San Luis & Delta-Mendota Water Authority et al v. Locke et al, No. 1:2009cv01053 - Document 266 (E.D. Cal. 2010)
Court Description: MEMORANDUM DECISION RE Cross Motions for Summary Judgment Re NEPA Issues 82 83 , signed by Judge Oliver W. Wanger on 03/05/2010. (Coffman, Lisa)
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1 2 UNITED S TATES DISTRICT COURT 3 FOR THE EASTERN DIST RICT OF CALIFORNIA 4 5 CONSOLID ATED S ALMONID CAS ES 1:09-CV-1053 OWW DLB 6 MEMORAND UM DEC ISION RE CROSS-MOTIONS FOR SUMMARY JUDGMENT ON NE PA ISSUES (Docs. 8 2 & 83 ). 7 8 9 10 11 12 13 14 15 I. INTRODUC TION These co nsolid ated cases all challeng e the June 4, 2009 issuance of a biological opinion by the National Marine Fisherie s Serv ice ( NMFS ), finding that the coor dinated 16 operatio ns of the federal Central Valley Project ( CVP ) and 17 State Wa ter Pr oject ( SWP ) are likely to jeopard ize the 18 continue d exis tence and a dversely affect the crit ical habitat 19 of certa in sal monid and o ther species ( 2009 Salm onid BiOp ), 20 as well as the implementa tion of the terms of tha t BiOp by the 21 22 23 24 25 26 27 28 United S tates Bureau of R eclamation ( Reclamation ). 1 Because the 2009 Salmo nid Bi Op found that planned coordin ated Project 1 Th e sp ec ie s ad dr es se d b y th is b io l ogi ca l op in io n ar e: ( 1) end an ge re d Sa cr am en to Ri ve r wi nt er - run C hi no ok s al mo n (O nco rh yn ch us tsh aw yt sc ha ) ( wi nt er -ru n ); ( 2) t h rea te ne d Ce nt ra l Va ll ey sp ri ng -r un Chi no ok s al mo n (O . ts haw yt sc ha ) ( s pri ng -r un ) ; (3 ) th re ate ne d Ce nt ra l Val le y st ee lh ea d ( CV ) (O . my ki ss ) ; ( 4) t hr ea te ne d Ce nt ral C al if or ni a Coa st ( C CC ) s te el he ad (O . my ki ss ) ; ( 5) t hr ea te ne d So ut her n Di st in ct Pop ul at io n Se gm en t ( DPS ) o f No rt h Am er ic an g re en s tu rg eon ( Ac ip en se r med ir os tr is ) ( So ut he rn DP S of g re e n s tu rg eo n ); a nd ( 6) en da ng er ed Sou th er n Re si de nt k il ler w ha le s (O r cin us o rc a) ( S ou th er n R es id en ts ) (co ll ec ti ve ly , th e L ist ed S pe ci es ). 1 1 operatio ns wou ld jeopardi ze the continued existen ce of and/or 2 adversel y modi fy the crit ical habitat of several of the 3 species, 2 2009 Salmon id BiOp at 1-2, 3 NMFS proposed a 4 5 6 7 Reasonab le and Prudent Alternative ( RPA ) that i mpose s a number o f oper ating restr ictions and other measures on the Projects . The RPA included numerous elements for each of the 8 various projec t divisions and associated stressor s, which NMFS 9 conclude d mus t be implem ented in its entirety to avoi d 10 jeopardy and a dverse modi fication. 11 descript ion of the RPA co mprises approximately 90 pages of the 12 13 14 15 2009 Sal monid BiOp. Id. at 578. The See id. at 581-671. On June 4, 200 9, Reclamat ion, which manages the C VP, informed NMFS that it pr ovisionally accept s the [RPA] while 16 we caref ully e valuate the [2009 Salmonid BiOp] an d the [RPA] 17 AR USBR1 ; see also 2 009 Salmonid BiOp at 2 (stati ng that 18 Reclamat ion in formed NMFS that, while Reclamation may have 19 reservat ions w ith portion s of the [BiOp] ... it i s a p acka ge 20 that Rec lamati on can acce pt. ). 21 22 23 24 Reclamation info rmed NMFS that it would immediately begin to implement the near- term actions of the RPA, but n oted that some long-term acti ons, such as constr uction of t he Red Bluff Pumping Pla nt, 25 26 27 28 2 Je op ar dy w as f ou nd a s t o al l of t h e c ov er ed s pe ci es ; ad ver se hab it at m od if ic at io n was f ou nd a s t o t he d es ig na te d cr it ica l ha bi ta t o f win te r- ru n, s pr in g- ru n, st ee lh ea d, and g re en s tu rg eo n. BiO p at 1 -2 . 3 Al th ou gh t he B iO p is pa rt o f th e a dmi ni st ra ti ve r ec or d ( A R ), f or eas e of r ef er en ce , it s i nt er na l pa g e r ef er en ce s, r at he r tha n AR ref er en ce s, a re u se d. 2 1 replacem ent of the W hiske ytown temperature curtai n, and fi sh 2 passage improv ement actio ns on Battle Creek, requ ired 3 addition al pla nning. 4 5 6 See AR USBR1. Reclam ation also indicate d the potential n eed to reinitiate consul tation on several elemen ts of the R PA. AR USBR2. Plaintif fs in all of the consolidated cases 4 move for 7 8 summary judgme nt, arguing that issuance and/or im plementation 9 of the B iOp/RP A is major federal action that wi ll inflict 10 harm on the hu man environ ment, and that NMFS and/ or 11 Reclamat ion sh ould have, but did not conduct an environmen tal 12 13 14 15 assessme nt ( E A ) or prep are an environmental imp act statement ( EIS ) under the Nationa l Environmental Policy A ct ( NEPA ). Doc. 83. Fede ral De fendants and Defe ndant-Intervenors opp ose. 16 Docs. 95 & 100 . 17 declarat ion. 18 assessme nt or documentati on was prepared by eithe r NMFS or 19 Reclamat ion in connection with the issuance, prov isional 20 adoption , and/ or implemen tation of the 2009 Salmonid B iOp and 21 22 23 24 Plaintiffs replied and submitted a su ppor ting Docs. 115. It is undis puted that no NEP A RPA. Defendan t-Inte rvenor s cross-move for summary judgment on this cla im, ar guing that FWS was not required to prepare an 25 26 27 28 4 Sa n Lu is & D el ta M en dot a Wa te r Au t hor it y ( Au th or it y ) and Wes tl an ds W at er D is tr ict ( W es tl an d s ) ; St oc kt on E as t Wa ter D is tr ic t ( S to ck to n ); S ta te W ate r Co nt ra ct o rs ( SW C ); K er n Co un ty Wa te r Ag en c y ( K CW A ) an d Co al it io n f or a S us ta i nab le D el ta ( C oa li ti on ); O ak da le Irr ig at io n Di st ri ct ( Oa kd al e ), e t al .; a nd M et ro po li ta n W at er D is tr i ct of So ut he rn C al if or ni a ( M WD ) ( co l lec ti ve ly , P la in ti ff s ) . 3 1 EIS in c onnect ion with issuance of the BiOp . 2 Plaintif fs opp ose. 3 reply. 4 5 6 7 Doc. 106. Doc. 82- 2. Defendant-Intervenors f iled a Doc. 1 16. The Paci fic Le gal Foundat ion also seeks leave to file an amicus c uriae brief on be half of the City of Coal inga, Stewart & Jasper Orcha rds, Arroyo Farms, LLC, King Pistac hio Grove, 8 and Pere z Farm s. 9 response to th at motion a nd to the brief itself. 10 11 12 13 14 15 Doc. 84 . Defendant Intervenors filed a Doc. 94. The cros s-moti ons ca me on for hearing on Fe bruary 9, 2010. D oc. 21 4. The par ties were granted leave to file suppleme ntal b riefs on ce rtain issues. Federal D efendant submitte d a su pplemental brief on February 12, 20 19. 222. Doc. De fendan t Interveno rs and Plaintiffs respon ded on 16 February 16, 2 010. Docs. 224 & 225. 17 thereaft er sub mitted for decision. 18 19 20 21 22 23 24 The matter was II. ANALYSIS A. Threshol d Issu es. 1. Requests for Judicia l Notice. a. Plaintif fs Request for Judicial Noti ce. Plaintif fs req uest that judicial notice be taken of: ¢ The June 4, 20 09 Endanger ed Species Act Section 7 25 Consulta tion B iological O pinion and Conference Op inion 26 on the L ong-Te rm Operations of the Central Valley 27 Project and St ates Water Project (Exh ibit A to Doc. 83- 28 4 1 2 4). ¢ 3 Revised Water Right Decis ion 1641, dated March 15 , 2000 4 (Exhibit B to Doc. 83-4). 5 6 ¢ 4309X (E xhibit s C and D t o Doc. 83-4). 8 ¢ 10 11 12 13 14 15 16 Two cour t orde rs filed in 1982 in Uni ted States v. State of Calif ornia, et al., Case No. 81-4189X, 81- 7 9 Excerpts from State Water Resources Control board A 1982 O perati ng Plan for New Melones Reservoir, issued by the B ureau (Exhibit E to Doc. 83-4). Federal Defend ants reques t judicial notice of: ¢ The Octo ber 19 99 Central Valley Project Improveme nt Act Final Pr ogramm atic E nviro nmental Impact Statement (Exhibit A to Doc. 101). These do cument s are all j udicially noticeable pub lic 17 records under Federal Rul e of Evidence 201(b), wh ich 18 authoriz es jud icial notic e of a fact ... not sub ject to 19 reasonab le dis pute in that it is either (1) generally know n 20 within t he ter ritorial ju risdiction of the trial court or (2) 21 22 23 24 capable of acc urate and r eady determination by re sort to sources whose accuracy ca nnot reasonably be quest ioned. See United S tates v. 14.02 Ac res, 547 F.3d 943, 955 (9th Cir. 25 2008) (j udicia l notice is proper for records and reports of 26 administ rative agencies); Uni ted Stat es v. Howard, 381 F.3d 27 873, 876 n. 1 (9th Cir. 2 004) (taking judicial no tice of court 28 5 1 records in ano ther case). 2 admissib le onl y for the exist ence of their content, no t fo r 3 the trut h of d isputed mat ters asserted in the documents. However, these records are 4 5 B. The burd en of proof set f orth in the Smelt NEPA d ecision 6 7 is equal ly app licable her e: 8 In the p reliminary i njunction context, a p laintiff seeking a preliminar y injunction must establish t hat he is li kely to succ eed on the merits, that he is likely t o suffer irr eparable harm in the absence of prelimin ary relief, that the balance of equities tips in his f avor, and th at an injunction is in the public interest . Am . Trucking Assns., Inc. v. City of Los Angeles, 559 F.3d 10 46, 1042 (9th Cir . 2009) (citing Winter v . NRDC, --- U.S. ---, 129 S. Ct. 365 (2008).) . Within th e likelihood of success on th e merits p rong, a cour t must evaluate each claim accordin g to applica ble legal standards. Here, t hat standard , in part, i nvolves an inquiry into wheth er there a re substanti al questions about whether a project may cause si gnificant degradation of the human en vironment. Nativ e Ecosystems Council v. U.S. Forest S erv., 428 F. 3d 12 33, 1239 (9th Cir. 2005). For a pr eliminary in junction, plaintiffs only had to establis h that they are likely to meet this bur den under. On summary j udgment, plaintiff must actually prove su ccess by a p reponderance of t he evi dence. