`Case 1:20-cv-00426-DAD-EPG Document 106 Filed 05/11/20 Page 1 of 36
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`UNITED STATES DISTRICT COURT
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`FOR THE EASTERN DISTRICT OF CALIFORNIA
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`THE CALIFORNIA NATURAL
`RESOURCES AGENCY, et al.,
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` Plaintiffs,
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` v.
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`WILBUR ROSS, et al.,
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` Defendants.
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`PACIFIC COAST FEDERATION OF
`FISHERMEN’S ASSOCIATIONS, et al.,
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` Plaintiffs,
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` v.
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`WILBUR ROSS, et al.,
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` Defendants.
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`No. 1:20-CV-00426-DAD-EPG
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`ORDER GRANTING MOTION FOR
`PRELMINARY INJUNCTION
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`(Doc. No. 54)
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`No. 1:20-CV-00431-DAD-EPG
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`ORDER GRANTING IN PART AND
`DENYING IN PART AS MOOT
`MOTION FOR PRELIMINARY
`INJUNCTION AND HOLDING
`CERTAIN ISSUES IN ABEYANCE
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`(Doc. No. 81.)
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`INTRODUCTION
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`This order addresses motions for preliminary injunction filed in two largely overlapping
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`cases: California Natural Resources Agency v. Ross, No. 1:20-CV-00426-DAD-EPG (CNRA),
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`and Pacific Coast Federation of Fishermen’s Associations v. Ross, 1:20-CV-00431-DAD-EPG
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`Case 1:20-cv-00426-DAD-EPG Document 106 Filed 05/11/20 Page 2 of 36
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`(PCFFA). In CNRA, plaintiffs are the People of the State of California, California’s Natural
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`Resources Agency, and California’s Environmental Protection Agency (collectively,
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`“California”). In PCFFA, plaintiffs are a coalition of six environmental organizations led by
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`PCFFA (collectively, “PCFFA”).
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`Both sets of plaintiffs bring claims against the National Marine Fisheries Service (NMFS),
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`the U.S. Fish and Wildlife Service (FWS), the U.S. Bureau of Reclamation (Reclamation), and
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`various official representatives of those agencies. (CNRA, Doc. No. 51, First Amended
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`Complaint (FAC); PCFFA, Doc. No. 52, FAC.) California’s first and second claims for relief in
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`CNRA challenge the adoption by NMFS and FWS, respectively, of a pair of “biological opinions”
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`(BiOps) issued in 2019 pursuant to the Endangered Species Act (ESA), 16 U.S.C § 1531 et seq.,
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`regarding the impact on various ESA-listed species of implementing Reclamation’s updated Plan
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`for the long-term operation of the Central Valley Project (CVP) and the State Water Project
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`(SWP) (collectively, “Water Projects” “Plan” or “Proposed Action”). More specifically, in its
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`first and second claims for relief California alleges that NMFS and FWS violated the
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`Administrative Procedure Act (APA), 5 U.S.C. § 706, in various ways by concluding that the
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`Water Projects would not jeopardize the continued existence of the ESA-listed species addressed
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`in each biological opinion. California also brings claims against Reclamation under the ESA
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`(third claim for relief) for unlawfully relying on the 2019 BiOps in formally adopting and
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`implementing the Proposed Action, and the National Environmental Policy Act (NEPA), 42
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`U.S.C. § 4321 et seq., (fourth claim for relief). Finally, California alleges in its fifth claim for
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`relief that Reclamation has violated the APA by failing to comply with the California Endangered
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`Species Act (CESA), which compliance California alleges is required by various provisions of
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`federal law. PCFFA’s claims are largely identical to California’s, although its complaint does not
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`include a CESA-based claim. (PCFFA, Doc. No. 52, First Amended Complaint.)
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`On March 25, 2020, these cases were transferred to this district from the U.S. District
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`Court for the Northern District of California in light of related cases already pending before the
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`undersigned. (CNRA, Doc. No. 26; PCFFA, Doc. No. 112.)
