# Pacific Coast Federation of Fishermen's Associations v. Gutierrez

> District Court, E.D. California · July 18, 2008 · 606 F. Supp. 2d 1195

URL: https://www.frixlaw.com/law-library/cases/2157425

## Case

- **Full name:** PACIFIC COAST FEDERATION OF FISHERMEN’S ASSOCIATIONS, Institute for Fisheries Resources, Et Al., Plaintiffs, v. Carlos M. GUTIERREZ, in His Official Capacity as Secretary of Commerce, Et Al., Defendants, San Luis & Delta-Mendota Water Authority, Et Al., DefendantIntervenors
- **Court:** District Court, E.D. California
- **Decided:** July 18, 2008
- **Citations:** 606 F. Supp. 2d 1195; 68 ERC (BNA) 1234; 2008 U.S. Dist. LEXIS 75944; 2008 WL 6124803
- **Precedential status:** Published
- **Opinion:** Opinion by Wanger
- **Judges:** Oliver W. Wanger
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2157425

## How later opinions describe it (automated extraction)

- holding that “[a]ny interim remedial prescriptions must (1
- noting *1033 “[district courts in other circuits have, in an abundance of caution, applied the traditional approach to injunctive relief, while at the same time recognizing the balancing of the equities and the determination of the public interest already performed by Congress”
- noting that "the approach taken ... identifies ‘irreparable harm’ as ‘significant’ vis-a-vis the overall population”
- noting that during periods of interim relief in ESA context “only ‘non jeopardizing’ actions may continue”

## Opinion text

FINDINGS OF FACT AND CONCLUSIONS OF LAW RE THE EXISTENCE OF IRREPARABLE HARM DURING THE INTERIM PERIOD AND DENYING PLAINTIFFS’ REQUESTS FOR EMERGENCY INTERIM REMEDIES REGARDING FLOWS ON CLEAR CREEK AND GATE OPERATIONS AT RED BLUFF DIVERSION DAM
OLIVER W. WANGER, District Judge.
*1197
TABLE OF CONTENTS
I. INTRODUCTION.........................................................1198
II.
CONCLUSIONS OF
LAW..................................................1199
A.
Jurisdiction
.........................................................1199
B.
Agencies’ General Obligations Under the ESA
..........................1199
C.
ESA § 7(a) Only Applies to Actions that Fall Within a Federal Agency’s Discretion
................................................1200
D.
Remand Without
Vacatur.............................................1202
E.
The Bureau’s 7(d) Obligations During Re-Consultation
.................1203
F.
Standard for Issuance of Preliminary Injunctive Relief In ESA
Cases.... 1203
(1)
Likelihood of Success on the Merits
................................1205
(2)
“Reasonable Likelihood” of Irreparable
Harm.......................1206
(a)
Injunctive Relief is Not
Automatic.............................1206
(b)
Likely Extirpation Is Not the
Standard.........................1207
(c)
Reduce Appreciably the Likelihood of Survival or Recovery I Appreciably Diminish the Value of Critical
Habitat....................................................1207
(3)
Burden
Shifting..................................................1210
(4)
Should Evaluation of “Significance” Occur at the ESU or Population
Level?..............................................1211
(5)
The Impacts of Project Operations Must be Evaluated in the Context of Baseline Conditions
..................................1212
(6)
Consideration of
Recovery.........................................1213
(7)
Economic Harm May Not Be Considered, But Public Safety is Relevant and Injunctive Relief Must Be Narrowly
Tailored----1213
(8)
Judicial
Non-intervention.........................................1214
(9)
FERC Jurisdiction: Feather River and Oroville
Dam................1215
III.
FINDINGS OF
FACT.....................................................1215
A.
Overview of Salmonid Life
History.....................................1215
(1)
Winter-Run Biology, Location and
Movement.......................1216
(2)
Spring-Run Biology, Location and
Movement.......................1217
(3)
Central Valley Steelhead Biology, Location and
Movement...........1217
B.
Current Status of the
Species..........................................1218
(1)
Overview
........................................................1218
(2) Winter-Run......................................................1219
(3) Spring-Run......................................................1221
(4) Steelhead........................................................1223
C.
Impacts ftom Non-Project Related (Baseline)
Conditions................1224
D.
Project-Related
Impacts..............................................1225
(1)
Overview of Project
Operations....................................1225
(2)
Shasta Reservoir!Sacramento River Operations
.....................1227
(a) Operations...................................................1227
(b) Winter-Run..................................................1229
(c) Spring-Run..................................................1230
(d) Steelhead....................................................1230
(e)
Worst Case
Scenario..........................................1230
(3)
Impacts of Red Bluff Diversion Dam
Operations.....................1231
(a)
Impacts to Up-Migrating Adults During Entire Closure Season (Currently May 15 through Sept.
15)...................1232
(i)
Overview of Impacts to Adult Salmonids During Entire Closure
Season........................................1232
(ii)
Impacts of RBDD to Spring-Run Adult Migration During Entire Closure
Season..........................1233
(iii)
Impacts of RBDD to Winter-Run Adult Migration During Entire Closure
Season..........................1234
*1198
(iv)
Impacts of RBDD to Steelhead Adult Migration During Entire Closure
/Season.................................1234
(b)
Emergency Request To Raise Gates Through July 15
............1234 (c)
Impacts to Juvenile Migration During Entire RBDD Closure
Season & Plaintiffs’ Request to Open RBDD August 1,
2008____1236
(4)
Predicted Impacts of Operations at Clear
Creek.....................1238
(5)
Feather River and Thermalito/Lake Oroville Complex
...............1240
(6)
Folsom Dam/American
River......................................1241
(7)
New Melones Reservoir/Stanislaus
River...........................1242
(8)
CVP/SWP Export
Operations......................................1243
(a)
Sources of Juvenile
Mortality..................................1243
(i)
Direct Mortality
........................................1243
(ii)
Indirect
Mortality.......................................1244
(b)
Protective
Measures..........................................1246
(i)
Incidental Take
Limits..................................1246
(ii)
Delta Cross Channel
Operations..........................1248
(iii)
Salmon Decision Tree
...................................1248
(c)
Summary of Delta Impacts
..:.................................1249
E.