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Burden o f Proo f. Smelt NE PA Dec ision at 8-9. C. Applicab le Leg al Standard s. The gene ral le gal standar ds applied in the Smelt NEPA Decision also apply here: Because NEPA contain s no separate provision for judicial review, com pliance with NEPA is reviewed under th e Administra tive Procedure Act ( APA ), 5 U.S.C. § 706(2)(A); NW Re source Info. Ctr., Inc. v. NMFS, 56 F.3d 1060, 1066 (9th Cir. 1995), provided (1) ther e is final a gency action and (2) Plaintif fs 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 can show that they h ave suffered a legal wrong or will be adversely af fected within the meaning of the statute, North coast Envt l Ctr. v. Glickman, 136 F.3d 660, 668 (9th Cir. 1 998). It is undisputed that the challeng ed agency ac tion, the issuance of the 200 8 smelt Bi Op and its R PA, is final agency ac tion. See Benn et v. Spear, 520 U.S. 154, 161, 178 (1997) (issuanc e of biologi cal opinion is final agency action ) . It is als o undisputed that Plaintiffs have been adv ersely affec ted by the issuance of the 20 08 smelt Bi Op and imple mentation of its RPA controlling the Proj ects water flows. NEPA req uires all fe deral agencies to prepare an EIS to evalu ate the pote ntial environmental consequen ces of any p roposed maj or Federal action[] significa ntly affectin g the qualit y of the human environment. 42 U.S.C. § 4332(C). T he preparation of an EIS serv es a number o f purposes: It ensur es that the agency, in reaching its decision , will have available, and will carefully consider , detailed i nformation concerning signific ant environm ental impacts; it also guarante es that the relevant informat ion will be made ava ilable to th e larger audience that may also pla y a role in both the decisionmaking process and the impl ementation of that decision. Simply b y focusing t he agency s attention on the environm ental consequence s of a proposed project, NEPA ens ures that im portant effects will not be overlook ed or undere stimated only to be discover ed after res ources have been committed or the die otherwise ca st. Moreover, the strong precator y language o f § 101 of the Act and the requirem ent that age ncies prepare detailed impact statemen ts inevitabl y bring pressure to bear on agencies to re spond to th e needs of environmental quality. 115 Cong. Rec. 40425 (1969) (remarks of Sen. Mus kie). Publicat ion of an EI S, both in draft and final form, al so serves a larger informational role. It gives th e public the assurance that the agency has inde ed considere d environmental concerns in its deci sionmaking p rocess, and, perhaps more signific antly, provi des a springboard for public 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 comment. Robertso n v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989) (int ernal citations and quotation s omitted) . NEPA doe s not contain substantive requirem ents that di ctate a particular result; instead, NEPA is aim ed at ensuring agencies make informed decis ions and contemplate the envi ronmental impacts of their act ions. Ocean Mammal Inst. v. Gates, 5 46 F. Supp. 2d 960, 971 (D. Hi. 2008) (quoting Idaho Sport ing C ong. v. Thomas, 137 F.3d 1146, 11 49 (9th Cir. 1998)). NEPA emphasizes th e importan ce of cohere nt an d comprehensive up-front environm ental analys is to ensure informed decisio n making t o the end th at the agency will not act on incomple te informati on, only to regret its decisi on after it is too late to correct. Ctr. for Biologic al Diversity v. U .S. Forest Service, 349 F.3d 1157, 11 66 (9th Cir. 2003) (internal citation and quotatio ns omitted). Federal regulations implementing NEPA define majo r federal action: Major Fe deral action includes actions with effects that may be major and which are potentia lly subject to Federal control and responsi bility. Majo r reinforces but does not have a m eaning indep endent of significantly ([40 C.F.R.] § 1508.27). Actions include the circumst ance where t he responsible officials fail to act a nd that fail ure to act is rev iewable by courts o r administra tive tribunals under the Administ rative Proce dure Act or other applicable law as a gency action . (a) Acti ons include new and continuing activiti es, includin g projects and programs entirely or partly f inanced, assisted, conducted, regulate d, or approv ed by federal agencies; new or revis ed agency ru les, regulations, plans, policies , or procedu res; and legislative proposal s (§§ 1506.8 , 1508.17). Actions do not include funding assi stance solely in the form of general revenu e shar ing f unds, distributed under the Stat e and Local Fiscal Assistance Act of 1972, 31 U.S.C. 1221 et seq., with no Federal agency c ontrol over the subsequent use of such 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 funds. A ctions do no t include bringing judicial or admin istrative ci vil or criminal enforcement actions. (b) Fede ral actions tend to fall within one of the foll owing catego ries: (1) Adop tion of offi cial policy, such as rules, r egulations, and interpretations adopted pursuant to the Administrative Procedur e Act, 5 U.S .C. 551 et seq.; treaties and interna tional conventions or agreemen ts; formal d ocuments establishing an agency s policies wh ich will result in or substant ially alter agency programs. (2) Adop tion of form al plans, such as official documents p repared or approved by federal agencies which guide or prescribe alternat ive uses of Federal resources, upon which fu ture agency actions will be based. (3) Adop tion of prog rams, such as a group of concerte d actions to implement a specific policy o r plan; syst ematic and connected agency d ecisions all ocating agency re sources to imple ment a speci fic statutory program or executiv e directive. (4) Appr oval of spec ific projects, such as construc tion or mana gement activities located in a defined geographic area. Projects include act ions appr oved by permit or other regulatory decision as well as federal and federall y assisted activities. 40 C.F.R . § 1508.18. When an agency takes major federal, the agency mu st prepare an EIS wher e there are substantial quest ions about wh ether a proj ect may c ause significant degradat ion of the h uman environment. Nat ive Ecosyste ms, 42 8 F.3d at 1239. An agency ma y choose to prepa re an enviro nmental assessment ( EA ) to determin e whether an EIS is needed. 40 C.F.R. §§ 1501.4, 1508.9(b). The EA must identify al l reasonab ly foreseeab le impacts, analyze their signific ance, and ad dress alternatives. 40 C.F.R . §§ 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1508.8, 1508.9, 1508 .27. If, based on the EA, th e agency c oncludes tha t the proposed actions will n ot signific antly affect the environment, it may issue a Finding of No Signif icant Impact ( FONSI ) and fo rego completi on of an EIS . See Bob Marsha ll All iance v. Hodel, 8 52 F.2d 1223 , 1225 (9th Cir. 1988); 40 C. F.R. § 1501.4 (e). Whether an action ma y significantly affect the environm ent require s consideration o f cont ext and intensit y. C enter for Biological Diversity v. Nat l Highway Traffic Safe ty Admin., 538 F.3d 117 2, 1185 (9th Cir . 2008)(citi ng 40 C.F.R. § 1508.27). Context delimits th e scope of the agency s action, includin g the intere sts affected. Id. (qu oting Nat l. P arks & Conse rvation Ass n v. Babbit, 241 F.3d 722, 731 (9th Cir. 2 001)). Intensit y refers to the severity of impact, which in cludes both beneficial and adverse impacts, [t]he degr ee to which the proposed action a ffects public health or safety, [t]he degree t o which the effects on the quality of the human en vironment ar e likely to be highly controve rsial, [t] he degree to which the possible effects on the human environment are highly u ncertain or involve unique or unknown risks, and [w]heth er the action is related to other ac tions with i ndividually insignificant but cumulati vely signifi cant impacts. Id. at 1 185-86 (citing 40 C.F.R. § 1508.27(b)(2), (4), (5) , (7)). The part ies debate a t length the degree of deference owed to an agency s decision under NEPA. However , in this cas e, neither a gency made any NEPA-rel ated decision to which de ference is owed. The relevan t standard is reasona bleness, as articulated in High Sierra H ikers Ass n v. Blackwell: Typicall y, an agency s decision not to prepare an EIS is r eviewed unde r the arbitrary and capricio us standard; however, where an agency has decided that a proje ct does not require an EIS without first conduc ting an EA, we review under the reas onableness s tandard. 10 1 390 F.3d 630, 640 (9 th Cir. 2004). Furthe r, when an agency h as taken act ion without observance of the procedur e required b y law, that action will be se t aside. Id. ( citations omitted). 2 3 4 Smelt NE PA Dec ision at 9-14. 5 D. 6 7 Major Fe deral Action. 40 C.F.R . § 15 08.18 provides that major 5 [f]ederal actions tend t o fall with in one of the following categories : 8 (1) Adop tion of offi cial policy, such as rules, regulati ons, and int erpretations adopted pursuant to the Admi nistrative P rocedure Act, 5 U.S.C. 551 et seq.; tr eaties and i nternational conv entions or agreemen ts; formal d ocuments establishing an agen cy s policies which will result in or substantially al ter agency p rograms. 9 10 11 12 (2) Adop tion of form al plans, such as official document s prepared o r approved by federal agencies which gu ide or presc ribe alternative uses of Fede ral resource s, upon whic h future agency actions will be based. 