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`Case 1:20-cv-00426-DAD-EPG Document 106 Filed 05/11/20 Page 3 of 36
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`Now pending before the court are inter-related and overlapping motions for preliminary
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`injunction in both cases. (PCFFA, Doc. No. 81 (filed March 5, 2019); CNRA, Doc. No. 54 (filed
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`April 21, 2019).) The briefs, declarations, and attachments submitted in connection with these
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`pending motions make up a lengthy and complex record. PCFFA and California have urged the
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`court to act expeditiously before certain events take place in May. Accordingly, the court
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`accelerated the briefing schedule where necessary and set a hearing on the pending motions for
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`May 7, 2020. All parties made appearances through counsel at an all-day videoconference
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`hearing on that date, as stated on the record. (See PCFFA, Doc. No. 167; CNRA, Doc. No. 99).
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`Thereafter, the parties submitted a small number of additional documents referenced at the
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`hearing, which the court has also reviewed.
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`PCFFA requests that the court issue a broad preliminary injunction order “temporarily
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`setting aside” the 2019 BiOps and prohibiting Federal Defendants from implementing or taking
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`any actions in reliance on those BiOps, including prohibiting Reclamation from implementing the
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`Proposed Action in reliance on those BiOps. (PCFFA, Doc. No. 81-1 at 2–3.) PCFFA also has
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`requested that the court order Federal Defendants to instead adhere to the previous operational
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`regime for the Water Projects authorized pursuant to previously-controlling BiOps issued in 2008
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`and 2009 by FWS and NMFS, respectively, until this court can resolve the merits of PCFFA’s
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`claims asserted in the pending action. (Id. at 2.) PCFFA’s request was accompanied by extensive
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`and wide-ranging briefing challenging numerous aspects of the Proposed Action and the 2019
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`BiOps, focusing on issues related to operations at the Water Projects’ export pumping facilities in
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`the southern portion of the Sacramento-San Joaquin Delta (Delta) as well as instream temperature
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`management planning and protocols for Shasta Dam on the Upper Sacramento River and New
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`Melones Reservoir on the Stanislaus River. (See generally PCFFA, Doc. No. 86.) The record
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`presented by PCFFA, Federal Defendants, and Defendant Intervenors in PCFFA in connection
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`with the pending motions also contains extensive information addressing how the planned
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`operations may, or may not, harm ESA-listed winter-run Chinook salmon (winter-run), spring-run
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`Chinook salmon (spring-run), California Central Valley steelhead (CCV steelhead), and Delta
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`smelt.
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`California’s motion for preliminary injunction is more narrowly focused on the period
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`from now until May 31, 2020. It requests that the current operating regime (i.e., the Proposed
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`Action as approved by the 2019 BiOps) be enjoined from the date of this court’s order through
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`and including May 31, 2020, “to the extent that operation is inconsistent with the requirement in
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`Reasonable and Prudent Alternative Action IV.2.1,” which was contained within NMFS’s 2009
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`BiOp (2009 NMFS BiOp). (CNRA, Doc. No. 60 at 7–8.) (emphasis added). The emphasized text
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`requests imposition of one aspect of the 2009 NMFS BiOp that was not carried forward into the
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`2019 NMFS BiOp: a restriction on the amount of exports permitted at the CVP and SWP
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`pumping plants in the South Delta that operates by imposing an inflow to export ratio, with the
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`inflow numerator based upon flow in the San Joaquin River measured at Vernalis. California’s
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`motion focuses on harm during this narrower period to ESA-listed Delta smelt and CCV
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`steelhead, as well as to CESA-listed Longfin smelt. (See generally CNRA, Doc. No. 54.)
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`These requests for preliminary injunctive relief are not mutually exclusive, since the
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`broader injunction sought by PCFFA’s motion encompasses the relief requested by California.
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`Having considered the papers filed thus far and the parties’ arguments, for the reasons
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`explained below, the court will: (a) grants plaintiffs’ joint request to enjoin the Proposed
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`Action’s export operations in the South Delta and reinstate RPA Action IV.2.1 from the 2009
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`NMFS BiOp from the date of this order up to and through May 31, 2020, on the specific ground
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`that operations carried out pursuant to the Proposed Action will irreparably harm threatened CCV
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`steelhead; (b) deny California’s motion in all other respects as having been rendered moot by this
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`order; (c) deny PCFFA’s request to enjoin operations on the Stanislaus River as moot; and
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`(d) hold all other aspects of PCFFA’s motion in abeyance with the understanding that the court
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`intends to issue a separate order addressing those remaining requests for injunctive relief in the
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`near future.