Analysis of Overall Irreparable Harm/Jeopardy During Interim Period
............................................................1249
(1)
Critical Habitat Analysis
.........................................1249
(2)
Will Interim Project Operations Appreciably or Considerably Diminish the Species Chances of Survival and
Recovery?..........1250
(a)
Conclusions Re:
Winter-Run..................................1250
(b)
Conclusions Re:
Spring-Run..................................1251
(c)
Conclusions Re:
Steelhead....................................1252
IY.
CONCLUSION
...........................................................1253
I.
INTRODUCTION
A memorandum decision and order, issued April 16, 2008 as amended May 20, 2008, granted in part and denied in part Plaintiffs’ Endangered Species Act (“ESA”) challenges to the 2004 biological opinion (“BiOp”) issued by the National Marine Fisheries Service (“NMFS”) on the effects of coordinated operation of two of California’s largest water projects, the federal Central Valley Project (“CVP”) and the State Water Project (“SWP”), on the endangered Sacramento River winter-run Chinook salmon, the threatened Central Valley spring-run Chinook salmon, and the threatened Central Valley steelhead.
(See
Doc. 256, 606 F.Supp.2d 1122 , 2008 WL 2223070 (E.D.Cal.2008).)
Plaintiffs move for injunctive relief. The parties submitted briefs and evidence on whether the species’ would be placed in jeopardy or their critical habitat threatened with adverse modification or destruction until such time as the new BiOP is released.
(See
Doc. 233, filed Apr. 29, 2008.) While the proceedings were in progress, Plaintiffs moved for emergency injunctive relief, suggesting the immediate implementation of a number of interim remedies was necessary to prevent jeopardy. Plaintiffs identified four remedies for immediate implementation, and seven additional remedies for implementation pending the March 2009 completion of the new BiOp. (Doc. 280, filed May 27, 2008.) An evidentiary hearing commenced June 6, 2008 and concluded July 3, 2008. The hearing focused on the status of the species, whether Project operations would result in jeopardy before the new BiOp is issued, and on the four “immediate” remedies.
On June 20, 2008, after eight full days of testimony, Plaintiffs requested the court expedite decision on emergency injunctive
*1199
relief to: (1) increase flows on Clear Creek for the benefit of those spring-run that spawn there; and (2) raise the gates at Red Bluff Diversion Dam (“RBDD”) through July 15, 2008.
1
(6/20 Tr. 74:4-77:11.)
2
Plaintiffs were concerned that ongoing adult Chinook migrations, if completed, would diminish the potential value of any relief. The request was granted, and focused, supplemental expert testimony and documentary evidence was received.
Comprehensive testimony on the status of the species and the impacts of Project operations on the three species has been received from three expert fisheries biologists, Bruce Oppenheim, employed by NMFS, Dr. Christina Swanson of the Bay Institute, and Dr. Charles Hanson. Ronald Milligan, the Bureau’s Operations Manager of the CVP, and John Leahigh, Chief of the Project Operations Planning Branch for the SWP, both of whom are qualified experts in water project operations testified. Michael Urkov testified for Defendant-Intervenor Tehama Colusa Canal Authority,
et at.,
(“TCCA”), and qualified as an expert regarding fish passage and operations at RBDD. After considering the testimony of the witnesses, the exhibits received in evidence, the written briefs of the parties, and oral arguments, the following findings of fact and conclusions of are entered.
To the extent any finding of fact may be interpreted as a conclusion of law or any conclusion of law may be interpreted as a finding of fact, it is so intended.
il.
CONCLUSIONS OF LAW
A.
Jurisdiction.
1. Jurisdiction exists under 28 U.S.C. § 1331 (Federal Question), as this case arises under the ESA, 16 U.S.C. § 1536
et seq.,
and the Administrative Procedure Act (“APA”), 5 U.S.C. § 702
et seq.
2.
Defendant-intervenors San Luis
&
Delta-Mendota Water Authority, West-lands Water District, State Water Contractors, and Glenn-Colusa Irrigation District,
et at.,
have voluntarily submitted themselves to the district court’s jurisdiction by intervening and fully participating in this litigation. Defendant-intervenors Department of Water Resources (“DWR”) and TCCA expressly submitted to the Court’s jurisdiction as a condition of their intervention in these interim remedy proceedings. (Docs. 247
&
248, filed May 15, 2008.) TCCA agreed to limit their participation to non-duplicative and non-cumulative issues that are unique to RBDD and TCCA.
B.
Agencies’ General Obligations Under the ESA.
3. ESA Section 7(a)(2) prohibits agency action that is “likely to jeopardize the continued existence” of any endangered or threatened species or “result in the destruction or adverse modification” of its critical habitat. 16 U.S.C. § 1536 (a)(2).