13 14 15 (3) Adop tion of prog rams, such concerte d actions to implement plan; sy stematic and connected allocati ng agency re sources to statutor y program or executive 16 17 18 (4) Appr oval o f specific projects, such as construc tion or mana gement activities located in a defined geographic a rea. Projects include actions approved by permit o r other regulator y decision as well as federal and federally assisted activities . 19 20 21 22 23 24 25 26 27 28 as a group of a specific policy or agency decisions implement a specif ic directive. 40 C.F.R . § 15 08.18. Pla intiffs principally rely on § 1508.18( b)(4) as a basis for imposing NEPA obliga tions on NMFS in this case, arguing tha t the 2009 Salmonid BiOp is a n [a]ppro val of specific p rojects, suc h as c onstruction or manageme nt act ivities loc ated in a defined geogra phic area. 5 Se ct io n 15 08 .1 8 pr ov ide s th at t he wor d m aj or in t he p hra se m aj or fed er al a ct io n r ei nf orc es b ut d oe s no t ha ve a m ea ni ng i nde pe nd en t of th e ter m s ig ni fi ca nt ly in s ig ni fi ca n tly a ff ec ti ng t he h um an en vi ro nm en t . 11 1 Doc. 83 at 11. 2 actions approv ed by permi t or other regulatory de cision as 3 well as federa l and federally assiste d activities. 4 Unde r this provision, Proj ects i nclud e § 1508.18( b)(4). 5 6 1. 7 Ramsey v . Kant or, 96 F.3d 434 (9th Cir. 199 6), is the 8 9 10 11 Ramsey v . Kantor is Distinguishable. only dec ision to have app lied 40 C.F.R. § 1508.18 (b)(4) to require NEPA a nalysis for a biological opin ion. The S melt NEPA Dec ision distinguish ed Ramsey: 20 ...Ramse y v. K antor, 96 F.3d 434 (9th Cir. 1996), [] applied NEPA to the National Marine Fisheries Service s ( NMFS ) i ssuance of a biological opini on and inci dental take statement ( ITS ) under ESA § 7 permitti ng state reg ulators to issue salmon fishi ng regulati ons consiste nt with that take statement. 96 F.3d at 441-44 5. Ramsey foun d the biological opinion and ITS constituted major federal action, triggeri ng NEPA comp liance, because it was clear ... both fro m our cases and from the federal regulati ons, see 40 C .F.R. § 1508.18, that if a federal permit is a prereq uisite for a project with adverse impact on the envi ronment, iss uance of that permit does constitu te major fed eral action and the federal agency i nvolved must conduct an EA and possibly a n EIS befo re granting it. Id. at 444. 21 Ramsey d etermined: 12 13 14 15 16 17 18 19 22 [T]he in cidental tak e statement in this case is function ally equival ent to a permit because the activity in question would, for all practical purposes , be prohibited but for the incidental take sta tement. Acc ordingly, we hold that the issuance of that sta tement constitutes major federal action for p urposes of NEPA. 23 24 25 26 27 28 Id. The Rams ey fed eral d efendants contended tha t there was insu fficient fed eral participatio n in a state run 12 1 project to require a n EIS. The Appeals Court disagree d: if a fe deral permit is a prerequisit e for a pr oject with a dverse impact on the environm ent, issuance of that per mit does constitute a major federal action.... triggerin g NEPA. Id. a t 444 (interna l citations and quotations omitted). Ramsey held tha t the incid ental take statement in [that ] case is functionally equivalent to a permit becau se the acti vity in ques tion would, for all practical purposes , be prohibi ted but for the inciden tal take statemen t. I d. Be cause the ITS was the functional equivale nt of a perm it, NEPA applied to the issua nce of the b iological op inion, despite federal defendan ts contenti on that the mere issuance of an ITS was insufficient federal particip ation in a state project. 2 3 4 5 6 7 8 9 10 Here, un like R amsey, the CVP is an entirely federal project, operated by Reclamation, a federal agenc y, renderin g Ramsey s functional equivalency analy sis largely irrelevant. Ramsey stands for two important principl es: F irst, under certain circumsta nces, a biologic al opinion m ay qualify as a major federal action f or NEPA purp oses; second, not every biologic al opinion i s a major federal action. 11 12 13 14 15 16 Smelt NE PA Dec ision at 16-17 (footnot es omitted)( emphasis 17 added). 18 Here, in an ar gument that would have been equally 19 applicab le in the smelt c ase, but was not raised there, 20 Plaintif fs sug gest that t he Smelt NEPA Decision i ncorrectly 21 22 23 24 conclude d that Ramsey is dist inguishable be cause the B iOp applies not on ly to opera tions of the federal CVP, but als o to operatio ns of the SWP, a state-run project. Plai ntiff s 25 maintain Recl amation sho uld not have to account for the 26 environm ental effects of a biological opinion it did not 27 produce on a w ater supply project it does not ope rate. 28 13 Doc. 1 2 3 4 5 6 7 106 at 1 1. But, Pla intiff s ignore th e interconnected nature of the SWP and CVP pr ojects. Re clamation and DWR have, for many years, o perate d the proje cts in a coordinated man ner. OCAP Bio logcal Assessment ( OCAP BA ) at 1-2. See The Bio logi cal Assessment ( B A ), p repar ed b y Reclamation, descr ibes the 8 project for wh ich consult ation was being sought a s the 9 ongoing operat ions of the CVP and SWP and potenti al future 10 actions that a re foreseea ble to occur within the period 11 covered by the project de scription. 12 13 14 15 Id. a t 1-1. The two water pr ojects , which are jointly operated by Rec lamation and DWR, sha re wat er resource s, storage, pumping, and conveyance faciliti es to manage and deliver one third of the water supply 16 for the State of Californ ia. 17 with ext ensive analyses o f the effects of coordin ated 18 operatio n of t he CVP and SWP on the Listed Specie s. 19 20 21 22 23 24 Reclamation s BA provide d NM FS For the reason s described below, it is the coordi nated operatio n of t he pro jects , rather than the propos ed modifica tion o f operations of fered by the BiOp, that trigg ers NEPA. M oreove r, although it is ultimately up to the agencies involved to de termine the appropriate lead agency , 25 Reclamat ion, a s the feder al project operator, wit h extensive 26 experien ce eva luating the environmental impacts o f wat er 27 deliveri es, is the more a ppropriate agency to bea r the NEPA 28 14 1 burden i n this case. 2 expertis e conc erning any unique environmental imp acts 3 resultin g from reduced SW P water deliveries, DWR can 4 5 6 7 8 9 10 To the extent Reclamation l acks particip ate in various wa ys i n the preparat ion of NEPA document s. Se e, e.g., 40 C.F .R. § 1501.5(b ) (permitti ng state agency t o act as co- lead agency). 2. Coordina ted Project Operations is the Proper Focu s of any NEPA Evaluation. Having c onclud ed that Ram sey stands for the dual 11 proposit ion th at while u nder certain circumstanc es, a 12 biologic al opi nion may qu alify as a major federal action for 13 NEPA pur poses ... not eve ry biological opinion is a major 14 15 16 17 federal action, the Smel t NE PA Decision re cognized th at a key factor i n deci ding i f a B iOp is major feder al action i s whether the Bi Op is bindi ng upon the action agenc y, citing 18 Westland s Wate r Dist. v. U.S. Dept. of Interior, Bureau of 19 Reclamat ion, 8 50 F. Supp. 1388, 1422 (E.D. Cal. 1 994). 20 Smelt NE PA Dec ision found that, while both agencies be ar s ome 21 responsi bility for imposi ng the RPAs on the Proje cts, 22 Reclamat ion s implem entat ion of the BiOp in the contex t of 23 24 25 26 27 28 The coordina ted Pr oject opera tions is the more approp riate focus of the N EPA in quiry: Here, to satisfy its obligations under NEPA , Reclamat ion initiate d formal consultation and prepared a BA to des cribe the proposed action. F WS, as the c onsulting ag ency, reviewed the BA, disagr eed with its conclusion, and issued the 2008 BiOp wit h an 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RPA. Se e BiOp i-vi. Reclama tion was free to accept or rejec t, in whole or in part, FWS s recommendat ions and advi ce prescribe d in that RPA. The con sultation regulati ons state th at the Federal [action] agen cy shall de termine whet her and in what manner to pro ceed with the action in l ight of its section 7 obligations and the Service s bi ological opinion. 50 C.F.R. § 402.15(a ).[FN 7] Ho wever, FW S could not is sue the BiOp wit hout also in cluding an RPA to mitigate jeopardy . FWS propo sed an RPA that called for actions that commit federal water to smelt protecti on. Reclama tion was not bound to accep t the prop osed RPA, bu t it did so. Resulting operatio ns reduced 2 008-09 wa ter deliveries by several hundred thou sand acre-feet. In this case, actions speak louder than words. [FN 7: C ourts have c onsistently held that the action a gency retain s the ultimate responsibility for deci ding whether , and how, to proceed with the prop osed action after Section 7 consultation. See, e.g ., Pyramid L ake Paiute Tribe of Indians v. Dep t of the Navy, 898 F.2d 1410, 1415 ( 9th Cir. 199 0); Tribal Village of Akutan v. Hodel, 869 F.2d 1185, 1193 (9th Cir. 1988) ( [the action] agency is no t required to adopt the alternat ives suggest ed in the biological opinion ); Sie rra Cl ub v. Mar sh, 816 F.2d 1376, 1386 (9t h Cir. 1987) ( The ESA does n ot give the FWS the power to ord er other agencies to comply with its requests or to veto their decisions. ); Westland s, 850 F. Su pp. a t 1422 ( Biological opinions are not bin ding on the Secretary ); Nat l Wi ldlife Fed n v. Coleman, 529 F.2d 359, 371 (5th Cir. 1976)( Section 7 does not give [the Service] a veto over the actions of other federal agencies ).] Plaintif fs argue tha t [] FWS s issuan ce of the 2008 BiOp req uires that FWS pr epar e an EIS, beca use a BiOp has a p owerful coer cive effect on t he action agency. Doc. 245-2 at 12 . On the one hand, if Reclamat ion had disr egarded the RPA, the 2008 BiO p would no t have provi ded an exemption from the ESA s take pro hibitions, p otentially subjecting the operator s to c ivil and criminal liability. 