May 18, 2010

Federal court: California water cutbacks for endangered species not scientifically justified

By Federal court: California water cutbacks for endangered species not scientifically justified

Author: Brandon Middleton

In an important victory for victims of California's regulatory drought, a federal court has ruled that water restrictions meant to protect endangered salmon and other species are based on flawed science.  Given that the federal government has "completely abdicated" its responsibility to use the best available science and minimize harms to human beings, Judge Wanger has ordered an injunction of the NMFS salmon biological opinion.  There were will be a hearing tomorrow to decide the exact form of injunctive relief.

The decision, issued this morning, is available
here.  More thoughts to come later.  Here is the court's conclusion:

VII. CONCLUSION

1. Plaintiffs have succeeded on the merits of their NEPA claim.

a. NEPA requires that the responsible agency take a hard look at the environmental consequences of its actions, Robertson v. Methow Valley Citizen’s Counsel, 490 U.S. 332, 350 (1989), obligating federal agencies to prepare an environmental impact statement (“EIS”) for all “major federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C).

b. Federal Defendants are required to evaluate the impact of the coordinated operations of the CVP and SWP, which constitutes major federal action. The evidence overwhelmingly establishes significant detrimental effects visited on the quality of the human environment by implementation of the BiOp’s RPA Actions, which impose virtually year-round substantial restrictions on the water supply to California to protect the Listed Species.

c. Where required, an EIS discloses environmental affects of a proposed action and considers alternative courses of action. Id. Here, Federal Defendants completely abdicated their responsibility to consider alternative remedies in formulating RPA Actions that would not only protect the species, but would also minimize the adverse impact on humans and the human environment. In considering RPA alternatives, the record hows the burden of other causes is allocated to the water supply, without the required analysis whether alternatives, less harmful to humans and the human environment, exist.

2. Plaintiffs have also shown a likelihood of success on the merits of their ESA claim. Although the premise underlying the RPA Actions — that the species may be jeopardized by increased negative flows occasioned by export pumping — has some record support, NMFS has failed to adequately justify by generally recognized scientific principles the precise flow prescriptions imposed by RPA Actions IV.2.1 and IV.2.3. The exact restrictions imposed, which are inflicting material harm to humans and the human environment, are not supported by the record. Rather, they are product of guesstimations and attempts to try to achieve “equity,” rendering it impossible to determine whether the RPA Actions are adequately protective, too protective, or not protective enough. Judicial deference is not owed to such arbitrary, capricious, and scientifically unreasonable agency action.

3. It is highly significant that the co-operator of the Projects, DWR, with access to scientific competence in the fields of fish biology and ecology, and project operations, strongly criticizes some of the science NMFS used to justify RPA Action IV.2.3, seeks to enjoin Action IV.2.3, and does not oppose enjoining Action IV.2.1

4. Under the balance of hardships analysis, Defendants’ contention that the ESA, under TVA v. Hill, precludes equitable weighing of Plaintiffs’ interests is not supported by that case, as evidence of harm to the human environment in the form of social dislocation, unemployment, and other threats to human welfare were not present in Hill. They are in this case.

5. Defendants argue that jeopardy to the species cannot be avoided without continuing substantial reduction of pumping, with resultant reduction of water supply to Plaintiffs, representing over 20,000,000 persons, affected communities, and the agricultural industry in Northern, Central, and Southern California. Harm to the species has had equally detrimental effects on the Pacific Coast salmon fishing industry and impairs the interests of Native Americans. These additional harms are deserving of equal protection.

6. Congress created public expectations in the Amended Reclamation Act by instructing Reclamation to contract for water service to hundreds of public-entity water service providers that supply water to millions of people and thousands of acres of productive agricultural land. The agencies have not fully discharged their responsibility to effectively allocate Project water resources. Federal Defendants have acted arbitrarily and capriciously in formulating RPA Actions to protect threatened species under the ESA that lack factual and scientific justification, while effectively ignoring the irreparable harm those RPA Actions have inflicted on humans and the human environment.

7. The species and their critical habitats are entitled to protection under the ESA. The species have been and will be protected. That is the law. Nonetheless, NMFS and Reclamation, as the consulting and action agencies, must take the hard look under NEPA at the draconian consequences visited upon Plaintiffs, the water supply of California, the agricultural industry, and the residents and communities devastated by the water supply limitations imposed by the RPA Actions. Federal Defendants have failed to comprehensively and competently evaluate whether RPA alternatives can be prescribed that will be mutually protective of all the statutory purposes of the Projects.

8. This is a case of first impression. The stakes are high, the harms to the affected human communities great, and the injuries unacceptable if they can be mitigated. NMFS and Reclamation have not complied with NEPA. This prevented in-depth analysis of the potential RPA Actions through a properly focused study to identify and select alternative remedial measures that minimize jeopardy to affected humans and their communities, as well as protecting the threatened species. No party has suggested that humans and their environment are less deserving of protection than the species. Until Defendant Agencies have complied with the law, some injunctive relief pending NEPA compliance is appropriate, so long as it will not further jeopardize the species or their habitat.

9. Injunctive relief is also warranted under the ESA, because, although the general premises underlying Actions IV.2.1 and IV.2.3 find marginal support in the record, the precise flow prescriptions imposed on coordinated project operations as part of Action IV.2.1’s Vernalis flow/export ratio and Action IV.2.3’s -5,000 cfs “calendar based” ceiling are not supported by the best available science and are not explained as the law requires.

10. Injunctive relief cannot be imposed without upto-date evidence of the status of the species to assure that altered operations will not deepen jeopardy to the affected species or otherwise violate other laws. The evidence has not sufficiently focused on remedies to provide a confidence level that completely removing the Vernalis flow to export ratio prescriptions of Action IV.2.1 or permitting negative flows in excess of the -5,000 cfs OMR flow ceiling imposed by Action IV.2.3 to increase water supply will not jeopardize the continued existence of the species and/or adversely modify their critical habitats.

11. Legal and equitable grounds for injunctive relief have otherwise been established by a preponderance of the evidence.

12. A hearing to address the proposed injunction and any imminence of harm to species shall be held May 19, 2010 in Courtroom 3 at 10:00 a.m.

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