San Luis & Delta–mendota Water Auth. v. Salazar, No. 1:09–cv–00407 OWW DLB

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
• Writing for the Court: %$*860 MEMORANDUM DECISION RE CROSS MOTIONS FOR SUMMARY JUDGMENT (DOCS. 548, 549, 550, 658, & 661)
• Citation: 760 F.Supp.2d 855
• Decision Date: 14 December 2010
• Docket Number: No. 1:09–cv–00422–OWW–GSA,No. 1:09–cv–00407 OWW DLB,No. 1:09–CV–01201–OWW–DLB.,No. 1:09–cv–00631–OWW–DLB,No. 1:09–cv–00892–OWW–DLB,No. 1:09–cv–00480–OWW–GSA
• Parties: SAN LUIS & DELTA–MENDOTA WATER AUTHORITY, et al.v.SALAZAR, et al.State Water Contractorsv.Salazar, et al.Coalition for a Sustainable Delta, et al.v.United States Fish and Wildlife Service, et al.Metropolitan Water Districtv.United States Fish and Wildlife Service, et al.Stewart & Jasper Orchards et al.v.United States Fish and Wildlife Service.Family Farm Alliancev.Salazar, et al.

760 F.Supp.2d 855

SAN LUIS & DELTA–MENDOTA WATER AUTHORITY, et al.
v.
SALAZAR, et al.State Water Contractors
v.
Salazar, et al.Coalition for a Sustainable Delta, et al.
v.
United States Fish and Wildlife Service, et al.Metropolitan Water District
v.
United States Fish and Wildlife Service, et al.Stewart & Jasper Orchards et al.
v.
United States Fish and Wildlife Service.Family Farm Alliance
v.
Salazar, et al.

Nos. 1:09–cv–00407 OWW DLB, 1:09–cv–00480–OWW–GSA, 1:09–cv–00422–OWW–GSA, 1:09–cv–00631–OWW–DLB, 1:09–cv–00892–OWW–DLB, 1:09–CV–01201–OWW–DLB.

United States District Court, E.D. California.

Dec. 14, 2010.

[760 F.Supp.2d 860]

MEMORANDUM DECISION RE CROSS MOTIONS FOR SUMMARY JUDGMENT (DOCS. 548, 549, 550, 658, & 661)

OLIVER W. WANGER, District Judge.

[760 F.Supp.2d 861]

TABLE OF CONTENTS

I.

INTRODUCTION

863

II.

PROCEDURAL HISTORY

863

III.

STATUS OF THE SPECIES

866

IV.

SUMMARY OF MOTION

867

A.

Plaintiffs' Motion

867

B.

DWR's Motion

867

V.

STANDARD OF DECISION

868

VI.

BASIC LEGAL FRAMEWORK

868

A.

Review under the APA

868

(1)

Record Review

868

(2)

Deference to Agency Expertise

869

(3)

General Obligations Under the ESA

870

(4)

Best Available Science

870

(5)

Best Available Science Standards and the Application of Analytical/Statistical Methodologies

873

VII.

ANALYSIS

874

A.

Challenges to the Effects Analysis & Related Challenges to the RPA Actions

874

(1)

Legal Requirements for a Project Effects Analysis

874

(2)

Best Available Science Challenges to the Effects Analysis and Related Challenges to the Justification Provided for the RPA Actions

875

a.

The BiOp's General Conclusion that Entrainment by Project Operations Adversely Affects Smelt Survival & Recovery is Supported by the Record

876

b.

Population Level Analysis/Life–Cycle Modeling

881

c.

FWS' Use of Raw Salvage Numbers

885

(1)

Federal Defendants' Argument that the Flow Prescriptions in Actions 1 and 2 are Otherwise Justified

890

(2)

Use of Raw Salvage Analyses in Justification for Action 3

895

d.

FWS's Comparison of CALSIM II Data to DAYFLOW Data

896

(1)

Was FWS's Decision to Compare Calsim II to Dayflow Model Runs a Violation of the Best Available Science Requirement?

903

(2)

Does the Use of Dayflow to Represent the Baseline in the Project Effects Analysis Improperly Attribute Past Effects to the Projects?