4. To “jeopardize the continued existence of’ means “to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recov
*1200
ery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.” 50 C.F.R. § 402.02 ;
see also Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv.,
524 F.3d 917 (9th Cir.2008)
(“NWF v. NMFS II”)
(rejecting agency interpretation of 50 C.F.R. § 402.02 that in effect limited jeopardy analysis to survival and did not realistically evaluate recovery, thereby avoiding an interpretation that reads the provision “and recovery” entirely out of the text). An action is “jeopardizing” if it keeps recovery “far out of reach,” even if the species is able to cling to survival.
Id.
at 931 .
5. “[A]n agency may not take action that will tip a species from a state of precarious survival into a state of likely extinction. Likewise, even where baseline conditions already jeopardize a species, an agency may not take action that deepens the jeopardy by causing additional harm.”
Id.
at 930 .
6.The Supreme Court summarizes the operation of ESA Section 7:
Section 7 of the ESA prescribes the steps that federal agencies must take to ensure that their actions do not jeopardize endangered wildlife and flora. Section 7(a)(2) provides that “[e]ach Federal agency shall, in consultation with and with the assistance of the Secretary [of Commerce or the Interior], insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an ‘agency action’) is not likely to jeopardize the continued existence of any endangered species or threatened species.” 16 U.S.C. § 1536 (a)(2).
Once the consultation process contemplated by § 7(a)(2) has been completed, the Secretary is required to give the agency a written biological opinion “setting forth the Secretary’s opinion, and a summary of the information on which the opinion is based, detailing how the agency action affects the species or its critical habitat.” § 1536(b)(3)(A); see also 50 CFR § 402.14 (h). If the Secretary concludes that the agency action would place the listed species in jeopardy or adversely modify its critical habitat, “the Secretary shall suggest those reasonable and prudent alternatives which he believes would not violate [ § 7(a)(2) ] and can be taken by the Federal agency ... in implementing the agency action.” 16 U.S.C, § 1536(b)(3)(A); see also 50 CFR § 402.14 (h)(3). Regulations promulgated jointly by the Secretaries of Commerce and the Interior provide that, in order to qualify as a “reasonable and prudent alternative,” an alternative course of action must be able to be implemented in a way “consistent with the scope of the Federal agency’s legal authority and jurisdiction.” § 402.02. Following the issuance of a “jeopardy” opinion, the agency must either terminate the action, implement the proposed alternative, or seek an exemption from the Cabinet-level Endangered Species Committee pursuant to 16 U.S.C. § 1536 (e)
Nat’l Ass’n of Home Builders v. Defenders of Wildlife,
551 U.S. 644 , 127 S.Ct. 2518, 2526 , 168 L.Ed.2d 467 (2008).
7. In making determinations under the ESA, agencies must “use the best scientific and commercial data available.” 16 U.S.C. § 1536 (a)(2).
C.
ESA § 7(a) Only Applies to Actions that Fall Within a Federal Agency’s Discretion.
8. The Supreme Court recently upheld an NMFS/U.S. Fish and Wildlife Service
*1201
(“USFWS”) regulation interpreting ESA § 7(a)(2) as only applying to actions “in which there is
discretionary
federal involvement or control.”
Home Builders,
127 S.Ct. 2518 (interpreting 50 C.F.R. § 402.03 ).
Home Builders
addressed EPA’s decision to transfer to the State of Arizona its National Pollutant Discharge Elimination System (“NPDES”) permitting power under the Clean Water Act. The
Home Builders
Court held that this decision was non-discretionary:
While the EPA may exercise some judgment in determining whether a State has demonstrated that it has the authority to carry out § 402(b)’s enumerated statutory criteria, the statute clearly does not grant it the discretion to add another entirely separate prerequisite to that list. Nothing in the text of § 402(b) authorizes the EPA to consider the protection of threatened or endangered species as an end in itself when evaluating a transfer application. And to the extent that some of the § 402(b) criteria may result in environmental benefits to marine species, there is no dispute that Arizona has satisfied each of those statutory criteria.
Id.
at 2536;
see also NWF v. NMFS II,
524 F.3d 917, 927-28 (9th Cir.2008) (applying
Home Builders ,
holding that despite existence of broad, unquantified statutory goals in applicable Reclamation statute, Bureau still retains discretion over Project operations and those operations are still subject to the ESA).
9.Certain aspects of the management of the CVP/SWP are non-discretionary as that term is utilized in
Home Builders .
Most importantly, in this case, federal
Reclamation law requires the Bureau to comply with non-conflicting state water law. Reclamation Act of 1902, Pub.L. 57-161, 32 Stat. 288 at § 8 (June 17, 1902); Central Valley Project Improvement Act (“CVPIA”) § 3406(b), Pub.L. 102-575, 106 Stat. 4600 (Oct. 30, 1992). Specifically, the Bureau must comply with State Water Resources Control Board (“SWRCB”) water rights and water quality decisions.
See
CVPIA § 3406(b) (“The Secretary ... shall operate the [CVP] to meet all obligations under State and Federal law, including... .all decisions of the California State Water Resources Control Board establishing conditions on applicable licenses and permits for the project....”).
10. For example, the Bureau has a mandatory (i.e., non-discretionary) legal obligation to make releases from Shasta Reservoir for delivery to the Sacramento River Settlement Contractors. Under the Sacramento River Settlement Contracts, Settlement Contractors are entitled to 100% of their contractual supply in all years except so-called “Shasta Critical Years.” In Shasta Critical Years, Settlement Contractors’ priority supply may be reduced by 25 percent. This mandatory obligation derives from the priority of the Settlement Contractors’ water rights, which facilitated issuance of state water permits to the Bureau to operate the CVP. The CVP’s water rights are subject to the Settlement Contractors’ rights.
