May 28, 2010

Favorable ruling in the Delta smelt case

By Favorable ruling in the Delta smelt case

Author:  Damien M. Schiff

Yesterday evening, the court issued its ruling on the preliminary injunction motion filed in the Delta smelt consolidated cases.  Below is a quick resume of the decision.  Bottom line, however, is that the cutbacks are illegal, but the court is not yet prepared to order immediate relief.

1. The baseline issue.  To determine whether a proposed action will jeopardize the continued existence of a listed species, the Fish and Wildlife Service must identify the environmental baseline, i.e., the way the world looks without the project.  Once that's been determined, the Service can then analyze the effects of the project.  In the Delta smelt cases, the plaintiffs argued that the Service misused computer modelling programs to determine what the Sacramento Delta would look like without the water projects operating.  On this argument, Judge Wanger sided in favor of the defendants.

"This highly technical dispute was not raised before the agency, and there were legitimate concerns about comparing Calsim modeling runs to other Calsim runs.  This choice of competing methodologies is not sufficiently clear error to justify the court's intervention.

2. Other stressors.  The plaintiffs also argued that the Service failed to take into account the effects of other Delta smelt stressors, and thus unfairly saddled the water projects with the responsibility of mitigating for harms not caused by the projects.  Judge Wanger was sympathetic.

Although the BiOp acknowledges that "not all" of the multiple factors negatively impacting the species "are directly influenced" by Project operations, the general assertion in the BiOp that other stressors are the result of (or at least exacerbated by) Project operations is not supported by the record.  This error compounds the agency's failure to address alternative approaches to avoiding jeopardy, including whether other stressors can be mitigated or eliminated . . . .

Nevertheless, the court rejected the argument that the water projects should be entirely off the hook because other causes for the smelt's decline can be indentified.

It is undisputed that uncertainty surrounding the measurement of the other stressors makes it difficult (if not impossible) to separate those effects from the effects of joint Project operations.  Even if it were possible to separate the quantitative effect of the other stressors, whcih are part of the environmental baseline, the ESA does not require that FWS quantify and/or parcel out the "proportional share" of harms among the baseline and proposed action.

But, the court was conscious of the larger picture, and seemed to give the plaintiffs some hope for relief on this point.

It is inequitable to put the entire burden of the stressors on the water supply.  However, this decision goes beyond the science to implicate the Executive's (Department of Interior) allocation of resources.  A court lacks authority to interfere with such a policy choice by a coordinate branch of government.

Whether the foregoing means that the water projects are in fact responsible for mitigating harm attributable to others, or just the harm caused by the projects themselves, is not entirely clear.

3. Gross salvage.  The Service devised the pumping restrictions based upon the number of smelt collected each year at the pumps.  The plaintiffs challenged that approach, arguing that what matters is not how many individual smelt are taken, but rather the percentage of smelt that are taken.  The court agreed.

FWS did not explain its decision in the BiOp to use gross salvage numbers . . . , and did not explain why it selectively used normalized salvage data in some parts of the BiOp but not in others. [P]  FWS presented no credibele, scientifically based explanation for the decision to use gross salvage numbers instead of normalized salvage data . . . , either in the BiOp or at the hearing.  Other than endeavoring to structure a result, there is no explanation for this departure from best available science.  This raises the spectre of bad faith.

Nevertheless, the court affirmed the Service's conclusion that there is at least some connection between smelt population dynamics and the water projects.  ("It was not unreasonable for FWS to conclude that salvage events may be 'sporadically significant.'").

4. Adverse modification of critical habitat and indirect harm.  The government had argued that even if the Service's analysis of the water projects' direct impacts on smelt was bad, the water cutbacks could still be upheld on the basis of the projects' indirect effects on the smelt, as well as their effects on smelt habitat.  The court rejected that defense, concluding that the biological opinion's analysis of habitat and indirect effects still traced back to the bad direct effects data.

5. Population dynamics model.  One of the chief arguments of the plaintiffs was the Service's failure to use a population dynamics model to gauge the effect of the water cutbacks on the smelt.  The court noted that all the experts agreed that such a model would be desirable, but the court also noted that no such model was in existence when the Service issued the biological opinion.

The use of a quantitative life cycle model is the preferred scientific methodology.  FWS made a conscious choice not to use expertise available within the agency to develop one, nor did it explain why it did not.  However, a completed life-cycle model was not available for FWS's use prior to the issuance of the BiOp, and the Court does not have the authority to require the agency to create one.

6. Relief?  The court made clear that it found the current water cutbacks to be arbitrary and capricious.  Nevertheless, the court was reluctant to order the plaintiffs' remedy for fear of inadequate evidence that the smelt could withstand that remedy.

Although the record shows that FWS's -5,000 OMR ceiling is not based on the best available science, the record does not contain sufficient information to conclude that the imposition of Plaintiff's suggested -5,000 OMR ceiling would be sufficiently protective of the smelt, particularly in light of the fact that Plaintiffs do not propose any flexibility in the management regime that would permit greater restrictions if a large salvage event was approaching or ongoing.

So bottom line is that more water will flow if but only if the court is convinced that the additional water will not harm the smelt.  A hearing has been scheduled for today to begin that evidentiary process.

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