16 U.S.C. §§ 1538( a) (prohibit ing the take of listed species) ; 1536(o)(2) (a taking in compliance with a 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 biologic al opinion s ITS shall not be considered to be a pro hibited taki ng of the species concerned ) .[FN 8] Howev er, Fe deral Defendants argue Reclamation s departur e from the R PA would not necessarily viol ate Section 7 of the ESA , if Reclamation took alterna tive, reason ably adequate steps to insure the continue d existence of listed species. Tribal Village of Akutan, 8 69 F.2d a t 1193. This is sophistr y. Reclamat ion operated the joint Projects and mana ged federal resources (CVP water) in accordan ce with the RPA, resulting in a major revision of 2008-09 coordinat ed CVP operati ons and substant ial realloca tion of federal resources. T he only rea son Reclamation did so was to meet the mandate of the ESA a nd the BiOp. Bot h agen cies particip ated to some degree in the agency action at issue he re. Smelt NE PA Dec ision at 23-25 (footnot e omitted). Although both agencies participated in imposing restrict ions o n project operations, the district court ultimate ly con cluded that the only NE PA triggering action in 16 the smel t case was the operation of t he projects, not the 17 issuance of th e BiOp, whi ch was required by law a s a 18 conseque nce of the effect s of the coordinated projects 19 operatio ns. 20 21 22 23 24 25 26 27 28 The appr opriate focu s is Project operations, an d Reclamat ion is the a ppropriate lead agency. Reclamat ion proposed the action (in the form of t he Operatio ns and Crite ria Plan ( OCAP )) to FWS, wh ich triggere d the prepar ation of the BiOp . Reclamation has the ongoing stat utory authority to implement project operations a s prescribed by the OCAP. See, e.g., AR at 10 262 (BA at 1-1) ( The Bureau of Reclamat ion (Reclama tion) and the California Departme nt of Water Resources (DWR) propose to operate the Central Valley Project (CVP) and Stat e Water Pr oject (SWP) to divert, store, and convey CVP and SWP (Project) wa ter consistent with applicabl e law and contractual obligations. ); AR at 10263-64 17 1 (BA at 1-2 - 1-3) (i denti fyin g certain laws authoriz ing Bureau o peration of CVP); AR at 10270 -71 (BA at 1-9 - 1-10) ( Coordinat ed Operation A greement ( COA ) and P.L. 99-546 i mpose a Congressi onal mandate to Reclamati on to operate the CVP in conjunct ion with the SWP. FWS s involvement with regard t o future Pro ject operations i s limited, consisti ng primarily of its obligation to ensure that those op erations do not impair protection and recovery of threaten ed and endangered species, an obligati on that it s hares with Reclamation. 16 U.S.C. § 1536(a)(2). ). 2 3 4 5 6 7 8 Id. at 2 7-28. 6 9 In the f inal analysi s, FWS was asked for its opinion whether Re clamation s operations plans would je opardize the smelt. FWS provided that opinion, as required by law. Reclamation was not bound by the BiOp until it chose to proceed with the OCAP and impleme nt the RPA. Once Reclamation did so, oper ation of the Projects became the relevant agency action, and Reclamation, as action agenc y, is the m ore appropri ate lead agency under NEPA. The adaptive management protocol prescribed in the RP A leaves F WS with the final word on exactly what fl ow requirem ents will be imposed. Reclamation accept ed this arr angement as a constraint upon its o perations when it provis ionall y acc epte d the RPA. FW S played a key role in formulat ion, planning, and implementa tion of the R PA, with ful l knowledge that no NEPA complian ce had been undertaken. This is not a shell game in which the ag encies may leave the public t o guess wh ich ag ency has taken major federal action. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The s melt NEPA decisio n concluded: 6 Th e Sm el t NE PA D ec is ion a ls o fo un d th at R ec la ma ti on ha s g re at er exp er ti se c on ce rn in g the a ll eg ed a d ver se e nv ir on me nt al e ffe ct s, an d ro ut in el y ex am in es t hes e an d re la t ed im pa ct s as t he l ea d o r co -l ea d age nc y on N EP A re vi ew s o f pr op os ed CVP -S WP o pe ra ti on s an d f re qu en tl y h as the a bi li ty a nd a ut ho rit y to p ro po s e w ay s to m it ig at e th ese i mp ac ts , whi le FW S ha s li tt le to n o ex pe rt i se in o r au th or it y ov er ma ny o f th e se mat te rs . Id . at 2 8- 30. Ul ti ma te l y, as F ed er al D ef en da nts a rg ue i n t hei r sup pl em en ta l br ie f, D oc. 2 22 , th e a llo ca ti on o f NE PA r es pon si bi li ti es is lef t to t he a ge nc ie s inv ol ve d in t h e f ir st i ns ta nc e. Se e H el ls C an yo n Pre se rv at io n Co un ci l v. Ja co by , 9 F . S up p. 2 d 12 16 , 12 41 (D . Or . 199 8) (c on cl ud in g th at [ t] he d es ig n ati on o f a le ad a ge nc y . .. i s a ma t ter com mi tt ed t o ag en cy d isc re ti on a nd ... [ th er e is ] no th in g i n NE PA o r t he reg ul at io ns s ug ge st in g t ha t th e co u rts m ay o ve rr ul e th e det er mi na ti on by the a ge nc ie s th at a re in vo lv ed t ha t on e or m or e of t he m wil l be l ea d age nc y or a ge nc ie s. ) . 18 1 2 3 4 5 6 7 It is a close call w hether FWS s issuance of the BiOp and its RPA under th ese circumstances is major federal action under NEPA. This call need not be made, be cause Reclam ation, the agency with the ultimate authority t o implement the RPA, is ... joined a s a party, w hose actions must be evaluate d under NE PA. Id. at 3 1 (emp hasis in original). Had ther e been no other N EPA- triggering act ion before the 8 court, i t is a close call whether or not th e issu ance of t he 9 2008 Sme lt BiO p itself wo uld have triggered NEPA under Ramsey, 10 which in effec t operates as a last resort mechani sm when 11 federal action upon a pro ject would not otherwise require NEPA 12 13 14 15 complian ce. H owever, because Reclamation is subj ect to the jurisdic tion o f the court and Reclamation s opera tion of the projects to al locate subs tantial federal water re sources under 16 a coordi nated operations plan constitutes major f ederal 17 action, it was unnecessar y to apply Ramsey to fin d tha t th e 18 issuance of th e 2008 Smel t BiOp triggered NEPA. 19 A simila r conc lusion is warranted here. 20 21 22 23 24 Reclamation s operatio n of t he projects to comply with the 2009 Salmondid BiOp RPA s is m ajor federa l action under NEPA. Al though bo th agencies parti cipate d to some degree in imposing the RPAs upon project operat ions, the a gencies, not the c ourt, are charg ed 25 with all ocatin g NEPA resp onsibilities. 26 required to ev aluate whet her particular actions a re major 27 federal action s significa ntly affecting the human environment 28 19 The court is simply 1 under NE PA. 2 implemen tation of the RPA s as part of overall pro ject 3 operatio ns), n ot the issu ance of the BiOp, consti tutes major 4 5 6 7 H ere, the op eration of the projects (i.e. the federal action . 7 Ramsey s unique circumstances ar e not present here. Plaintif fs ar guments tha t the 2009 Salmonid BiOp 8 justifie s a di fferen t res ult are unpersuasive. 9 things, Plaint iffs emphas ize that NMF S plays a continuing role 10 in imple mentat ion of the 2009 Salmonid BiOp as a member of the 11 Water Op eratio ns Manageme nt Team ( WOMT ), jointl y (along with 12 13 14 15 A mong othe r Reclamat ion) d ecidin g whether actions recom mended by t echn ical staff ar e cons istent with the RPA, and making fi nal determin ations that prop osed operational actions are 16 consiste nt wit h ESA oblig ations. 17 conditio ns, Re clamation m ust consult monthly with NMFS 18 regardin g Kesw ick release s and submit a projected forecast to 19 NMFS, wh ich NM FS must rev iew and provide recommen dations to 20 Reclamat ion. 21 22 23 24 25 26 27 28 For example, un der specified 2009 Salmon id BiOp at 598. Reclama tion may seek relaxati on of release res trictions to meet other legal requirem ents with NMFS concurrence. 7 2009 Salm onid BiOp at Th is c on cl us io n is c ons is te nt w it h NM FS s C on su lt at io n Han db oo k, whi ch e xp la in s th at N MFS s r ol e is to as si st t he f ed er al a ct io n ag en c y in ev al ua ti ng t he i mp act s of p ro po s ed ac ti on s on t he e nv iro nm en t an d in te gr at in g th e fo rm al co ns ul ta ti o n p ro ce ss i nt o [t he a cti on a ge nc y s ] ove ra ll e nv ir on me nt al co mp li an ce . FW S & NM FS C on su lt at ion H an db oo k a t 411. Ju di ci al N ot ic e has p re vi ou sl y be en t ak en o f th is d ocu me nt i n th e rel at ed C on so li da te d Del ta S me lt C a ses . S ee S an L ui s & Del ta -M en do ta Wat er A ut ho ri ty v . Sa laz ar , -- - F. Sup p. 2 d -- -, 2 00 9 WL 34 28 48 7, * 3 ( E.D . Cal . Oc t. 1 5, 2 00 9) , ava il ab le a t: htt p: // ww w. nm fs .n oa a. gov /p r/ pd fs /l a ws/ es a_ se ct io n7 _h an db ook .p df . 20 1 2 3 4 5 6 7 599. This is no dif ferent than the 2008 Smelt BiOp, wh ere the adaptive manag ement proto col prescribed in the RP A leaves FWS with the final word on ex actly what flow requirem ents will be imposed. Here , as w ith the 2008 Smelt BiOp , Rec lamation accepted this arrangement as a constraint upon its ope rations 8 when it provis ionall y acc epte d the RPA. 9 played a key r ole in form ulating, planning, and i mplem enti ng 10 the RPA. 11 operatio n of t he projects by Reclamation, not the issuance of 12 13 14 15 Similarly, NMFS But, this does not change the fact that it is th e the BiOp that triggers NE PA. It may well b e that Recl amation as actio n agen cy must loo k to NMFS as the expert consulting agency f or exp ertise, gui dance, and analysis in achieving NEPA 16 complian ce to the extent such knowledge and acume n is 17 unavaila ble wi thin Reclam ation. 