat.

The Delta smelt is a small, slender-bodied fish endemic to the Delta. Historically, Delta smelt could be found throughout the Delta. Although abundance data on the smelt indicates that the population has fluctuated wildly in the past, it is undisputed that, overall, the population has declined significantly in recent years, to its lowest reported volume in fall 2004.

In this case, Plaintiffs, a coalition of environmental and sportfishing organizations, challenge the 2005 BiOp's no jeopardy and no adverse modification findings as arbitrary, capricious, and contrary to law under the Administrative Procedure Act, 5 U.S.C. §§ 702 et seq. Before the court for decision is Plaintiffs' motion for summary judgment. Among other things, Plaintiffs allege that the BiOp fails to consider the best available science, relies upon uncertain (and allegedly inadequate) adaptive management processes to monitor and mitigate the potential impacts of the OCAP, fails to meaningfully analyze whether the 2004 OCAP will jeopardize the continued existence of the Delta smelt, fails to consider the OCAP's impact upon previously designated critical habitat, and fails to address the impacts of the entire project.

Separate opposition briefs were filed by the Federal Defendants (Doc. 242), the Department of Water Resources ("DWR") (Doc. 246), and the State Water Contractors ("SWC") (Doc. 241), along with a final brief filed collectively by San Luis & Delta-Mendota Water Authority, Westlands Water District, and the California Farm Bureau Federation ("the San Luis Parties") (Doc. 247).

II. THE ENDANGERED SPECIES ACT

A recent Ninth Circuit opinion in National Wildlife Federation v. National Marine Fisheries Service, 481 F.3d 1224 (9th Cir.2007) [hereinafter "NWF v. NMFS"], succinctly summarizes the relevant provisions of the ESA:

The ESA requires federal agencies to "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [designated critical] habitat...." 15 U.S.C. § 1536(a)(2). The ESA imposes a procedural consultation duty whenever a federal action may affect an ESA-listed species. Thomas v. Peterson, 753 F.2d 754, 763 (9th Cir.1985). To that end, the agency planning the action, usually known as the "action agency," must consult with the consulting agency. This process is known as a "Section 7" consultation. The process is usually initiated by a formal written request by the action agency to the consulting agency. After consultation, investigation, and analysis, the consulting agency then prepares a biological opinion. See generally Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1239 (9th Cir.2001). In this case, the action agencies are the U.S. Army Corps of Engineers and the Bureau of Reclamation, while the consulting agency is NMFS.

The consulting agency evaluates the effects of the proposed action on the survival of species and any potential destruction or adverse modification of critical habitat in a biological opinion, 16 U.S.C. § 1536(b), based on "the best scientific and commercial data available," id. § 1536(a)(2). The biological opinion includes a summary of the information upon which the opinion is based, a discussion of the effects of the action on listed species or critical habitat, and the consulting agency's opinion on "whether the action is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat. ..." 50 C.F.R. § 402.14(h)(3). In making its jeopardy determination, the consulting agency evaluates "the current status of the listed species or critical habitat," the "effects of the action," and "cumulative effects." Id. § 402.14(g)(2)-(3). "Effects of the action" include both direct and indirect effects of an action "that will be added to the environmental baseline." Id. § 402.02. The environmental baseline includes "the past and present impacts of all Federal, State or private actions and other human activities in the action area" and "the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation." Id. If the biological opinion concludes that jeopardy is not likely and that there will not be adverse modification of critical habitat, or that there is a "reasonable and prudent alternative[]" to the agency action that avoids jeopardy and adverse modification and that the incidental taking of endangered or threatened species will not violate section 7(a)(2), the consulting agency can issue an "Incidental Take Statement" which, if followed, exempts the action agency from the prohibition on takings found in Section 9 of the ESA. 16 U.S.C. § 1536(b)(4); ALCOA v. BPA, 175 F.3d 1156, 1159 (9th Cir.1999).

* * * * * *

The issuance of a biological opinion is considered a final agency action, and therefore subject to judicial review. Bennett v. Spear, 520 U.S. 154, 178, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997); Ariz. Cattle Growers' Ass'n, 273 F.3d at 1235.

Id. at 1230.

III. FACTUAL BACKGROUND

For over thirty years the state and federal agencies charged with management of the CVP and SWP have operated the projects in an increasingly coordinated manner pursuant to a Coordinated Operating Agreement ("COA"). The COA, which dates to 1986, has evolved over time to reflect, among other things, changing facilities, delivery requirements, and regulatory restrictions. The most recent document surveying how the COA is implemented in light of these evolving circumstances is the 2004 Operating Criteria and Plan ("2004 OCAP" or "OCAP") issued June 30, 2004. (AR 489-728.)3

A. Overview of the 2004 OCAP.

The OCAP begins with a "Purpose of Document" section which states:

This document has been prepared to serve as a baseline description of the facilities and operating environment of the Central Valley Project (CVP) and State Water Project (SWP). The Central Valley Project — Operations and Criteria Plan (CVP-OCAP) identifies the many factors influencing the physical and institutional conditions and decisionmaking process under which the project currently operates. Regulatory and legal instruments are explained, alternative operating models and strategies described.

The immediate objective is to provide operations information for the Endangered Species Act, Section 7, consultation. The long range objective is to integrate CVP-OCAP into the proposed Central Valley document. It is envisioned that CVP-OCAP will be used as a reference by technical specialists and policymakers in and outside the Bureau of Reclamation (Reclamation) in understanding...

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