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`STANDARD OF DECISION
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`“The proper legal standard for preliminary injunctive relief requires a party to demonstrate
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`‘that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the
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`absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction
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`Case 1:20-cv-00426-DAD-EPG Document 106 Filed 05/11/20 Page 5 of 36
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`is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting
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`Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)); see also Ctr. for Food Safety v.
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`Vilsack, 636 F.3d 1166, 1172 (9th Cir. 2011) (“After Winter, ‘plaintiffs must establish that
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`irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.”); Am.
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`Trucking Ass’n, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). The Ninth
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`Circuit has also held that an “injunction is appropriate when a plaintiff demonstrates . . . that
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`serious questions going to the merits were raised and the balance of hardships tips sharply in the
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`plaintiff’s favor.” All. for Wild Rockies v. Cottrell, 632 F.3d 1127, 1134–35 (9th Cir. 2011)
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`(internal quotation and citation omitted).1 For the purposes of injunctive relief,
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`“serious questions” refers to questions which cannot be resolved one
`way or the other at the hearing on the injunction and as to which the
`court perceives a need to preserve the status quo lest one side prevent
`resolution of the questions or execution of any judgment by altering
`the status quo. Serious questions are substantial, difficult and
`doubtful, as to make them a fair ground for litigation and thus for
`more deliberative investigation.
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`Republic of the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988) (quotations marks and
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`citation omitted).
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`The party seeking an injunction bears the burden of proving these elements. Klein v. City
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`of San Clemente, 584 F.3d 1196, 1201 (9th Cir. 2009); see also Caribbean Marine Servs. Co. v.
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`Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (citation omitted) (“A plaintiff must do more than
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`merely allege imminent harm sufficient to establish standing; a plaintiff must demonstrate
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`immediate threatened injury as a prerequisite to preliminary injunctive relief.”). Finally, an
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`injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the
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`plaintiff is entitled to such relief.” Winter, 555 U.S. at 22.
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`An injunction must be narrowly tailored to avoid the irreparable identified. Nat’l Wildlife
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`Fed’n v. Nat’l Marine Fisheries Serv., 886 F.3d 803, 823 (9th Cir. 2018). “There must be a
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`1 The Ninth Circuit has found that this “serious question” version of the circuit’s sliding scale
`approach survives “when applied as part of the four-element Winter test.” All. for the Wild
`Rockies, 632 F.3d at 1134. “That is, ‘serious questions going to the merits’ and a balance of
`hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction,
`so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the
`injunction is in the public interest.” Id. at 1135.
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`sufficient causal connection between the alleged irreparable harm and the activity to be enjoined,
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`but a plaintiff need not further show that the action sought to be enjoined is the exclusive cause of
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`the injury.” Id. (internal quotation and citation omitted). Moreover, “[i]t is not an abuse of
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`discretion for a court to issue an injunction that does not completely prevent the irreparable harm
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`that it identifies.” Id.
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`A.
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`APA
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`APPLICABLE STATUTORY STANDARDS
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`Under the APA, a district court can “set aside only agency actions that are ‘arbitrary,
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`capricious, an abuse of discretion, or otherwise not in accordance with law.’” The Lands Council
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`v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc) (citing 5 U.S.C. § 706(2)(A)), overruled
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`on other grounds by Winter, 555 U.S. 7; see also Earth Island Inst. v. Carlton, 626 F.3d 462, 468
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`(9th Cir. 2010). An agency’s “determination in an area involving a ‘high level of technical
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`expertise’” is to be afforded deference. McNair, 537 F.3d at 993. The district court’s role “is
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`simply to ensure that the [agency] made no ‘clear error of judgment’ that would render its action
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`‘arbitrary and capricious.’” Id. (citing Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989)).
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`“Factual determinations must be supported by substantial evidence,” and “[t]he arbitrary and
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`capricious standard requires ‘a rational connection between facts found and conclusions made.’”
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`League of Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d 755,
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`759–60 (9th Cir. 2014) (internal citations omitted).