See e.g.,
SWRCB D-990 (granting water rights to the United States to operate the CVP, while also recognizing and prioritizing the protection of existing rights on the Sacramento River).
3
11. Non-priority water service contracts for irrigation and municipal and in
*1202
dustrial uses by north-of-Delta, in-Delta, and south-of-Delta CVP contractors are, for the purposes of
Home Builders ,
“discretionary” and are subject to the ESA.
See NRDC v. Houston,
146 F.3d 1118 , 1126 (9th Cir.1998);
O’Neill v. United States,
50 F.3d 677, 686 (9th Cir.1995).
4
12. When Congress authorized the CVP in 1937, it stated that Project “dams and reservoirs shall be used, first, for river regulation, improvement of navigation, and flood control; second, for irrigation and domestic uses; and, third, for power.” Act of Aug. 26, 1937, ch. 832, 50 Stat. 844 , 850;
see also United States v. SWRCB,
182 Cal.App.3d 82, 135 , 227 Cal.Rptr. 161 (1986). In 1992, Congress explicitly amended this hierarchy of use by enacting sections 3406(a) and (b) of the CVPIA, which make protection of non-ESA listed fish and wildlife co-equal priorities with irrigation. The CVPIA also expressly reaffirms the Bureau’s obligation to comply with the ESA in operating the CVP.
See
CVPIA § 3406(b) (“The Secretary ... shall operate the [CVP] to meet all obligations under State and Federal law, including. .. .the [ESA],...”).
13. As a top priority, the Bureau must “ ‘insure that actions authorized funded or carried out by [it] do not jeopardize the continued existence’ of a listed species,” even if doing so would require that the Bureau “alter ongoing projects in order to fulfill the goals of the Act.”
TVA v. Hill,
437 U.S. 153, 186 , 98 S.Ct. 2279 , 57 L.Ed.2d 117 (1978) (quoting 16 U.S.C. § 1536 (a)(2)).
D.
Remand Without Vacatur.
14. All defendants seek to keep the BiOP in place without vacatur and to retain the BiOp’s Incidental Take Permit (and associated take limits) during reconsultation until the new BiOp is issued.
5
15. The 2004 BiOp has been found unlawful, arbitrary, and capricious. ( Doc. 256 at 146 , 606 F.Supp.2d at 1193-94 .) The usual remedy under such circumstances is remand to the agency.
See Florida Power & Light v. Lorion,
470 U.S. 729, 744 , 105 S.Ct. 1598 , 84 L.Ed.2d 643 (1985). The court has the discretionary authority to impose a deadline for remand proceedings.
Nat’l Org. of Veterans’ Advocates v. Sec’y of Veteran’s Affairs,
260 F.3d 1365, 1381 (Fed.Cir.2001). NMFS shall complete the new BiOp on or before March 2, 2009.
16. If the BiOp and its incidental take statement are vacated, the Bureau and
*1203
DWR could be compelled to completely stop Project operations if they incidentally take one of the endangered species. Inoperative Projects would not maintain the status quo, but would instead produce catastrophic results to the public and all parties in interest. Plaintiffs, responsibly, have not suggested shutting down the Projects.
17. Vacating the BiOp would also remove the beneficial measures, terms, and conditions of the BiOp, such as numerous mitigation and adaptive management measures that to some extent are acknowledged by Plaintiffs as providing protection for the species. The BiOp also imposes other beneficial non-discretionary terms and conditions, including temperature controls on CVP and SWP managed rivers and restrictions on the operation of the Delta Cross Channel gates and RBDD gates. (Pltfs Ex. (“PE”) 3 at 212-16.)
18. Due to the disastrous disruptions that vacatur of the BiOp would cause to the vital water supply functions the CVP and SWP serve and the concomitant loss of protective measures for the species included in the BiOp and Incidental Take Statement, it appears most reasonable that the BiOp be remanded without vacatur, once further explanation of the steelhead take limit is provided. Agency decisions may remain in place, pending the completion of remand, even where they have been found “arbitrary and capricious.”
See NRDC v. U.S. Dept. of the Interior,
275 F.Supp.2d 1136, 1143 (C.D.Cal.2002);
Nat’l Wildlife Fed’n v. NMFS,
254 F.Supp.2d 1196, 1215-16 (D.Or.2003) (remanding BiOp without vacatur).
19. Nevertheless, the BiOp is subject to ESA Section 7(d) requirements.
E.
The Bureau’s 7(d) Obligations During Re-Consultation.
20. Here, the Bureau voluntarily re-initiated consultation with NMFS over the 2004 OCAP. ESA section (7)(d) governs the Bureau’s actions during consultation and provides in relevant part:
After initiation of consultation required under subsection (a)(2), the Federal agency and the permit or license applicant shall not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a)(2) of this section.
16 U.S.C. § 1536 (d). “Section 7(d) was enacted to ensure that the status quo would be maintained during the consultation process, to prevent agencies from sinking resources into a project in order to ensure its completion regardless of its impacts on endangered species.”
Washington Toxics Coal. v. EPA,
413 F.3d 1024, 1034-35 (9th Cir.2005). “The purpose of the consultation process ... is to prevent later substantive violations of the ESA.”
Id.
at 1034
(citing Sierra Club v. Marsh,
816 F.2d 1376, 1389 (9th Cir.1987)). It is well-settled that a court can enjoin agency action pending completion of section 7(a)(2) requirements.
Id.