909

(3)

Use of Comparisons Between CALSIM and DAYFLOW Model Outputs to Justify Imposition of Component 3 (Action 4), the Fall X2 Action

910

(3)

Other Challenges to the Fall X2 Action

913

a.

Plaintiffs' Argument that Action 4 is an “Untested Hypothesis.”

913

b.

FWS' Reliance on the Feyrer Papers

913

c.

Do the Studies Cited in the BiOp Support FWS's Conclusion that Fall X2 Determines the Extent of Suitable Smelt Habitat?

915

(1)

Feyrer (2007)

915

(2)

The Feyrer (2008) Paper

917

(3)

The Bennett (2005) Article

918

d.

Does the Best Available Science Support the Assumption that X2 Is a Surrogate for Smelt Habitat?

918

a.

Are Delta Smelt Habitat Limited?

919

b.

FWS' Use of a Linear Model Instead of a Multiplicative Stock–Recruit Model

920

c.

DWR's Challenge to the BiOp's Choice of X2 Location

922

(4)

Challenges to Turbidity Trigger

923

(5)

Challenges to the Incidental Take Limit/Selective Use of Data

924

a.

FWS's Exclusion of Certain Data Points When Analyzing Entrainment

924

b.

FWS's Use of Data to Examine the Relationship Between OMR Flows and Salvage and Exclusion of that Data from the Incidental Take Limit Analysis

925

c.

DWR's Additional Challenges the ITS

928

(6)

Challenges to the BiOp's Analysis of the Hydrodynamic Effects of the Projects

929

a.

Project Operations as a Driver of Hydrodynamic Conditions in the Delta

930

b.

Treatment of Other Stressors

932

(1)

Predation Analysis

934

(2)

Aquatic Macrophytes

934

(3)

Microcystis

936

(7)

Indirect Effects Analysis

936

a.

Effect of Project Operations on Delta Smelt Food Supplies

937

b.

Pollution and Contaminants

940

(8)

Critical Habitat as Independent Basis for RPA

943

a.

Identification of a Threshold For Adverse Modification/ Explanation of How Any Alleged Alteration To Critical Habitat Would Exceed that Threshold

944

b.

Reliance On Assumptions Of Indirect Effects Without Providing Evidence That These Indirect Effects Are Reasonably Certain To Occur

946

c.

Reliance on Analysis Of Entrainment and X2 in Support of the Adverse Modification Determination

947

(9)

Discretionary v. Nondiscretionary Actions

947

B.

Application of the RPA Regulations

948

(1)

FWS Did Not Explicitly Analyze Any of the Four Factors in the BiOp

948

(2)

Compliance with § 402.02

949

a.

Jeopardy Factor (Fourth Factor)

949

b.

Non–Jeopardy Factors (Factors One Through Three)

949

c.

There is no Procedural Requirement that FWS Accept, Consider, and/or Address Comments Regarding the BiOp or its RPA

957

C.

Stewart & Jasper Orchards' Argument Re: Reasonable and Prudent Measures

957

D.

Stewart & Jasper, et al.'s, Argument that FWS Illegally Arrogated Authority to Itself Over Bureau of Reclamation and California Department of Water Resources Operations

958

E.

Information Quality Act Claim

959

(1)

Legal Framework of the IQA

959

(2)

Right to Judicial Review Under the APA

960

a.

APA § 701(a)(2)'s Exception for Agency Action “Committed to Agency Discretion by Law” Bars Judicial Review in this Case

961

(3)

To the Extent FFA Bases Any of its Claims against Reclamation on the ESA, Such Claims are Subject to the ESA's Pre–Filing Requirements

964

F.

Renewed Claim That FWS Violated NEPA

964

G.

Reclamation's Liability under the ESA

966

[760 F.Supp.2d 862]

VIII.