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`This requires the court to ensure that the agency has not, for instance,
`“relied on factors which Congress has not intended it to consider,
`entirely failed to consider an important aspect of the problem, offered
`an explanation for its decision that runs counter to the evidence
`before the agency, or [an explanation that] is so implausible that it
`could not be ascribed to a difference in view or the product of agency
`expertise.”
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`McNair, 537 F.3d at 987 (citing Motor Vehicle Mfrs. Assn., Inc. v. State Farm Mut. Auto. Ins.
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`Co., 463 U.S. 29, 43 (1983)).
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`B.
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`ESA
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`“Under the ESA, the Secretary of the Interior and the Secretary of Commerce are charged
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`with identifying threatened and endangered species and designating critical habitats for those
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`species.” Nat. Res. Def. Council v. Jewell, 749 F.3d 776, 779 (9th Cir. 2014) (NRDC v. Jewell)
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`(citing 16 U.S.C. § 1533). FWS and NMFS administer the ESA on behalf of the Departments of
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`the Interior and Commerce, respectively. See 50 C.F.R. §§ 17.11, 222.101(a), 223.102,
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`402.01(b). Most pertinent to the present motion is Section 7 of the ESA (Section 7). 16 U.S.C.
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`§ 1536. Section 7(a)(2) imposes a procedural duty on the federal agencies to consult with the
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`FWS or NMFS, depending on the protected species,2 to “insure that any action authorized,
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`funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of
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`any endangered species or threatened species or result in the destruction or adverse modification”
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`of critical habitats of listed species. 16 U.S.C. § 1536(a)(2). An agency “action” is defined to
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`mean all activities carried out by federal agencies, including, among other things, the granting of
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`licenses and permits. See 50 C.F.R. § 402.02. “If a contemplated agency action may affect a
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`listed species, then the agency must consult with the Secretary of the Interior, either formally or
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`informally.” Am. Rivers v. NMFS, 126 F.3d 1118, 1122 (9th Cir. 1997).
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`Formal consultation results in the issuance of a BiOp by the relevant wildlife agency
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`(FWS or NMFS). See 16 U.S.C. § 1536(b). If the BiOp concludes that the proposed action
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`would jeopardize the species or destroy or adversely modify critical habitat, see id. § 1536(a)(2),
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`then the action may not go forward unless the wildlife agency can suggest a “reasonable and
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`prudent alternative[]” (RPA) that avoids jeopardy, destruction, or adverse modification. Id.
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`§ 1536(b)(3)(A). If a BiOp concludes that the proposed action (or the action implemented in
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`conjunction with actions described in the RPA) will cause incidental taking of protected species,
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`but that despite this taking, the action will not jeopardize the species or threaten critical habitat,
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`the wildlife agency
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`2 Generally, FWS has jurisdiction over species of fish that either (1) spend the major portion of
`their life in fresh water, or (2) spend part of their lives in estuarine waters, if the remaining time is
`spent in fresh water. See Cal. State Grange v. Nat’l Marine Fisheries Serv., 620 F. Supp. 2d
`1111, 1120 n.1 (E.D. Cal. 2008), as corrected (Oct. 31, 2008). NMFS is granted jurisdiction over
`fish species that (1) spend the major portion of their life in ocean water, or (2) spend part of their
`lives in estuarine waters, if the remaining portion is spent in ocean water. Id. FWS exercises
`jurisdiction over the delta smelt; NMFS exercises jurisdiction over the winter-run and spring-run
`and the CCV steelhead.
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`shall provide the Federal agency and the applicant concerned, if any
`with a written statement that—
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`(i) specifies the impact of such incidental taking on the species,
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`(ii) specifies those reasonable and prudent measures that the
`Secretary considers necessary or appropriate to minimize such
`impact,
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`(iii) . . . , and
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`(iv) sets forth the terms and conditions (including, but not limited to,
`reporting requirements) that must be complied with by the Federal
`agency or applicant (if any), or both, to implement the measures
`specified under clauses (ii) and (iii).