21. During consultation, only “non jeopardizing” actions may continue.
Id.
at 1035.
F.
Standard for Issuance of Preliminary Injunctive Relief In ESA Cases.
22. In general, “the test for determining if equitable relief is appropriate is whether an injunction is necessary to effectuate the congressional purpose behind the statute.”
Biodiversity Legal Found, v. Badgley,
309 F.3d 1166 , 1177 (9th Cir.2002).
*1204
23. Outside the context of the ESA, the standard for granting a preliminary injunction balances plaintiffs likelihood of success against the relative hardship to the parties. The Ninth Circuit recognizes two different sets of criteria for preliminary injunctive relief. Under the traditional test, “a plaintiff must show: (1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to plaintiff if preliminary relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the public interest (in certain cases).”
Taylor v. Westly,
488 F.3d 1197, 1200 (9th Cir.2007). An “alternative” test requires that “a plaintiff demonstrate either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor.”
Id.
“These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases. They are not separate tests but rather outer reaches of a single continuum.”
Id.
24. In the Ninth Circuit, in ESA cases, the conventional preliminary injunctive relief standard is substantially modified.
Nat’l Wildlife Fed’n v. NMFS,
422 F.3d 782, 793-94 (9th Cir.2005)
(NWF v. NMFS I)
(“The traditional preliminary injunction analysis does not apply to injunctions issued pursuant to the ESA.”).
In cases involving the ESA, Congress removed from the courts their traditional equitable discretion in injunction proceedings of balancing the parties’ competing interests. As the Supreme Court has noted, “Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities.”
TVA v. Hill,
437 U.S. 153, 194 , 98 S.Ct. 2279 , 57 L.Ed.2d 117 (1978). Accordingly, courts “may not use equity’s scales to strike a different balance.”
Sierra Club v. Marsh,
816 F.2d 1376, 1383 (9th Cir.1987);
see also Marbled Murrelet v. Babbitt,
83 F.3d 1068, 1073 (9th Cir.1996) (“Congress has determined that under the ESA the balance of hardships always tips sharply in favor of endangered or threatened species.”).
Id.
(citations omitted);
see also TVA,
437 U.S. at 187-88 , 98 S.Ct. 2279 (concluding that Congress determined in the ESA that the value of endangered species is “incalculable” and prohibiting the balancing of economic harms against the Congressionally determined public interest in preserving endangered species);
Home Builders,
127 S.Ct. at 2537 (reaffirming holding from
TVA v. Hill
that economic burden of enforcing the ESA cannot be considered by the courts, concluding that “the ESA’s no-jeopardy mandate applies to every discretionary agency action-regardless of the expense or burden its application might impose”);
Nat’l Wildlife Fed’n v. Burlington N. R.R., Inc.,
23 F.3d 1508, 1510-11 (9th Cir.1994) (“In cases involving the ESA, Congress removed from the courts their traditional equitable discretion in injunction proceedings of balancing the parties’ competing interests.”);
Sierra Club v. Marsh,
816 F.2d 1376, 1383 (9th Cir.1987) (courts “may not use equity’s scales to strike a different balance”);
Marbled Murrelet v. Babbitt,
83 F.3d 1068, 1073 (9th Cir.1996) (“Congress has determined that under the ESA the balance of hardships always tips sharply in favor of endangered or threatened species.”).
6
*1205
25. Under this modified standard, plaintiffs must nevertheless demonstrate (1) a likelihood of success on the merits, and (2) a “reasonable likelihood” of irreparable harm.
See NWF v. NMFS I,
422 F.3d at 794 ;
NWF v. Burlington,
23 F.3d at 1511 (re-affirming that non-traditional injunctive relief standard applies, but finding that Plaintiffs still need to show likelihood of future injury to members of the endangered species).
(1)
Likelihood of Success on the Merits.
26. With respect to likelihood of success, Plaintiffs have already succeeded on the merits of their ESA claims regarding the legality of the 2004 BiOp.
26.1. TCCA suggests that at least with respect to the request for modifications to the operations of RBDD, Plaintiffs “cannot establish any likelihood of success on the merits” because the district court ruled in favor of the federal defendants on the issue of sufficiency of the adaptive management plan and mitigation measures for RBDD. TCCA assigns too much significance to the summary judgment ruling on that issue. The summary judgment decision found serious substantive errors throughout the BiOp. For example, NMFS failed to explain contradictory evidence as to the survival and recovery of the species and their habitat; failed to analyze the effect of the Projects on critical habitat; failed to evaluate the impact of the Projects in light of the species’ life cycles; failed to properly evaluate the baseline; and failed to evaluate the effects of climate change. (Doc. 256, filed May 20, 2008, 606 F.Supp.2d 1122 .)
26.2. With respect to the mitigation measures, Plaintiffs raised essentially the same challenge in this case as in the smelt case, arguing that the mitigation measures are not sufficiently definite and enforceable. Although the salmonid mitigation measures were found sufficiently certain and mandatory to be enforceable, the decision did not validate all mitigation measures as applied or
*1206
find that the measures fully satisfy NMFS’ and the Bureau’s Section 7(a)(2) responsibilities with respect to any aspect of ongoing joint Project operations. Such a finding would directly conflict with the holding that NMFS failed to adequately analyze critical factors, like the impact of Project operations, including RBDD operations, on the species’ recovery and critical habitat. Rather, the summary judgment decision determined that the mitigation measures identified in the BiOp were sufficiently certain to occur to be enforceable and implementable, and were distinguishable from the Delta Smelt Risk Assessment Matrix, which required no more than that agency scientists and representatives consult, and, despite ascertained action triggers and catastrophic conditions, the mitigation measures had never been implemented to protect the smelt.