18 Plaintif fs ha lf-hearted invocation of 40 C .F.R. § 19 1508.18( b)(2) is unpersua sive. 20 as major feder al action formal plans ... which guide or 21 22 23 24 Section 1508.18(b )(2) defines prescrib e alte rnative use s of federal resources, upon which future agency actions will be based. Plaintiffs suggest that NMFS s i ssuanc e of the Bi Op triggers this provisi on because 25 the BiOp tell s the CVP/SWP operators how, when, and i n wh at 26 quantiti es to use their r esources to avoid jeopar dizing 27 species listed under the [ESA]. 28 21 Doc . 115 at 3. Agai n, u ntil 1 Reclamat ion de termined th at it would provisionall y accept the 2 RPA s, t he BiO p was not b inding upon Reclamation. 3 way of k nowing whether it s recommendations (in th e form of 4 5 6 7 NMFS had no RPAs) wo uld be accepted, accepted in part, or rej ected outright . The BiOp did n ot guide or prescribe anything until it was p rovisionall y accepted. After Recla mation 8 provisio nally committed t o im plement the RP As, they be came 9 binding and ef fective. 10 the expe rtise or ability to implement the RPAs on its own. 11 would be futil e to requir e NMFS to prepare NEPA d ocumentation 12 13 14 15 N o party has suggested th at NMFS has It on a set of ac tions that the action a gency is free to disregar d or s ubstantiall y modify. The major fed eral action here is implem entati on of the RPAs as a par t of coordinate d 16 project operat ions. 17 manageme nt pro cess, both NMFS and the Bureau exer t some 18 control over t he implemen tation process. 19 agencies to de termine how to allocate NEPA respon sibilities 20 among th emselv es and any other federal or state a gencies. 21 22 23 24 25 26 27 28 Beca use of the nature of the adaptive It is u p to the Plaintif fs re ference in their supplemental brief , Doc. 225, to Append ix A, Secti on 4.01m of NOAA s NEPA Guideline s is unpersua sive. Section 4. 01m defines major feder al action, An activ ity, such as a plan, project or program, which ma y be fully or partially funded, regulated, conducte d, or approv ed by a Federal agency. Major reinforc es, but does not have a meaning ind ependent of sign ificantly a s defined in Section 4.01.x. and 6.01. of this Order. Major actions require 22 1 preparat ion of an EA or EIS u nless covered by a CE (40 CFR 1508.18). CE Q s definition of scope regardin g the type of actions, the alternatives consider ed, and the impacts of the action should be used to assist deter minat ions of the type of document (EA or E IS) needed f or NEPA complianc e (40 CFR 1508.25) . 2 3 4 5 6 7 Plaintif fs sug gest that N MFS s issuance of the 20 09 Salmonid BiOp fal ls squ arely withi n this definition of ma jor federal 8 action becaus e NMFS is indisputably regul ating the 9 operatio ns of the [CVP] a nd [SWP], and [u]nder the BiOp NMFS 10 will con duct a daptive management, [by making] regular and 11 ongoing decisi ons determining how the projects operate. 12 13 14 15 225 at 2-3 (em phasis adde d). Doc. Plaintiffs overlook the cent ral focus of secti on 4.01m, t hat major federal action is an activit y, suc h as a plan , project or program. Here, the 16 activity is th e operation of the projects. 17 consulta nt, do es regulate that activity, and part icipates in 18 controll ing co nducting pr oject operations under t he adaptive 19 manageme nt pro tocol set f orth in the RPA along wi th 20 Reclamat ion, t he project operator, but this does not transform 21 22 23 24 25 NMFS, as the issu ance o f the BiOp itself into a NEPA trigg ering action. 8 Finally, Plain tiffs cite Anacostia Wa tershe d Soc. v. Babbitt, 871 F . Supp. 475 , 482 (D.D.C. 1994), whi ch addresses 26 8 27 28 I n Ra ms ey , th e ac ti vit y wa s no t c ond uc te d by a f ed er al ag en cy , so the r eg ul at io n it se lf (t he b io lo gi c al op in io n) c on st it ut ed ma jo r fe de r al act io n. He re , ho we ve r, wh er e op er a tio n of t he p ro je ct s is pr im ar il y t he res po ns ib il it y of R ec lam at io n, a lo n g w it h DW R, R am se y is di st in gu is ha b le. 23 1 whether an age ncy may rel y on the NEPA compliance of another 2 agency t o just ify its own non-complia nce. 3 National Park Service ( N PS ), without performing any NEPA 4 5 6 7 In Ana costia, the analysis of it s own, tran sferred jurisdiction ove r portions of a Nation al Par k to the Di strict of Columbia for d evelopment of a theme park. NPS argued tha t its own NEPA obligations we re 8 satisfie d by p ast and fut ure NEPA compliance by a federal 9 planning commi ssion charg ed with approving develo pment 10 concepts withi n the Distr ict of Columbia. 11 rejected this contention, concluding that NPS mus t tak e it s 12 own hard look at the envi ronmental impacts. 13 Id. at 48 4. Critical ly, in Anacostia, it was undisputed that the 14 15 The di strict court developm ent pr oject const ituted major federal act ion. 16 Anacosti a ther efore sheds no light on whether the issuance of 17 the 2009 Salmo nid Bi Op, standing alone, constitutes major 18 federal action . 19 federal action is identif ied, all agencies partic ipating in 20 that act ion be ar NEPA res ponsibilities that canno t be absolved 21 22 23 24 Ana costi a me rely exp lains that, once a major simply b ecause another ag ency has engaged i n the NEPA process. Likewise , beca use NMFS pl ays an integral role in formulating and requ iring implementat ion of the RPAs as part of overall 25 project operat ions, NMFS is not be absolved of re sponsibility 26 under NE PA eve n if Reclam ation comple ted a NEPA review on its 27 own. 28 Ho wever, Anacostia does not suggest that NMFS had to be 24 1 the lead agenc y in order to satisfy its own NEPA obligations, 2 given th at NMF S could par ticipate in the NEPA pro cess as a 3 joint le ad age ncy or cons ulting agency. 9 4 5 6 7 It is th e impl ementation of the RPAs, as part of overall project operat ions, not t he issuance of the BiOp, that is the major f ederal action in this case. Both Reclam ation and 8 NMFS par ticipa te in imple menting the RPAs. Under NEPA, it is 9 up to bo th age ncies to allocate their NEPA compliance 10 responsi biliti es on reman d. 10 11 12 13 14 15 16 17 3. Implemen tation of th e BiOp and its RPA Effect a Signific ant Change t o the Operational Status Quo. Based on the d eterminatio n that it is Reclamation s implemen tation of the BiO p and its RPA, not the issuance o f the BiOp , that is the pro per focus of any NEPA in quiry, does Reclamat ion s implementat ion trigger NEPA obligat ions? The 18 relevant stand ards a re de scri bed in the Sme lt NEPA Decisio n: 19 Projects such as the CVP and SWP, constructed pri or 20 21 22 23 24 25 26 27 28 9 Pla in ti ff s al so r el y on Id ah o v. I C C, 35 F . 3d 5 85 ( D. C. Ci r. 1 99 4) , whi ch r ej ec te d th e IC C s c on te nt io n th at i t ne ed n ot c om ply w it h NE PA bec au se i t re qu ir ed a pr iv at e ap pl i can t to c on su lt w it h var io us f ed er a l and s ta te a ge nc ie s ab out s pe ci fi c e nvi ro nm en ta l im pa ct s and r et ai ne d jur is di ct io n to m on it or co mp li an ce wit h th e co ns ul ta ti on re qu ir em en ts , hol di ng t ha t [ a] n ag enc y ca nn ot d e leg at e it s NE PA r es po nsi bi li ti es i n thi s ma nn er .. .. H er e, wh er e no N E PA co mp li an ce h as b ee n p er fo rm ed a t all , NM FS h as y et t o att em pt t o de l ega te i ts o wn N EP A re spo ns ib il it ie s vis -à -v is p ro je ct o pe rat io ns t o an o the r ag en cy . 10 This is not an endorsement of D ef en da n t I nt er ve no rs ar gu me nt th e dis tr ic t co ur t la ck s aut ho ri ty t o e njo in o pe ra ti on o f as pec ts o f th e R PAs bec au se N MF S s is su an ce of t he B iO p it se lf h as n ot b ee n fou nd u nl aw fu l . Def en da nt I nt er ve no rs wa nt t o ha ve the ir c ak e an d ea t it to o. If , as the y ins is t, R ec la ma ti on h as th e fi na l w ord o n im pl em en ta ti on of t he B iO p, Rec la ma ti on s f ai lu re to c om pl y wi t h N EP A em po we rs t hi s Cou rt t o is su e app ro pr ia te i nj un ct iv e r el ie f ag ai n st an y pa rt y ac ti ng i n c on ce rt w it h Rec la ma ti on , so l on g as su ch i nj un c tiv e re li ef d oe s no t vio la te t he E S A. 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to the d ate on which NEPA became effective, Janua ry 1, 1970, are not ret roactively subject to NEPA. See Upper Sn ake River Ch apter of Trout Unlimited v. Hodel, 9 21 F.2d 232, 234 (9th Cir. 1990). However, if an on going projec t undergoes changes which themselv es amo unt to major Federal actions, the operatin g agency mus t prepare an EIS. Id. at 234-35 (citing Andrus v. Si erra Club, 442 U.S. 347 , 363 n. 21 (1979 )(explaining that major federal actions include the expansi on or revision of ongoing programs )). The cr itica l in quiry is wheth er the BiOp cau ses a change to the operational status qu o of an exist ing project. Upp er S nake River, 921 F.2d at 235. Upper Sn ake River concern ed Reclamation s d ecision to reduce f lows below P alisades Dam and Reservoir to below 1, 000 cfs [d] ue to lack of precipitation . .. to incre ase water st ored for irrigation.... 