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`Id. § 1536(b)(4). This required written statement, with its “reasonable and prudent measures”
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`“RPM” and associated terms and conditions, is referred to as an “Incidental Take Statement”
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`(ITS), which, if followed, exempts the action agency from the prohibition on takings found in
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`Section 9 of the ESA. Id. § 1536(o); Aluminum Co. of Am. v. Adm’r, Bonneville Power Admin.,
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`175 F.3d 1156, 1159 (9th Cir. 1999).
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`A.
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`The Central Valley Project and the State Water Project
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`FACTUAL BACKGROUND
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`The CVP and the SWP, “operated respectively by [Reclamation] and the State of
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`California, are perhaps the two largest and most important water projects in the United States.”
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`San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 592 (9th Cir. 2014) (San Luis v.
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`Jewell). “These combined projects supply water originating in northern California to more than
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`20,000,000 agricultural and domestic consumers in central and southern California.” Id. As one
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`part of CVP operations, Reclamation releases water stored in CVP reservoirs in northern
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`California, which then flows down the Sacramento River to the Delta. See id. at 594. Pumping
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`plants in the southern region of the Delta (South Delta) then divert the water to various users
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`south of the Delta. See id. at 594–95.
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`“Although the [Water] Projects provide substantial benefits to people and to state
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`agriculture, they arguably harm species native to the Delta by modifying those species’ natural
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`habitats.” San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 986 (9th Cir. 2014)
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`(San Luis v. Locke). This is because the Water Projects pump fresh water out of the “Old and
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`Middle River” (OMR) branches of the San Joaquin River in volumes sufficient to reverse the
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`flow in the OMR. Id. at 996. “Absent pumping, the rivers would flow north into the Delta.
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`Under pumping operations, the rivers flow south to the [CVP’s] Jones and [SWP’s] Banks
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`pumping plants.” Id. Listed species—particularly juveniles—are caught in the negative current
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`and drawn towards the pumping facilities. Id. Some of these fish are “salvaged” at the pumps,
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`“meaning they are diverted from the fatal pumping plants to fish salvage facilities and into tanks
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`where they are counted, measured, loaded into trucks, driven north, and dumped back into the
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`Delta.” Id. But even if salvaged, fish that are drawn towards the pumps by the “negative OMR”
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`flow have a lower likelihood of surviving outmigration than their counterpoints that avoid
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`“entrainment”3 by Water Project operations. Id.
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`The Delta smelt (Hypomesus transpacificus) is a “small, two-to-three inch species of fish
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`endemic to the [Delta].” San Luis v. Jewell, 757 F.3d at 595. In 1993, FWS concluded the delta
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`smelt’s population had declined by ninety percent over the previous twenty years and listed it as a
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`“threatened” species under the ESA. Determination of Threatened Status for the Delta Smelt, 58
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`Fed. Reg. 12,854, 12,855–56 (Mar. 5, 1993). FWS further determined that “Delta water
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`diversions,” including those resulting from operations of the CVP and SWP, are a significant
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`“synergistic cause[ ]” of the decline in the delta smelt population. Id. at 12,859.
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`Longfin smelt (Spirinchus thaleichthys) “range from the fresh waters of the Delta during
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`their spawning season from January through March down to the coastal waters outside the Golden
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`Gate.” (CNRA, Doc. No. 55, Declaration of Bruce Herbold (Herbold Decl.) at ¶ 31.) Longfin
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`smelt “generally live for two years and have almost always been more abundant than Delta
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`Smelt.” (Id.) Nonetheless, Longfin smelt populations “have been in severe decline since the
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`drought of the mid-1980s.” (Id. at ¶ 32.) Longfin smelt are listed under CESA but not the ESA.
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`(See id. at ¶ 19.)
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`3 As the court in San Luis v. Locke roughly described “[a] fish is ‘entrained’ when it follows
`diverted water rather than the natural course of a river, stream, pond, or lake. The danger with
`entrainment is that fish can become stranded in irrigation canals or killed when they are trapped
`in pumps.” 776 F.3d at 996.
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`Case 1:20-cv-00426-DAD-EPG Document 106 Filed 05/11/20 Page 10 of 36
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`The winter-run and spring-run (Oncorhynchus tshawytscha), and CCV steelhead
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`(Oncorhynchus mykiss), are “anadromous” fish, meaning that they live most of their lives in salt
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`water, but “are born, mature, lay eggs, and often die in inland freshwater lakes and rivers.” San
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`Luis v. Locke, 776 F.3d 986–87.