(2)
“Reasonable Likelihood” of Irreparable Harm.
(a)
Injunctive Relief is Not Automatic.
27. Plaintiffs assert that, in light of Congressional pronouncements regarding the primacy of preserving endangered species, whenever an ESA violation has been conclusively established, as here, the “appropriate remedy” is to enjoin agency action until there has been “substantial compliance with [the ESA’s] procedural requirements.”
Thomas v. Peterson,
753 F.2d 754 , 764 & n. 8 (9th Cir.1985).
28. This is not the approach the Ninth Circuit took in reviewing a district court’s issuance of injunctive relief under the ESA in
NWF v. NMFS I,
422 F.3d at 793 , where the district court invalidated the controlling BiOp, and then heard plaintiffs’ request for injunctive relief pending completion of a new BiOp.
Id.
at 796-97 . The district court analyzed whether irreparable harm would result from Columbia River Power System operations pending completion of the remand.
Id.
The Ninth Circuit affirmed this approach, holding that “[a]l-though
not every statutory violation leads to the ‘automatic’ issuance of an injunction in the context of the ESA
‘the test for determining whether equitable relief is appropriate is whether an injunction is necessary to effectuate the congressional purpose behind the statute.’ ”
Id.
at 795 (quoting
Badgley,
309 F.3d at 1177) (emphasis added).
7
Cf. Lands Council v. U.S. Forest Serv.,
537 F.3d 981 (9th Cir.2008) (declining, in a NEPA case, “to adopt a rule that any potential environmental injury automatically merits an injunction. ...”).
29. Plaintiffs correctly assert that in every published ESA case in which likelihood of success was established, an injunction issued. However, Plaintiffs’ conclusion that an ESA violation automatically,
a fortiori,
requires injunctive relief is overstated. In each case cited by the parties, including those in which some language suggests injunctive relief must follow an ESA violation,
8
the existence of irreparable harm was evaluated.
30. There is considerable disagreement and confusion about what should be con
*1207
sidered “irreparable harm” for purposes of these injunctive relief proceedings. The Ninth Circuit has not articulated a standard or threshold at or above which ESA “harm” is considered “irreparable.”
9
(b)
Likely Extirpation Is Not the Standard.
31. Federal Defendants and Defendant Interveners repeatedly refer to the species’ “extirpation” or extinction as the benchmark for determining the necessary irreparable harm to justify interim injunctive relief. A court need not wait until the species is immediately threatened with extirpation to issue injunctive relief.
See Am. Rivers v. U.S. Army Corps of Eng’rs,
271 F.Supp.2d 230, 258-59 (D.D.C.2003) (injunction may issue if the number of individuals likely to be taken as a result of agency action during the time it will take to conclude litigation will cause “significant” harm to the species, even if there is “not the remotest possibility that the planned agency activity ... would eradicate the species”);
Swan View Coal., Inc. v. Turner,
824 F.Supp. 923, 938 (D.Mont.1992) (threatened extinction not necessary for a finding of harm under the ESA), (c)
Reduce Appreciably the Likelihood
of Survival or Recovery/Appreciably Diminish the Value of Critical Habitat.
32. The Ninth Circuit test requires that agencies not take actions as to species that will reduce appreciably their likelihood of survival or recovery or appreciably diminish the value of their critical habitat.
32.1. “Jeopardize the continued existence” of means “to engage in an action that reasonably would be expected, directly or indirectly, to
reduce appreciably
the likelihood of both the survival and recovery of a listed species in the wild, by reducing the reproduction, numbers, or distribution of that species,” 50 C.F.R. § 402.02 (emphasis added), while prohibited “destruction or adverse modification” is “any direct or indirect alteration that
appreciably diminishes
the value of critical habitat for both the survival and recovery of a listed species.”
Id.
(emphasis added).
32.2. Plaintiffs argue that any harm that is “appreciable” justifies equitable intervention. Plaintiffs maintain that under certain circumstances this standard is satisfied by the loss of one female salmon or steelhead capable of reproducing.
32.3. Plaintiffs assert that the term “appreciably” in the jeopardy context means “capable of being perceived or recognized by the senses; perceptible,” citing
*1208
Black’s Law Dictionary.
10
Plaintiffs argue that the meaning of “appreciably” is informed by the Ninth Circuit’s recent decision in
NWF v. NMFS II,
524 F.3d 917 , which held that an agency may not “gradually destrfoy]” a listed species or its critical habitat just because “each step on the path to destruction is sufficiently modest.” However, Plaintiffs quote
NWF v. NMFS II
out of context. That decision examines whether the agency was required to incorporate degraded biological conditions into the baseline for a jeopardy analysis. The Ninth Circuit reasoned:
To “jeopardize the continued existence of’ means “to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.” 50 CFR § 402.02 ; 16 U.S.C. § 1536 (a)(2). NMFS argues that, under this definition, it may satisfy the ESA by comparing the effects of proposed [project] operations on listed species to the risk posed by baseline conditions. Only if those effects are “appreciably” worse than baseline conditions must a full jeopardy analysis be made. Under this approach, a listed species could be
gradually destroyed, so long as each step on the path to destruction is sufficiently modest.
This type of slow slide into oblivion is one of the very ills the ESA seeks to prevent.
Id.
at 929-30 (emphasis added). This language does not define the term “appreciably” in the jeopardy inquiry, rather it considers the cumulative effects of incremental actions in light of baseline conditions.
