September 20, 2011

2009 salmonid biop found to be unlawful

By 2009 salmonid biop found to be unlawful

Author: Brandon Middleton

Judge Wanger issued this decision today, which contains the following conclusion:

For all the reasons set forth above:

(A) Plaintiffs‘ and DWR‘s motions for summary judgment that the BiOp violates the ESA and the APA are GRANTED IN PART AND DENIED IN PART; and Federal Defendants‘ and Defendant-Intervenors‘ cross motions are GRANTED IN PART AND DENIED IN PART based on the following findings:

(1) It was clear error and inconsistent with standard practice in the field of fisheries biology for Federal Defendants to rely upon the raw salvage analyses set forth in Figures 6-65 and 6-66 to reach conclusions about the effect of specific levels of negative OMR flows on the Listed Species. None of the alternative record citations or analyses cited by Defendants, including the PTM Modeling Results, or Figures 6-71, 6-72, or 6-73, provide sufficient alternative bases for NMFS‘s conclusions regarding the negative OMR flows below which loss of juvenile salmonids increases sharply.

(2) Federal Defendants‘ reliance on Figure 6-71 also suffers from the same unjustified use of raw salvage data. Federal Defendants must clarify on remand whether it is possible to scale the CV steelhead data used in Figures 6-72 and 6-73 to population size and, if not, why unscaled analyses are nevertheless useful. Federal Defendants must also further explain and/or refine the statistical methodologies used to develop these figures.

(3) Federal Defendants‘ did not act unlawfully in failing to apply either of the two suggested life-cycle models (IOS and/or OBAN) or other mathematical models, such as the Ricker or Beverton-Holt models, to evaluate project impacts on the Listed Species. However, NMFS‘s chronic and unsatisfactorily explained failure to avoid studying, analyzing, and applying a life cycle model approaches bad faith in light of all experts‘ opinions it can be done in far less than the five years the agency has been pleading lack of ability and resources, and in view of the undeniable importance of the information to resolve the perennial dispute over population dynamics.

(4) NMFS did not act unlawfully by failing to segregate discretionary from non-discretionary actions in evaluating the environmental baseline. Although such a delineation could better document the relationship between the requirements of the species and the action agency‘s statutory authority to implement the RPA, NMFS disclaims the capacity to undertake appropriate modeling and related analysis and Plaintiffs have failed to demonstrate that NMFS‘s claim is unreasonable or false.

(5) Although it is inexplicable that these species are being managed in a piecemeal fashion, without considering all aspects of their life cycles, including impacts to abundance from ocean conditions and ocean harvest, the ESA does not require a quantitative, causative analysis of the relative importance of these non-Project impacts vis-à-vis Project effects.

(6) NMFS did not act unlawfully by employing a 100-year timeframe for its analysis of extinction risk.

(7) Certain aspects of NMFS‘s winter-run viability analysis are clearly erroneous as identified above and must be corrected on remand.

(8) In view of the inconsistency, the 2009 Salmonid BiOp must explain on remand how its conclusions are consistent with the Orca Salmon Harvest BiOp.

(9) Although the BiOp contains some (uncontested) support for a connection between Project operations and the presence of exotic species, the BiOp is remanded for further explanation of how this relates to indirect mortality of the Listed Species.

(10) The record does not support the BiOp‘s conclusions about the connection between Project operations on the one hand and pollution and/or food limitations on the other. This is not the best available science.

(11) NMFS is not required to set a numeric threshold for adverse modification of critical habitat. The record supports the BiOp‘s conclusion that Project operations will have appreciable negative effects on the Listed Species‘ critical habitat.

(12) NMFS‘s use of surrogates was not unlawful.

(13) The record provides some, albeit equivocal, evidence to support the imposition of some form of flow:export ratio as part of Action IV.2.1. In a world of sound science, a questionable judgment that has significant adverse consequences for the water supply would not drive the formulation of an RPA. However, this is a scientific dispute between the State and water users' scientists on the one side and federal scientists on the other. Administrative law permits the agency to make mistakes, and the ESA requires such disputes be resolved in the species‘ favor. This is Congress' choice.