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`After they grow from fry (baby fish) to smolts (juvenile fish) in fresh
`water, anadromous salmon outmigrate through rivers and deltas into
`the oceans and seas where they will spend most of their adult lives.
`When it is time to reproduce, these salmon migrate back through the
`deltas to the rivers and lakes in which they were born to lay eggs.
`During this migration, salmon must pass impediments in inland
`rivers such as locks, dams, channels, and pumps.
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`Id. at 987. Notable for purposes of the pending motions, NMFS divides CCV steelhead into three
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`“diversity groups” for management purposes: the basalt and porous lava diversity group, the
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`northern Sierra Nevada diversity group, and the southern Sierra Nevada diversity group. (See
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`PCFFA, Doc. No. 85-2 (2019 NMFS BiOp) at 769.)
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`Because the remainder of the discussion in this Order focuses on impacts to CCV
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`steelhead, the court will briefly review only the development of regulatory regimes designed to
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`protect the listed salmonid species in the region impacted by the Water Projects, and will largely
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`skip over the roughly parallel developments related to the smelt species.
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`B.
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`2004 Operations and Criteria Plan & Resulting BiOps
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`On June 30, 2004, Reclamation prepared an operational plan, dubbed the “Operations
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`Criteria and Plan” (OCAP), to provide, among other things, a basis for renewing various long-
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`term water contracts. NRDC v. Jewell, 749 F.3d at 780. Pursuant to Section 7, Reclamation
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`initiated consultation with NMFS over the impact of the 2004 OCAP on listed species under
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`NMFS’s jurisdiction. NMFS issued an initial “no jeopardy” BiOp in October 2004. (See 2019
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`NMFS BiOp at 10 (describing consultation history).) That BiOp became the subject of numerous
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`lawsuits, ultimately resulting in a finding that the October 2004 no jeopardy BiOp was unlawful.
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`Pac. Coast Fed’n of Fishermen’s Ass’n v. Gutierrez, 606 F. Supp. 2d 1122 (E.D. Cal. 2008)
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`(PCFFA v. Gutierrez).
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`Starting in 2006, NMFS and Reclamation engaged in renewed consultation. See San Luis
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`v. Locke, 776 F.3d at 988. On June 4, 2009, NMFS issued, and Reclamation accepted, a BiOp
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`Case 1:20-cv-00426-DAD-EPG Document 106 Filed 05/11/20 Page 11 of 36
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`that concluded that “the long-term operations of the CVP and SWP are likely to jeopardize the
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`continued existence” of and “destroy or adversely modify” critical habitat for winter-run, spring-
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`run, and CCV steelhead. (See PCFFA, Doc. No. 85-18 (2009 NMFS BiOp) at 575.) As required
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`by law, the BiOp included an RPA designed to allow the projects to continue operating without
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`causing jeopardy to the species or adverse modification to its critical habitat. (Id. at 575–671.)
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`The RPA was “composed of numerous elements for each of the various project divisions and
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`associated stressors” which, according to the BiOp, “must be implemented in its entirety to avoid
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`jeopardy and adverse modification.” (Id. at 578.) The 2009 NMFS BiOp provided a succinct
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`overview of the RPA, pertinent parts of which provide helpful background here:
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`There are several ways in which water operations adversely affect
`listed species that are addressed in this RPA. We summarize the
`most significant here:
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`***
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`The effects analysis [in the 2009 NMFS BiOp] shows that juvenile
`steelhead migrating out from the San Joaquin River Basin have a
`particularly high rate of loss due to both project and non-project
`related stressors. The RPA mandates additional measures to improve
`survival of San Joaquin steelhead smolts, including both increased
`San Joaquin River flows and export curtailments. Given the
`uncertainty of the relationship between flow and exports, the RPA
`also prescribes a significant new study of acoustic tagged fish in the
`San Joaquin Basin to evaluate the effectiveness of the RPA and refine
`it over the lifetime of the project.