921 F.2d at 234. Althou gh it had been st andard operating procedur e since 1956 to maintain flows below that dam above 1, 000 cfs, dur ing previous dry periods, the average flow had be en lower than 1,000 cfs for 5 55 days (or 4.75% of th e total days in operation). Id. at 233. Because the challenged flow fluctuations were wit hin historic operational patterns, no NEP A complian ce was requi red: The Fede ral defendants in this case had been operatin g the dam fo r upwards of ten years before the effe ctive date o f the Act. During that period, they have fr om time to time and depending on the r iver s flow level, adjusted up or down the volu me of water released from the Dam. What they did in prior ye ars and what they were doing during t he period un der consideration were no more tha n the routin e managerial actions regularl y carried on from the outset without change. They a re sim ply o perating the facility in the mann er intended. In short, they are doing nothing new, nor mor e extensive, nor other than that con templated wh en the project was first operatio nal. Its ope ration is and has been carried on and the c onsequences have been no differen t than those in years past. The plai ntiffs point out that flow ra tes have been sig nificantly b elow 1,000 cfs for periods of seven da ys or more o nly in water years 1977, 1982, an d 1988, all years of major drought. They also not e that prior to construction of the dam, 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 the lowe st recorded flow rate did not fall below 1400 cfs . From these facts, they argue that the Bureau s reduction o f the flow below 1,000 cfs is not a ro utine manage rial action. However, a particul ar flow rate will vary over time as changing weather con ditions dictate. In particul ar, low flows are the routine during drought years. What does not change is the Bureau s monitoring and control of the flow rate to ensur e that the m ost practicable conservation of water is achieved in the Minidoka Irrigation Project. Such activi ty by the Bureau is routine. Id. at 2 35-36 (emphasis added). Westland s spec ifical ly di stinguished Upper Snake River, a nd reasoned that whether or not an EIS wa s required will, of n ecessity, depend heavily upon the unique f actual circu mstances of each case. 850 F. Supp. at 1415 (citin g Wes tsid e Property Own ers v. Schlesin ger, 5 97 F.2d 1214, 1224 (9th Cir. 1979)). To some extent, the finding is based on whether the prop osed agency action and its environmental effects were within the contemplation of the original project whe n adopted or approved. See [Port of Astoria, Or . v. Hodel, 595 F .2d 467, 476 (9th Cir . 1979)]; Robinsw ood Community Club [v. Volpe], 506 F.2d 136 6 [(9th Cir. 1974 )]. T he inquiry requires a d etermination of whether plaintif fs have comp lained of actions which may cause si gnificant de gradation of the human environm ent. [City and C ount y of San Francisco v. Unite d States, 615 F.2d 498, 500 (9th Cir. 1980)]. Westland s, 850 F. Su pp. a t 1415 [(emphasis added)]. In Westl ands the taking of water for nonagricult ural purpose s [wa s] alleged to have changed the oper ational requ irements of the CVP, imposed new standard s for revers e flows in the Western Delta, carryove r storage in the Shasta reservoir, and ca used closure of the Delta cross-channel. Such actions and the envi ronmental ef fects alleged are not routine manageri al changes. Id. at 1421. Smelt NE PA Dec ision at 33-35. the smel t case as follows : 27 28 27 This approach was utili zed in 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Federal Defend ants present the Declaration of Paul Fujitani , Doc. 290-2, whi ch includes a revi ew of historic OMR flows a nd compares those flows to projecte d flows unde r the RPA. Based on Fujitani s declarat ion, Federal Defendants argue: As the a vailable his torical data show ... average OMR flow s in January have fluctuated from as high as -3,26 9 cfs (January 1998) to as low as -8,268 cfs (Jan uary 2003). Daily flows vary even more widely - for exampl e, in January 1998, daily OMR flows ra nged between 2,810 cfs and -9,530 cfs. See Ex. 1. The flows set forth in RPA Component 1, Actio n 2 are with in these historic parameters. Similarl y, the histo rical record shows average OMR flow s in Februar y have fluctuated from as high as 20,631 cfs ( February 1997) to as low as 9,086 cf s (February 2003). The February flows set fort h in R PA Com ponen t 1, Action 2 are also within t hese histori c parameters. RPA Comp onent 2 prov ides that under certain conditio ns, OMR flow s should be maintained between -1,250 and -5,000 cfs from the date Componen t 1 is compl eted until June 30 (or until water te mperatures a t Clifton Court Forebay reach 25 degre es Celsius). The available historic data shows a wide range o f OMR flows between January and July , and the fl ow ranges set forth in RPA Componen t 2 are with in these historic parameters. See Ex. 1. Therefor e, even afte r adopting the OMR flow restrict ions, Reclam ation continues to operate the CVP within exist ing law and the same overall flow par ameters, as it has done for decades. Id. at 2 2-23. Plaintif fs respond w ith the declaration of Thomas Boardman , Doc. 297-2, who opines that, under certain scenario s, the RPA c onstrains export pumping in a manner t hat departs from the status quo ante: I review ed historic data and considered how the 2008 BiO p might affe ct operations as compared to the pre- existi ng cri teria in D-1641. Based upon my revie w of those d ata, I found, in some circumst ances, opera ting the CVP and SWP to meet pre-exis ting D-1641 crite ria resulted in OMR flows mo re positive than -1,2 50 cfs. If those circumst ances occur, the new OMR criteria in the 28 1 2 3 4 5 6 7 8 9 10 11 2008 BiO p would not control. I also found, in some cir cumstances, operating the CVP and SWP to meet the pre-existin g D-1641 criteria resulted in OMR flow s within the range specified by FWS pursuant to the 2008 BiOp. If those circumst ances are pr esented again, th e 2008 BiOp may cont rol CVP and SWP operations, depending upon whe re in the ra nge FWS sets the OMR limit. In still other circu mstances, however, I found the pre- existi ng D-1641 criteria allowed OMR flows mo re negative than -5,0 00 cfs, the most negative flow rate a llowed under the 2008 BiOp. If those circumstanc es occur, the new operating criteria in the 2008 BiOp will definitely control CVP and SWP operatio ns. The changes in CVP and SWP oper ations neces sary to meet the new operatin g crit eria i n the 2008 BiOp will reduce availabi lity of the CVP and SWP to supply water. 12 Id. at ¶ 9. 13 Boardman also conclu ded that [i]n 2009, limits o n OMR flow s imposed by FWS under the 2008 BiOp resu lted in lower rates of CV P and SWP pumping than otherwise would ha ve been allo wed if only the preexisting criteria in D-1641 c ontro lled . Id. at ¶10. Boardman estimates that as a result of the 2008 BiOp limits o n OMR flows from mid February to the end of March an d from mid M ay to the end of June, the Jones Pumping Plant was un able to pump approximately 390,000 acre-f eet of water that it otherwise could have pum ped and prov ided to water users south of the Delta, i f only the p re-existing crite ria in D-1641 controll ed. Id. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fujitani s and Board man s conclusions are n ot inconsis tent. Fujit ani concludes that average an d daily OM R flows unde r the RPA fall within histori c average and daily fl ow ranges. Boardman opines t hat, even tho ugh any give n post-RPA average or d aily OMR flow fig ure may fall within historic ranges , under certain circumstance s, pre-RPA constraints would permit e ven more neg ative flows, resulting in eve n more exp ort capabili ty. Although Fujitani s conclusi on, that pos t-RPA ope rations fall w ithin the range of historic op erating conditions, may comply with the letter of Upper Snake River, the R PA s operatio nal changes violate the spirit and reason ing 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of Upper Snake River: This cir cuit has hel d that where a proposed federal action would not change the status quo, an EIS i s not necess ary. An EIS need not discuss the envi ronmental ef fects of mere continued operatio n of a facil ity. Bur bank Ant i-Nois e Group v. Goldschmidt , 623 F.2 d 115, 116 (9th Cir. 1980) (h olding EIS u nnecessary for federal financia l assistance in purchasing an existing airport since federa l action would not change status q uo), cert. d enied, 450 U.S. 965 (1981); see also Committee f or Auto Responsibility v. Solomon, 603 F .2d 99 2 (D. C. Cir. 1979) (holding governme nt lease of parking area to new parking manageme nt firm does not trigger EIS requirement since ar ea already u sed for parking so no change in statu s quo). We find the reasonin g of the district court in County o f Trinity v. Andrus particularly instruct ive. In Trinity the plaintiff s sought to enjoin t he Bureau fr om loweri ng the level of a reservoi r during the drought year of 1977 because of the p otential dam age to the fish population in the rese rvoir. The c ourt explained that the issue was not whether the actions are of sufficient magnitud e to require the preparation of an EIS, but rath er whether N EPA was intended to apply at all to t he continuin g operations of completed faciliti es. Id. at 1388. The court distingu ished the ca se from cases when a project takes pl ace in incre mental stages of major proporti ons, and from cases where a revision or expansio n of the ori ginal facilities is contempl ated, id. N either of these situations applied here, the co urt observed. Instead, [t]he Bu reau has nei ther enlarged its capacity to divert w ater from the Trinity River no r revised its procedures or standard s for releas es into the Trinity River an d the drawdo wn of reservoirs. It is simply o perating the Division within the range or iginally ava ilable pursuant to the authoriz ing statute, in response to changing environm ental condit ions. 