32.4. Plaintiffs’ interpretation of “appreciably” to mean any “perceptible” effect would lead to irrational results, making
any
agency action that had
any
effects on a listed species a “jeopardizing” action. This is not the law, as such an interpretation conflicts with other provisions of the ESA that permit incidental take of a listed species.
See
16 U.S.C. § 1536 (b)(4) (describing procedure for issuance of incidental take statements), 1539(1)(B) (permitting incidental take).
32.5. Federal Defendants correctly note that NMFS and USFWS have interpreted the term “appreciably diminish” to mean “considerably reduce.” USFWS/ NMFS, ESA Section 7 Consultation Handbook (March 1998), at 4-34. The Consultation Handbook states:
Adverse effects on individuals of a species or constituent elements or segments of critical habitat generally do not result in jeopardy or adverse modification determinations unless that loss, when added to the environmental baseline, is likely to result in significant adverse effects throughout the species range, or
appreciably diminish
the capability of the critical habitat to satisfy essential requirements of the species.
Id.
at 4-34 (emphasis added). The following definition for “appreciably diminish” is provided:
Appreciably diminish the value: to
considerably reduce
the capability of designated or proposed critical habitat to sat
*1209
isfy requirements essential to both the survival and recovery of a listed species.
Id.
(emphasis added).
32.6. While not entitled to
Chevron
deference, the interpretations in the Consultation Handbook “are made in pursuance of official duty, based upon more specialized experience and broader investigations and information than is likely to come to a judge in a particular case,” and “constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.”
Skidmore v. Swift & Co.,
323 U.S. 134, 139-40 , 65 S.Ct. 161 , 89 L.Ed. 124 (1944).
32.7. The Consultation Handbook’s treatment of the term “appreciably” is NMFS’s interpretation of 50 C.F.R. § 402.02 , and is “controlling” unless “plainly erroneous or inconsistent with the regulation.”
Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 359 , 109 S.Ct. 1835 , 104 L.Ed.2d 351 (1989); see
also Webber v. Crabtree,
158 F.3d 460, 461 (9th Cir.1998) (agency’s interpretation of its own regulation is accorded a “high degree” of deference unless plainly erroneous or inconsistent with regulation). Moreover, the Consultation Handbook was prepared ten years ago and is not a “post hoc rationalization[n].”
Auer v. Robbins,
519 U.S. 452, 462 , 117 S.Ct. 905 , 137 L.Ed.2d 79 (1997). The Court has “no reason to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question.”
Id.
32.8.NMFS’s interpretation of the term appreciably is entitled to
Skidmore
deference. Plaintiffs’ overly expansive definition of “appreciably” reads the term out of the statute.
See Forest Guardians v. Veneman,
392 F.Supp.2d 1082, 1092 (D. Arizona 2005) (refusing to apply dictionary definitions of appreciably and instead deferring to the Consultation Handbook’s interpretation of appreciably to mean significant or considerable biological effects).
11
33. The Handbook definition of “appreciably” is also consistent with how the concept of irreparable harm has been applied in practice.
In NWF v. NMFS I,
422 F.3d 782, 795 (9th Cir.2005), the Ninth Circuit affirmed the issuance of a preliminary injunction where the district court found that the operation of the Columbia and Snake River dams “strongly contributed]” to the endangerment of listed species, citing the government’s own data showing “that between 78-92% of juvenile
*1210
fall chinook salmon that remain in-river for their migration are killed by the operation of the dams even with mitigation measures, with a mean estimated kill of 86% of the salmon migrating in-river.”
34.
American Rivers v. U.S. Army Corps of Engineers,
271 F.Supp.2d 230 (D.D.C.2003), defined “irreparable injury” as that which would result in significant take of the species and/or delays in implementing a recovery plan that would have significant impacts on the species. In
American Rivers ,
for a population of plovers numbering approximately 2,000 and a population of terns numbering approximately 7,000, a delay in implementing a recovery program for the birds was found to constitute “irreparable injury” to their recovery and continued existence. Id. at 259 . American
Rivers
also examined a population of sturgeon that numbered fewer than 2,000 and held that “any potential harm from delaying implementation [of the recovery action] is irreparable and must be avoided.”
Id.; see also, Water Keeper Alliance v. U.S. Dept. of Defense,
271 F.3d 21, 34 (1st Cir.2001) (requiring a “concrete showing of probable deaths during the interim period and
how those deaths might impact the species”
(emphasis added)).
12
35. The approach taken in
NWF v. NMFS I
and
American Rivers ,
that identifies “irreparable harm” as “significant” vis-a-vis the overall population, applies here.
36. However, the terms “significant” and “considerable” are imprecise and conclusory. Here, Plaintiffs expert opined that the combined effect of Project operations through the interim period are significant to the three species overall. The Defendants’ two experts opined that interim Project operations would not result in extinction during the interim period.
(3)
Burden Shifting.
37.
Washington Toxics
placed the burden of demonstrating that an action is non-jeopardizing on the acting agency.
Placing the burden on the acting agency to prove the action is non-jeopardizing is consistent with the purpose of the ESA and what we have termed its “institutionalized caution mandate! ].”
Sierra Club v. Marsh,
816 F.2d at 1389 . We said as much in
Thomas v. Peterson,
where the defendant, the U.S. Forest Service, urged the district court to conclude that absent proof by the plaintiffs to the contrary, a proposed project was not likely to affect an endangered or threatened species. 753 F.2d at 765 . We held that this was an inappropriate finding for the district court to make.
Id.
