San Luis & Delta–mendota Water Auth. v. Salazar
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,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. |
Citation | 760 F.Supp.2d 855 |
Court | U.S. District Court — Eastern District of California |
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. |
OPINION TEXT STARTS HERE
TABLE OF CONTENTS
STATUS OF THE SPECIES
SUMMARY OF MOTION
Plaintiffs' Motion
DWR's Motion
STANDARD OF DECISION
BASIC LEGAL FRAMEWORK
A.
Review under the APA
(1)
Record Review
(2)
Deference to Agency Expertise
(3)
General Obligations Under the ESA
(4)
Best Available Science
(5)
Best Available Science Standards and the Application of Analytical/Statistical Methodologies
Challenges to the Effects Analysis & Related Challenges to the RPA Actions
Legal Requirements for a Project Effects Analysis
Best Available Science Challenges to the Effects Analysis and Related Challenges to the Justification Provided for the RPA Actions
The BiOp's General Conclusion that Entrainment by Project Operations Adversely Affects Smelt Survival & Recovery is Supported by the Record
Population Level Analysis/Life–Cycle Modeling
881
FWS' Use of Raw Salvage Numbers
885
Federal Defendants' Argument that the Flow Prescriptions in Actions 1 and 2 are Otherwise Justified
Use of Raw Salvage Analyses in Justification for Action 3
FWS's Comparison of CALSIM II Data to DAYFLOW Data
896
Use of Comparisons Between CALSIM and DAYFLOW Model Outputs to Justify Imposition of Component 3 (Action 4), the Fall X2 Action
Other Challenges to the Fall X2 Action
913
Plaintiffs' Argument that Action 4 is an “Untested Hypothesis.”
913
FWS' Reliance on the Feyrer Papers
913
Feyrer (2007)
915
The Feyrer (2008) Paper
917
The Bennett (2005) Article
918
919
FWS' Use of a Linear Model Instead of a Multiplicative Stock–Recruit Model
DWR's Challenge to the BiOp's Choice of X2 Location
922
Challenges to Turbidity Trigger
923
Challenges to the Incidental Take Limit/Selective Use of Data
924
FWS's Exclusion of Certain Data Points When Analyzing Entrainment
924
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
DWR's Additional Challenges the ITS
928
(6)
Challenges to the BiOp's Analysis of the Hydrodynamic Effects of the Projects
Project Operations as a Driver of Hydrodynamic Conditions in the Delta
Treatment of Other Stressors
932
Predation Analysis
934
Aquatic Macrophytes
934
Microcystis
936
(7)
Indirect Effects Analysis
936
Effect of Project Operations on Delta Smelt Food Supplies
937
Pollution and Contaminants
940
(8)
Critical Habitat as Independent Basis for RPA
943
Identification of a Threshold For Adverse Modification/ Explanation of How Any Alleged Alteration To Critical Habitat Would Exceed that Threshold
Reliance On Assumptions Of Indirect Effects Without Providing Evidence That These Indirect Effects Are Reasonably Certain To Occur
Reliance on Analysis Of Entrainment and X2 in Support of the Adverse Modification Determination
(9)
Discretionary v. Nondiscretionary Actions
947
Application of the RPA Regulations
948
FWS Did Not Explicitly Analyze Any of the Four Factors in the BiOp
Compliance with § 402.02
949
Jeopardy Factor (Fourth Factor)
949
Non–Jeopardy Factors (Factors One Through Three)
949
There is no Procedural Requirement that FWS Accept, Consider, and/or Address Comments Regarding the BiOp or its RPA
Stewart & Jasper Orchards' Argument Re: Reasonable and Prudent Measures
Stewart & Jasper, et al.'s, Argument that FWS Illegally Arrogated Authority to Itself Over Bureau of Reclamation and California Department of Water Resources Operations
Information Quality Act Claim
959
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
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
Reclamation's Liability under the ESA
966
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 () , NRDC v. Kempthorne, Doc. 560, 2007 WL 4462391 (Dec. 14, 2007); Findings re: Delta Smelt ESA Remand and Reconsultation () , 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. 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 recommended by the Smelt Working Group (“SWG”). Flows under Action 2 can be set within a range from –5,000 to -1,250 cfs, depending on a complex set of biological and...
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