August 31, 2011

U.S. Fish and Wildlife Service's delta smelt X2 action enjoined

By U.S. Fish and Wildlife Service's delta smelt X2 action enjoined

Author: Brandon Middleton

In a 140 page decision issued late this morning, Judge Wanger enjoined the United States Fish and Wildlife Service's implementation of the agency's Fall X2 action.  The decision may be found here.

In a nutshell, this means the government will not be able to restrict water deliveries as much as it wants to over the next couple of months.  I will have more thoughts on the decision later today, but for now here is the court's 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). This has not been done.

(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 establishes significant detrimental effects visited on the quality of the human environment by implementation of the BiOp?s RPA Actions, which impose substantialrestrictions on the water supply to California, solely to protect the delta smelt.

(c) Where required, an EIS is intended to disclose environmental effects of a proposed action and consider alternative courses of action. Id. Here, by erroneously by-passing NEPA, Federal Defendants completely abdicated their responsibility to consider reasonable alternatives to the Fall X2 Action that would not only protect the species, but would also minimize the adverse impact on humans and the human environment. The result is the issuance and implementation of a one-sided, single purpose RPA that inflicts drastic consequences on California water users, a situation NEPA prohibits.

2. Plaintiffs have also succeeded in part on the merits of their ESA challenge to the Fall X2 Action. This required de novo review of the available evidence to determine if equity permits injunctive relief:

(a) Plaintiffs have established the likelihood of irreparable harm. Imposition of the Fall X2 Action as it is currently planned will likely cause a negative 300,000 AF water supply impact to SWP contractors. This will impact long-term water supply reliability for both domestic and agricultural users. There will be further impacts to groundwater recharge programs, with resulting direct environmental impacts to groundwater levels, groundwater quality, and energy use. Water supply reductions will cause economic impacts to farmers and may have socioeconomic impacts on agricultural communities, although the magnitude of any such economic and/or socioeconomic impacts given the “very good” water year in 2011 is unclear.

(b) The scientific evidence in support of imposing any Fall X2 action is manifestly equivocal. There is essentially no biological evidence to support the necessity of the specific 74 km requirement set to be triggered in this “wet” water year. The agencies still “don?t get it.” They continue to believe their “right to be mistaken” excuses precise and competent scientific analysis for actions they know will wreak havoc on California?s water supply.

(c) In balancing hardships, the record arguably supports a requirement that X2 not be allowed to shift east of the confluence of the Sacramento San Joaquin Rivers. Positioning X2 at 80 km or 79 km accomplishes this goal. It also serves the population data collection objective of the Action?s adaptive management plan. The competing balance is the continuing imperiled status of the protected species, which counsels against doing nothing at all.

(d) Limiting the Fall X2 Action will significantly reduce the water supply impact. Positioning X2 at kilometer 79 will have a probable water supply impact of 90,000 AF, reducing the impact by 210,000 AF. Positioning X2 at kilometer 80 would equate to a probable water supply impact of 80,000 AF, reducing the impact by 220,000 AF in most water year types.

(e) Balancing the imperiled status of the species, the equivocal and highly disputed support for the X2 action, and the even weaker and unjustified support for positioning X2 at 74 km, against the substantial and damaging water supply impact of doing so, limiting the X2 position to 80 km or 79 km achieves equity. Between these two targets, assuming the truth of Federal Defendants? scientific theories, positioning X2 at 79 km will provide substantial additional protection above and beyond an 80 km X2 for a relatively insignificant additional water cost of 10,000 AF. This is only 5 km further upstream than the BiOp's wet year requirements, yet imposes a far less draconian water supply cost.

The BiOp's Fall X2 Action shall be enjoined to prevent implementation of the 74 km X2 target. No Fall X2 action setting the X2 target west of 79 km shall be implemented. All other requirements of the Action, including the timing of the Action and the mechanisms for its measurement, shall remain unchanged.

Plaintiffs shall submit a form of injunction consistent with these findings of fact and conclusions of law within five days following electronic service.

SO ORDERED Dated: August 31, 2011 /s/ Oliver W. Wanger United States District Judge

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