(14) However, the BiOp does not clearly explain the rationale for imposing a 4:1 ratio in above normal and wet years. Particularly in light of the potential adverse consequences of imposing such a ratio, this is unlawful. Full explanation on remand is required.

(15) Likewise, although there is marginal record support for the imposition of some form of OMR flow restriction, Action IV.2.3 must be remanded for further explanation of the necessity for the specific flow prescriptions imposed, which are derived primarily from PTM simulations, a method that is undisputedly an imperfect, if not incompetent, predictor of salmon behavior.

(16) Action IV.3 suffers from a similar defect. Although there is record support for some form of action designed to prevent large numbers of fish from being killed or harmed at the export facilities, lawful explanation is required to justify the specific triggers imposed by Action IV.3.

(17) As to Export Plaintiffs‘ and DWR‘s argument that the RPA fails to satisfy the four requirements of 50 C.F.R. § 402.02:

(a) Federal Defendants failed to sufficiently explain whether the RPA can be implemented consistent with the co-equal, non-environmental statutory purposes of the action.

(b) Although the CVPIA does not grant NMFS unlimited power to take whatever Project water it deems essential for the species, under D-1641, lawful RPA‘s can (and must) be implemented in a manner consistent with the legal authority and jurisdiction of Reclamation and DWR.

(c) The BiOp reasonably concluded that the RPA is economically feasible for the action agency to implement. Only the costs to the action agency are relevant; economic burdens upon third parties cannot be considered under TVA v. Hill.

(d) The fourth § 402.02 requirement demands that an RPA avoid jeopardy and/or adverse modification. Consistent with and incorporating the rulings on the merits of the challenges to RPA Actions IV.2.1, IV.2.3 and IV.3, while there is anecdotal evidence for some of the general approaches used in these RPA Actions, the specific prescriptions imposed are not sufficiently justified or explained. NMFS acted arbitrarily and capriciously in concluding that Actions IV.2.1, IV.2.3 and IV.3 are essential to avoid jeopardy and/or adverse modification.

(18) Regarding DWR‘s related challenges to Action IV.4.2:

(a) Action IV.4.2 is not inconsistent with Action IV.4, and is not unlawful in that respect.

(b) The record lacks affirmative support for findings that either Action IV.4.2(1) or Action IV.4.2(2) are feasible.

(c) The record fails to explain why the measures imposed by Action IV.4.2 are essential to avoid jeopardy and/or adverse modification.

(B) Stanislaus River Plaintiffs' motion for summary judgment that the BiOp violates the ESA and the APA is GRANTED IN PART AND DENIED IN PART; and Federal Defendants' and Defendant-Intervenors' cross motions are GRANTED IN PART AND DENIED IN PART based on the following findings:

(1) It was not unlawful for NMFS to include the New Melones unit in the action under consideration.

(2) NMFS did not act unlawfully by failing to distinguish between baseline effects and effects of the action.

(3) As to SR Plaintiffs‘ challenges to the adverse modification findings related to New Melones:

(a) The BiOp‘s use of a ?maximization? benchmark in connection with its analysis of spawnable area is without support in the record.

(b) The BiOp‘s finding that New Melones operations affect gravel recruitment is without support in the record.

(c) The record adequately supports the BiOp‘s findings regarding New Melones‘ effects on temperature conditions in spawning habitat and on downstream migration corridors.

(4) As to SR Plaintiffs‘ challenges to the New Melones RPA Actions:

(a) The BiOp does not reasonably or sufficiently explain its decision to set a ?maximum habitat goal,? which underlies its decision to use certain assumptions to model RPA actions.

(b) The Stanislaus River RPA Actions do not improperly require Reclamation to infringe on OID and SSJID‘s prior rights to Stanislaus River water.