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Id. at 1 388-89. The court then concluded that actions taken in ope rating the system of dams and reservoi rs (in parti cular, operational responses in a dro ught year) w ere not major Federal actions within the meaning of NEPA. The Fede ral defendan ts in thi s case had been operatin g the dam fo r upwards of ten years before the effe ctive date o f the Act. During that period, they have fr om time to time and depending on the r iver s flow level, adjusted up or down the volu me of water released from the Dam. What they did in prior ye ars and what they were doing during t he period un der consideration were no more tha n the routin e managerial actions regularl y carried on from the outset without change. They are sim ply operating the facility in the mann er intended. In s hort , they are doing nothing new, nor mor e extensive, nor other than that con templated wh en the project was first operatio nal. Its ope ration is and has been carried on and the c onsequences have been no differen t than those in years past. The plai ntiffs point out that flow rates have been sig nificantly b elow 1,000 cfs for periods of seven da ys or more o nly in water years 1977, 1982, an d 1988, all years of major drought. They also not e that prior to construction of the dam, the lowe st recorded flow rate did not fall below 1400 cfs . From these facts, they argue that the Bureau s reduction o f the flow below 1,000 cfs is not a ro utine manage rial action. However, a particul ar flow rate will vary over time as changing weather con ditions dictate. In particul ar, low flows are the routine during drought years. What does not change is the Bureau s monitoring and control of the flow rate to ensur e that the m ost practicable conservation of water is achieved in the Minidoka Irrigation Project. Such activi ty by the Bureau is routine. 25 921 F.2d at 235-36 (emphasis added). 26 Here, in contrast to the routine activities describe d in U pper Snake River and Trinity (cited in Upper Sn ake River), Reclamati on s decision to implemen t the RPA is a revis[ion] [of] its 27 28 31 1 procedur es or standa rds for operating the Jones pumping plant and ot her facilities significantly affectin g OMR flows. This can be determined from the face of the BiOp and uncontroverted analyses of public d ata. Reclam ation s and FWS s joint inter est is pellu cid: the Pr ojects w ater delivery operations must be materi ally c hanged to restric t project water flows to protect the smelt. Reclamation s implemen tation of th e BiOp is major federal actio n because it substanti ally alters the status quo in the Projects operations. 2 3 4 5 6 7 8 Smelt NE PA Dec ision at 37-42 (emphasis added; footnote s 9 omitted) . 10 11 12 13 14 15 Likewise , impl ementation of the 2009 Salmon id BiOp is not a contin uation of the sta tus quo. followin g as s pecific exa mples of significant cha nges imposed by the 2 009 Sa lmonid BiOp: ¢ Action I V.2.1 of the BiOp s RPA imposes an entirely new inflow to exp ort ratio on the San Joaquin River s water fl ows. 2009 Salmon id BiOp at 641. ¢ Actions I.2.2 through I.2 .4 establishes new Keswick Dam release requir ements and rest rictions . 2009 Salmonid BiOp at 592-60 3. ¢ Action I V.1.2 requires ne arly year-round modification of DCC g ate op erations, i nvol ving gat e closures during periods when D CC gate ope rations were previously unrestri cted. 2009 Salmo nid BiOp at 635-40. ¢ Action I V.2.3 calls for more restrictive OMR flow s of 2,500 cf s to -5,000 cfs. 200 9 Salmon id BiOp at 648-52. ¢ Three se parate actions im pose a subst antially higher fishery flow r elease sche dule on New Melones for the purporte d bene fit of stee lhead. 16 17 18 19 20 21 22 23 24 25 26 27 28 Pl aintiffs offer the o First, A ction III.1. 3 req uire s a set minimu m flow schedule for the ben efit of steelhead by mandatin g the rele ase of betwe en 186,000 to 589,000 acre-feet annually , depending on water year type. 2009 32 1 Salmonid BiOp at 622-23 and Appendix 2-E. 2 o Second, Action III.1.2 requires Recla mation to release additional w ater (above the new flow required by Appendix 2-E), if needed, to ma intain new, low er minimum t emperatures at a specific location in the Stan islaus River. 2009 Salmonid BiOp at 620-21. 3 4 5 6 o Third, A ction VI.2.1 increases the minimum flow required at Vernalis on the San Joaquin River during t he April-May pulse fl ow (VAMP) peri od, and directs Reclamation to make releases from Goodwin Reservoi r on the Sta nislaus River to meet these n ew flow req uirements. 2009 Salmonid BiO p at 641-45. 11 7 8 9 10 11 12 13 14 15 Federal Defend ants do not concede that all of the se Actions consti tute new op erational restrictions. For example, Actions I.2.2. A and I.2.2 .B merely provide that R eclamation will con sult w ith NMFS an d other agencies if the end of ye ar storage at Sha sta Reservo ir reaches a certain lev el; they do 16 not impo se any new operat ional restrictions. 17 Salmonid BiOp at 593 -95. 18 acknowl edge t hat at leas t Action IV.2.3, which d escribes OMR 19 flows be tween Januar y thr ough June, constit utes a revised 20 procedu re or standard f or operations, as that t erm is 21 22 23 24 See 2009 How ever, Federal Defendants interpre ted an d used in t he Court s Delta Smelt D ecision. Doc. 100 at 21 . Federal Defend ants insist that NEPA compliance is not 25 26 27 28 11 Pl ai nt if fs S to ck to n Eas t Wa te r Di s tri ct , Oa kd al e Ir ri ga tio n Dis tr ic t, a nd S ou th S an Jo aq ui n Ir r iga ti on D is tr ic t al so co nt en d th at por ti on s of t he 2 00 9 Sal mo ni d Bi Op con fl ic t wi th o th er c our t or de rs , a re poo rl y mo de le d, a nd a re in te rn al ly inc on si st en t. Se e Do c. 83 -3 a t 17 - 23. The se a rg um en ts a re p rem at ur e, a s t hey r el at e to t he m er its o f th e 20 0 9 Sal mo ni d Bi Op , no t th e q ue st io n ap p lic at io n of N EP A. 33 1 required becau se the 2009 Salmonid Bi Op does not change the 2 purpose of the CVP, and e ven after its provisiona l acceptance, 3 Reclamat ion co ntinues to operate the CVP within e xisting law. 4 5 6 7 Doc. 101 at 17 . But, thi s standard does not accu rately reflect the re levant auth orities. Upper Snake River, 921 F.2d at 235, quotin g Trin ity County, 438 F . Supp. at 1388-89, 8 distingu ished cases in wh ich Reclamation has enl arged its 9 capacity to di vert water ... revised its proced ures or 10 standard s for releasing i nto [a river] and the dr awdow n of 11 reservoi rs, ( emphas is added), which would trigge r NEPA, from 12 13 14 15 those ca ses in which Recl amation is simply opera ting [a project] withi n the range originally available pu rsuant to the authoriz ing st atute, in r esponse to changing envi ronmental 16 conditio ns, w hich w ould not trigger NEPA. 17 implemen tation of the RPA constitutes a non-trivi al r evis ion 18 of proce dures or standard s for the operation of the Projects 19 with dra conian consequenc es. 20 indicate that such revisi ons do, in fact, trigger NEPA. 21 22 23 24 25 Here, Upper S nake River and Trinit y I t is hard to imagin e more sign ificant adverse effects to the human environm ent th an were eff ectuated by implementati on of the RPAs. Federal Defend ants also a rgue that whether Reclam ation s 26 implemen tation of the com plex RPA will significan tly chang e 27 flows ca n only be determi ned based on a review of the facts in 28 34 1 the admi nistra tive record , which is not yet compl ete. 2 than off er any evidence o f the range of historic operating 3 conditio ns or how the imp lementation of the RPA d iffers from 4 5 6 7 Rather that ran ge, Pl aintiffs re ly entirely on NMFS s wa ter loss estimate s in t he 2009 Sal monid BiOp. NMFS projec ts th at the RPA will impac t water sup plies by reducing water exports 5-7%, 8 or aroun d 330, 000 acre-feet annually on average, over and 9 above th e effe ct of the restrictions imposed by the 2008 Smelt 10 BiOp. 11 estimate d that the RPA re quirements would decreas e deliveries 12 13 14 15 2009 Sa lmonid BiOp at 720. On the Stanislaus, NMFS to OID/S SJID b y thre e per cent on average an d to S tockt on E ast and Cent ral by twenty-two percent on average. 20 09 Salmon id BiOp App endix 5 at 54. 16 Federal Defend ants argue that these estimates are not 17 sufficie nt to establish t hat the RPA will signifi cantly change 18 flows. 19 principa lly re ly on Centr al Valley Project Improvement Act 20 ( CVPIA ), sec tion 3406(b )(2), which requires Rec lamation to 21 22 23 24 In sup port of thi s proposition, Federal D efendants dedicat e and manage annu ally 800,000 acre-feet of Cen tral Valley P roject yield for the primary purpose of i mplementing the fish , wild life, and h abitat restoration purposes a nd 25 measures autho rized by th is title.... 26 Stat. 46 00, 47 06 (1992). 27 [i]f th e Secr etary of th e Interior so chooses, d edication of 28 Pub. L. 1 02-575, 1 06 The 2009 Salmonid BiOp notes tha t 35 1 [CVPIA] b(2) w ater assets to the RPA actions could com pletely 2 or signi ficant ly offset t he projected water avail able, in 3 part, to offse t water cos ts of the RPA. 4 5 6 7 at 722. all. 2009 Salmoni d BiOp At th e outset, C VPIA assets do not offs et losses at At best, all losses attributable to the 200 9 Salmonid BiOp mig ht be counted tow ard the 800, 000 AF dedication , 8 reducing Recla mation s ab ility to us CVPIA assets in other 9 ways. 10 More per tinent ly, Federal Defendants and Defendan t 11 Interven ors po int out tha t, in 1999, Reclamation prepared a 12 13 14 15 programm atic E IS ( PEIS ) addressing the environm ental imp acts expected from implementat ion of the CVPIA, includ ing the mandator y 800, 000 AF dedi cation of water to envir onmental 16 purposes . 