CONCLUSION

967

[760 F.Supp.2d 863]

I. INTRODUCTION

These consolidated cases arise out of the continuing war over protection of the delta smelt ( Hypomesus transpacificus ), an ESA-threatened species, and associated impacts to the water supply for more than half of the State of California. Plaintiffs, San Luis & Delta Mendota Water Authority (“SLDMWD”) and Westlands Water District, Metropolitan Water District of Southern California, State Water Contractors (“SWC”), Coalition for a Sustainable Delta and Kern County Water Agency, Stewart & Jasper Orchards, Arroyo Farms, LLC, and King Pistacho Grove, and Family Farm Alliance, move for summary judgment on their numerous remaining claims against the United States Fish and Wildlife Service's (“FWS”) December 15, 2008 Biological Opinion addressing the impacts of the coordinated operations of the federal Central Valley Project (“CVP”) and State Water Project (“SWP”) on the threatened delta smelt ( Hypomesus transpacificus ). Doc. 550. Plaintiff–in–Intervention, the California Department of Water Resources (“DWR”) filed a separate motion for summary judgment on narrower grounds. Docs. 548 & 549. Federal Defendants, the United States Department of the Interior, FWS, and the United States Bureau of Reclamation (“Reclamation”), and Defendant Intervenors, Natural Resources Defense Council and The Bay Institute, oppose and cross move for summary judgment on all remaining claims. Docs. 658 & 661. Plaintiffs and DWR replied. Docs. 697 & 695. The motion came on for hearing on July 8 & 9, 2010. After oral argument, the parties submitted supplemental briefing on a limited set of issues. Docs. 746–49.

II. PROCEDURAL HISTORY

FWS's 2005 biological opinion (“2005 Smelt BiOp”) found that the proposed coordinated operations of the SWP and CVP will have no adverse effect on the continued existence and recovery of the Delta Smelt and its critical habitat. The 2005 BiOp was remanded to FWS as arbitrary and capricious. Order, NRDC v. Kempthorne, 506 F.Supp.2d 322 (E.D.Cal.2007), Doc. 323. Following an extensive evidentiary hearing, the Court issued an interim remedial order and Findings of Fact and Conclusions of Law (“Findings”), which covered, among other things, the effects on delta smelt of negative flows in Old and Middle Rivers (“OMR”), two distributary channels of the San Joaquin River. See Interim Remedial Order Following Summary Judgment and Evidentiary Hearing (“Int. Rem. Order”), NRDC v. Kempthorne, Doc. 560, 2007 WL 4462391 (Dec. 14, 2007); Findings re: Delta Smelt ESA Remand and Reconsultation (“Int. Rem. Findings”), NRDC v. Kempthorne, Doc. 561, 2007 WL 4462395 (Dec. 14, 2007). ¹

Reclamation and DWR were ordered, among other things, to implement a winter “pulse flow” in OMR of no more negative than -2,000 cubic feet per second (“cfs”), and to “operate the CVP and SWP to achieve a daily average net upstream (reverse) flow in the OMR not to exceed 5,000 cfs on a seven-day running average” during a defined period in the spring.

[760 F.Supp.2d 864]

Int. Rem. Order at 5–7; see also Int. Rem. Findings at 15–20.

FWS issued a new delta smelt biological opinion on December 15, 2008 (“2008 Smelt BiOp” or “BiOp”). See Administrative Record (“AR”) at 00001–00411.² This BiOp concluded that proposed CVP and SWP operations are “likely to jeopardize the continued existence of” the delta smelt and “adversely modify” its critical habitat. BiOp at 276–79. The BiOp includes a required Reasonable and Prudent Alternative (“RPA”) designed to allow the projects' continued operations without causing jeopardy to the species or adverse modification to its critical habitat. Id. at 279–85. The RPA includes operational components designed to reduce entrainment of smelt during critical times of the year by controlling (limiting) water exports from the Delta by the Projects. Id. at 279–85.

Component 1, to protect of the adult delta smelt life stage, consists of two Actions related to OMR flows.

• Action 1, to protect upmigrating delta smelt, is triggered during low and high entrainment risk periods based on physical and biological monitoring. Action 1 requires OMR flows to be no more negative than -2,000 cfs on a 14–day average and no more negative than -2,500 cfs for a 5–day running average. Id. at 280–82, 329–51.

• Action 2, to protect adult delta smelt that have migrated upstream and are present in the Delta prior to spawning. Action 2 is triggered immediately after Action 1 concludes or if...