(c) Federal Defendants did not act unlawfully by failing to utilize the San Joaquin River Water Temperature Model.

(d) The limitations of the exceptions built into Action III.1.2 must be defined on remand to explain how often the exception can be triggered without rendering the Action ineffectual.

(e) The record and best available science do not support Action II.1.3's 5,000 cfs spring pulse flow.

(f) In calculating the flows CV Steelhead need for outmigration, NMFS relied on a CDFG model used to determine flows needed to double salmon in the San Joaquin River. While it was not inappropriate for NMFS to use a model employing salmon as a surrogate for CV Steelhead, nothing in the record explains why it is appropriate to use a model designed to double the existing salmon population to set numeric flow targets to avoid jeopardy to the CV steelhead. This is arbitrary and capricious and must be fully explained on remand. In addition, NMFS must address the fact that the BiOp unreasonably relied upon runs from an outdated version of the model.

(g) SR Plaintiffs‘ argument that the Stanislaus River RPAs were unlawful because they constituted ?impermissible major changes? to the New Melones Project is without merit, as this requirement applies to ?reasonable and prudent measures,? none of which were applied to the Stanislaus River.

(h) As to SR Plaintiffs‘ challenges to the BiOp‘s feasibility analyses of the Stanislaus River RPA Actions:

(1) The feasibility modeling did not employ erroneous assumptions.

(2) Action III.1.2‘s exception procedure is so broad that it renders any feasibility analysis wholly unreliable and arbitrary. It is unlawful as formulated.

(3) The feasibility of Action III.2.2 cannot be evaluated because the RPA has yet to be defined. This is not a valid RPA. Federal Defendants must ensure that any Action defined in the future complies with the requirements of law. SR Plaintiffs‘ challenge to this feasibility analysis is correct to the extent there is not a validly formulated RPA Action.

(i) SR Plaintiffs‘ challenge to Action III.2.2 as inconsistent with the flood control purposes of the New Melones Project is valid, as that Action has yet to be defined and is not yet a valid RPA.

(j) SR Plaintiffs‘ have not demonstrated that the pulse flows called for in Action III.1.3, designed to be of short duration to limit seepage impacts to nearby landowners, conflict with the flood control purpose of the New Melones Project.

(k) SR Plaintiffs‘ have failed to meet their burden to demonstrate that the Stanislaus River RPAs violate Article X, Section 2 of the California Constitution.

(C) All Plaintiffs‘ motions for summary judgment that Reclamation violated the ESA and/or the APA are DENIED; Federal Defendant and Defendant-Intervenors‘ cross motions are GRANTED.

It is undisputed that the law entitles the winter-run and spring-run Chinook, CV steelhead, Southern DPS of green sturgeon, and Southern Resident killer whales to ESA protection. Plaintiffs have succeeded on some of their challenges to the BiOp‘s justifications and analyses of Delta and Stanislaus River operations. The BiOp discusses and prescribes RPAs to address many other sources of harm, including adverse temperature conditions and blockages caused by dams on the Sacramento River. The BiOp‘s jeopardy conclusion is lawful. Project operations negatively impact the Listed Species and adversely modify their critical habitat in various ways that remain incompletely described and quantified.

Some of NMFS‘s analyses rely upon equivocal or bad science to impose RPA Actions without clearly explaining or otherwise demonstrating why the specific measures imposed are essential to avoid jeopardy and/or adverse modification. Given the potential serious impacts of these measures, the agency must do more to comply with the law.

The 2009 Salmonid BiOp and its RPA are ARBITRARY, CAPRICIOUS, and UNLAWFUL, and are REMANDED to NMFS for further consideration in accordance with this decision and the requirements of law.

Plaintiffs shall submit a form of order consistent with this memorandum decision within five (5) days of electronic service.

Within five (5) days of service of this decision, Federal Defendants shall provide a proposed date by which they shall file the new BiOp and any RPA.

What to read next