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`***
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`On the Stanislaus River, project operations have led to significant
`degradation of floodplain and rearing habitat for steelhead. Low
`flows also distort cues associated with out-migration. The RPA
`proposes a year-round flow regime necessary to minimize project
`effects to each life-stage of steelhead, including new spring flows
`that will support rearing habitat formation and inundation, and will
`create pulses that cue out-migration.
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`(Id. at 576–78.)
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`Both the 2009 NMFS BiOp and a parallel 2008 FWS BiOp addressing impacts to Delta
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`smelt were subject to legal challenges but were ultimately upheld by the Ninth Circuit. San Luis
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`v. Jewell, 747 F.3d 581; San Luis v. Locke, 776 F.3d 971.
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`Reconsultation Request & Issuance of New BiOps & NEPA Document
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`In 2016, after years of drought and concerns over extremely low population numbers of
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`winter-run, FWS and NMFS reinitiated consultation under the ESA. (PCFFA, FAC at ¶ 6; see
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`also PCFFA, Doc. No. 86-4 (8/2/16 reinitiation request letter from NMFS to Reclamation).) In
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`January 2019, Reclamation issued a biological assessment (BA)4 for the Proposed Action. (See
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`2019 NMFS BiOp at 12.) Pursuant to the ESA, Reclamation again consulted with FWS and
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`NMFS. (See id.)
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`In July 2019, NMFS prepared a draft BiOp in which the agency concluded that, absent
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`constraints, the Reclamation’s proposed plan as set forth in the January 2019 BA was likely to
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`jeopardize the continued existence of and destroy or adversely modify the critical habitat of the
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`listed salmonid species. (PCFFA, Doc. No. 85-13 (NMFS July 2019 Draft BiOp).) Thereafter,
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`Reclamation and DWR incorporated changes to the proposed plan, including additional
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`commitments to address impacts to listed species. (See 2019 NMFS BiOp at 12–14.)
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`A few months later, however, on October 21, 2019, Reclamation issued a revised, Final
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`BA describing a revised operating plan for the Water Projects (PCFFA, Doc. No. 85-12 (BA)),
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`which constituted the final Proposed Action. On the same day, NMFS issued a BiOp that
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`concluded Reclamation’s revised proposed plan was not likely to jeopardize the existence of
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`winter-run and spring-run salmon and Central Valley steelhead beyond that permitted under its
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`2009 opinion. (See generally 2019 NMFS BiOp.) Following a very similar consultation
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`pathway, FWS issued an opinion that Reclamation’s proposed plan was not likely to jeopardize
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`the continued existence of the Delta smelt or modify its habitat. (PCFFA, Doc. No. 85-1 (2019
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`4 Under the ESA, an agency proposing to take an action (often referred to as the “action agency”)
`must first inquire of FWS and/or NMFS whether any threatened or endangered species “may be
`present” in the area of the proposed action. See 16 U.S.C. § 1536(c)(1). If endangered species
`may be present, the action agency may prepare a BA to determine whether such species “is likely
`to be affected” by the action. Id.; 50 C.F.R. § 402.12(b). “An agency may avoid the consultation
`requirement only if it determines that its action will have ‘no effect’ on a listed species or critical
`habitat.” Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1027 (9th Cir. 2012) (en banc)
`(internal citation omitted). If the BA determines that a threatened or endangered species is “likely
`to be affected,” the agency must formally consult with FWS and/or NMFS. See 16 U.S.C.
`§ 1536(a)(2); 50 C.F.R. 402.14.
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`Case 1:20-cv-00426-DAD-EPG Document 106 Filed 05/11/20 Page 13 of 36
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`FWS BiOp).) Having found no jeopardy, the BiOps imposed no additional protective conditions
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`on the Proposed Action, which was allowed to proceed as described in Reclamation’s Final BA.5
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`On February 18, 2020, Reclamation issued its Record of Decision on the Coordinated Long-Term
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`Operation of the Central Valley Project and State Water Project (ROD), thereby approving the
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`Proposed Action. (PCFFA, Doc. No. 85-14 (ROD)).
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`These lawsuits followed close on the heels of the issuance of the challenged BiOps and
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`ROD.
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`DISCUSSION
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`As the court explained at the May 7, 2020 hearing, it has divided its evaluation of the
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`pending motions a