17 impacts result ing from re duced surface water supplies, 18 includin g many of the har ms claimed by the Plaint iffs. 19 However, that PEIS was pr epared more than ten (10 ) years ago. 20 Since th en, th e legal env ironment has changed con siderably. 21 22 23 24 The CVPIA PEIS evaluated various envir onmental For exam ple, t he Ninth Ci rcuit held that Reclamat ion is not required to co unt water devoted to ESA uses toward the 800,000 AF dedic ation, Bay Institute of San Francisco v. United 25 States, 87 Fed . Appx. 637 at 639-40 (9th Ci r. 2004), a llow ing, 26 in some years, significan tly more than the origin ally- inte nded 27 800,000 AF ded ication to environmental purposes. 28 36 The CVPIA 1 PEIS doe s not address thi s changed circumstance, nor does it 2 address how re duced water deliveries might compou nd the 3 already diffic ult present adverse economic and en vironmental 4 5 6 7 conditio ns in the Central Valley of Califor nia. At a bare minimum, relia nce on the CVPIA PEIS to comply wit h NEPA in this cas e is s omething th at should have been done explicitly 8 by Recla mation in an EA o r tiered EIS, neither of which has 9 been und ertake n. 10 11 12 13 14 15 At the v ery le ast, Action IV.2.3 (OMR Flow Restrictions) constitu tes a significant revision to Reclamation s proced ures or stand ards f or ope ratin g the CVP. This c an be determined from the face of the BiOp and undisputed facts, w ithout the need for a com pleted admi nistrative record. Under Upp er Snake 16 River an d Trin ity, s uch s ignificant revisio ns trigger NEPA, 17 provided the f inal elemen t -- whether there are s ubsta ntial 18 question s abou t whether a project may significant ly effect the 19 human en vironm ent -- is s atisfied. 20 21 22 E. Signific antly Affect the Huma n Environment. If the major federal act ion component is satisf ied, an 23 agency m ust pr epare an EI S where there are subst antial 24 question s abou t whether a project may cause signi ficant 25 degradat ion of the human environment. 26 27 28 Council, 428 F .3d at 1239. Nat ive Ec osyst ems In the Smelt ca se, Plainti ffs accurate ly mai ntained tha t the 2008 Smelt BiOp sa tisfies this 37 1 standard becau se it real locates hundreds of thou sands of 2 acre-fee t of w ater annually - enough water to serve t he n eeds 3 of milli ons of people - from the current reasonable and 4 5 6 7 benefici al mun icipal, ind ustrial, agricultural, a nd other uses. 1:09-c v-0040 7, Doc. 245-2 at 22. As is th e case here, the administrative record wa s not 8 yet full y reso lved in the Smelt case and the part ies agreed 9 the NEPA summa ry judgment motion shou ld be resolved without 10 referenc e to t he administ rative record. 11 Decision concl uded that certain, dis positi ve conclusi ons 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Smel t NEPA [could] be mad e without l ooking to the AR : First, i t is undispu ted that implementation of the RPA redu ced pu mping by more than 300,000 AF in the 2008-09 water year. See Boar dman Decl., Doc. 297 -2 at ¶10. FWS admitte d in its Answer to the State Water Co ntractors C omplaint that such reductions in exports from the Del ta may place greater demands upon alt ernative sou rces of water, including groundwa ter. Doc. 141 at ¶¶ 4, 16. The potenti al environm ental impact of groundwater overdraft is beyond r easonable di spute. See, e.g., NRDC v. Kempthor ne, 20 08 WL 5054115, *27 (E.D. Cal. Nov. 19, 2008)(no ting that th e final EIS cover ing re newal of the Sacr amento River Settlement Contracts predicts that rev ersion to th e pre-set tlement regime would have pot ential effec ts on the environment, becaus e the Sett lement Contr actors would rely more heavil y on local gr oundwater, l eading to air quality and soi l erosion problems, as well as impacts to local str eams and wild life. ); NRD C v. Kemp thorne, 2007 WL 4462395 (E.D. Ca l. 2007) (ac knowledging [r]isks th at will be created by implement ation of [] interim remedial actions desig ned to prot ect smelt include , but are not limi ted to ... Adverse effects on agriculture includin g, but not l imited to, loss of jobs, increase d groundwate r pumping, fallow ed land, and land sub sidence[;] [ and] Air pollution resulting from 38 1 2 3 4 5 6 7 heavier reliance on groundwater pumping and decrease in surfa ce irrigatio n.... ). This, i n and of itself, raises t he kind of serious questions about whether a projec t may cause significant degradation of th e human en vironment, r equiring NEPA compliance. That the Bure au must comp ly with NEPA is established a s a matter o f law. Smelt NE PA Dec ision at 43-44. Here, NM FS concedes that the RPA will materially reduce 8 water ex ports by 5-7 perc ent, or approximat ely 330,000 AF. 9 2009 Sal monid BiOp at 720 . 10 that suc h redu ctions have the potential to signif icantly 11 effect t he hum an environm ent are beyond dispute. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As with the Smelt NEPA Dec isio n, The smelt reductio ns hav e already c aused such impacts. As was r ecentl y recognize d in connection with Pla intiffs request for em ergenc y injunctive relief in this c ase [I]t is also undispu ted that any lost pumping capacity directly at tributable to the 2009 Salmon id BiOp wil l contribute to and exacerbate the curren tly catastro phic situati on faced by Plaintiffs, whose farms, b usines ses, water service areas, and impacted cities a nd counties, are dependent, some exclusiv ely, upon CVP and/or SWP water deliveries. The impacts overall of reduced d eliveries include irretrievab le resource losses (per manent crops, fallowed lands, destruct ion of famil y and entity farm ing bu sinesses); social disruption and dislocation; as well as environmental harms caused by, among other things, increased groundwater consumption and overdraft, and possible air quality reduction. Doc. 202 at 15-16. definite ly occ ur. This is not to say that such effects w ill F edera l De fendants and D efendant Interven ors ma y dispute t he magnitude of these ef fects and/or the caus al con nection bet ween implementation of t he 2009 Salmonid BiOp RPAs and th e effects, but there can be n o 39 1 dispute that there are substantial questions about whether 2 coordina ted op eration of the CVP and SWP under th e RPAs may 3 cause si gnific ant degrada tion of the human enviro nment. 4 5 6 7 Native E cosyst ems Council, 428 F.3d a t 1239 . No more is required to tr igger NEPA. It was up to the agencies to take the requ ired hard look. They did not. Once th ey satisfy 8 their NE PA obl igations, t he course of action ulti mately 9 undertak en is entitled to deference. 10 11 12 13 14 15 16 17 18 F. Miscella neous Issues. 1. Will App lication of NEPA to t he Issuance of the BiOp Frustrat e the Purpos es of the ESA? Defendan t Inte rvenors arg ue here, as they did in the Smelt NE PA dec ision, that application of NEPA to FWS s issuance of th e BiOp will frustrate the pur poses of th e ES A. Doc. 82 at 4-5. As in the Smelt case, [i]t is n ot necess ary to addre ss thi s argument because it is not necess ary to decide 19 whether NEPA a pplies to F WS s issuance of the BiO p. NEPA 20 applies to Rec lamation s acceptance and implement ation of the 21 BiOp and its R PA. 22 prematur e. This d ispute over statutory priority is S melt NEPA D ecision at 44. 23 24 2. The Amic us Brief. 25 The Paci fic Le gal Foundat ion ( PLF ) submitted a nineteen 26 page ami cus br ief in supp ort of Plaintiffs motio n for summary 27 judgment , in w hich they a rgue that requiring the Unit ed 28 40 1 States t o enga ge in the N EPA review process furth ers the 2 statute s purp ose of prov iding a democratic check on 3 signific ant fe deral actio ns that harm the human e nvironment. 4 5 6 7 Doc. 84. PLF s extensive policy arguments are un necessary, where th e plai n lang uage of the law imposes an obligation upon the Unit ed Sta tes Bureau of Reclamation to comply with NEPA. 8 Northern State s Power Co. v. United States, 89 F. 3d 13 50, 1355 9 (8th Cir . 1996 )(Wher e the intent of Congres s is c lear from the 10 plain la nguage of the sta tuto ry provision, legislative 11 history and po licy a rgume nts are at best interesting, at w orst 12 13 14 15 16 17 18 19 20 21 distract ing an d misleadin g, and in neither case authorit ative. ). W hile the amicus brief h as been ful ly consider ed, it need not b e discussed further. G. Remedies . Plaintif fs add ress remedi es issues in their motio n for summary judgme nt. As a s tarting point, an injunc tion shou ld not issu e wher e enjoinin g government action alle gedly in violatio n of N EPA might a ctually jeopardize natur al 22 resource s. 23 (9th Cir . 1984 ). 24 jeopardy is a complex one that has not yet been p roperly 25 briefed. 26 27 28 S ave Ou r Eco syst ems, 747 F.2d 1240, 1250 n.16 Th e interplay between the NEPA viola tion and More to the poi nt, preliminary injuncti on proceedi ngs ar e set for h earing on a firm schedul e for late March an d earl y April of this year. 41 No more is r equired at 1 this jun cture. 2 III. CONCLUSI ON 3 4 For all the re asons state d above, Plaintiffs are 5 entitled to su mmary judgm ent on their claim again st Federa l 6 Defendan ts tha t Recl amation s provisional a doptio n and NMFS 7 and Recl amatio n s impleme ntation of the 200 9 Salm onid BiOp and 8 its RPA withou t preparing any NEPA documentation violated 9 10 11 12 13 14 15 NEPA. Plaintif fs sha ll submit a form of order consisten t with this mem orandu m decision within ten (10) days of electronic service. SO ORDER ED Dated: March 5, 2010 16 /s/ O liver W. Wanger Oliver W. Wang er United States Distri ct Ju dge 17 18 19 20 21 22 23 24 25 26 27 28 42
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