“It is not the responsibility of the
*1211
plaintiffs to prove, nor the function of the courts to judge, the effect of a proposed action on an endangered species when proper procedures have not been followed.”
Id.
The district court correctly assigned EPA the burden of proving that its actions were non-jeopardizing.
413 F.3d at 1034-35 .
13
38. After
Washington Toxics,
the ESA injunctive relief standard has been modified to place on the federal defendants the burden to demonstrate that their action will be “non-jeopardizing.”
14
39. The jurisprudence on this issue lacks clarity, because of a parallel line of cases that look for proof of “irreparable harm” rather than “no-jeopardy” before an injunction may issue.
See, e.g., NWF v. NMFS I,
422 F.3d 782 (requiring showing of irreparable harm before enjoining agency conduct during an interim period while consultation was ongoing). Does the burden of showing “non-jeopardy” equate to a burden to show that Project operations will cause no “irreparable harm”? If so, then according to the definition of “irreparable harm” articulated above, Federal Defendants bear the burden of showing that Project operations will not considerably reduce the species’ chances of survival or recovery or considerably reduce the value of their critical habitat.
40. In the only published case that specifically recognizes the burden-shifting approach
of Washington Toxics, Defenders of Wildlife v. Martin,
454 F.Supp.2d 1085, 1097 (E.D.Wash.2006), the district court acknowledged the burden shifting holding, but then largely ignored it, placing the burden upon Plaintiffs to show irreparable harm.
Id.
at 1098-99 .
41. No further treatment of the burden-shifting issue is required, because Federal Defendants, despite Defendant Interveners’ contrary contention, accepted the burden of proving their actions are non-jeopardizing. Applying the NMFS/ USFWS definition of “appreciable,” in order to show that their actions are non jeopardizing, the Federal Defendants must prove that Project operations during the interim period will not significantly or considerably reduce the species’ chances of survival and recovery and will not significantly or considerably reduce the value of their critical habitat.
(4)
Should Evaluation of “Significance” Occur at the ESU or Population Level?
42. The evidence regarding the significance of impacts to the spring-run has been presented in two ways: (1) relative to the entire evolutionarily significant unit (“ESU”) for each species; and (2) relative to those populations of each species that spawn above RBDD and/or within Clear Creek.
43. The parties agreed in open court that jeopardy should be determined at the
*1212
level of each species’ entire ESU. (6/27 Tr. 100:1-101:16.) This is consistent with the interpretation of “jeopardy or adverse modification” set forth in the Consultation Handbook, at p. 4-34:
The determination of jeopardy or adverse modification
is based on the effects of the action on the continued existence of the entire population of the listed species or on a listed population,
and/or the effect on critical habitat as designated in a final rulemaking. When multiple units of critical habitat are designated for particular purposes, these units may serve as the basis of the analysis if protection of different facets of the species’ life cycle or its distribution is essential to both its survival and recovery.
Adverse effects on individuals of a species or constituent elements or segments of critical habitat generally do not result in jeopardy or adverse modification determinations unless that loss, when added to the environmental baseline, is likely to result in significant adverse effects throughout the species’ range, or appreciably diminish the capability of the critical habitat to satisfy essential requirements of the species.
(emphasis added).
15
44. No evidence was offered that separate populations of spring-run or steelhead have been designated by final rulemaking. It is recognized that separate geographical locations for these species provide spatial diversity, which contributes to their survival and recovery.
(See
PE 1.) In contrast, the winter-run are a single geographical population in the mainstem upper Sacramento River. (PE 9 at 5:17-18.)
(5)
The Impacts of Project Operations Must be Evaluated in the Context of Baseline Conditions.
45. Plaintiffs place great weight on language from
NWF v. NMFS II:
“where baseline conditions already jeopardize a species, an agency may not take action that deepens the jeopardy by causing additional harm.” 524 F.3d at 930 . In
NWF v. NMFS II,
the agency failed to incorporate degraded baseline conditions into its baseline analysis.
Id.
at 929 . Plaintiffs are correct that the “[t]he proper baseline analysis is not the proportional share of responsibility the federal agency [action] bears for the decline in the species, but what jeopardy might result from the agency’s proposed actions in the present and future human and natural contexts.”
Pac. Coast Fed’n of Fishermen’s Assoc. v. U.S. Bureau of Reclamation,
426 F.3d 1082, 1093 (9th Cir.2005).
*1213
46. The jeopardy and habitat destruction determinations cannot be based upon piecemeal evaluations of incremental actions above the baseline.
NWF v. NMFS II,
explains “[ujnder this approach, a listed species could be gradually destroyed, so long as each step on the path to destruction is sufficiently modest. This type of slow slide into oblivion is one of the very ills the ESA seeks to prevent.” 524 F.3d at 930 ;
see also Am. Rivers,
271 F.Supp.2d at 258-59 (holding that jeopardy determination must “consider the ... proposed action in the context of [agency’s] overall management” of the action area and rejecting as invalid USFWS’s “ ‘incremental-step approach.’ ”
(quoting Conner v. Burford,
848 F.2d 1441, 1457-58 (9th Cir.1988))).
47. However, Plaintiffs take these holdings too far by suggesting that whenever a listed species is in a state of “jeopardy,” an agency is prohibited from taking
any
action that would cause any further “deterioration in the species’ pre-action condition,”
NWF v. NMFS II,
524 F.3d at 930 , even if that further deterioration is
de minimus.
The relevant inquiry is whether the “action effects, when added to the underlying baseline conditions,” in the present and future human contexts, are cumulatively such that they would cause
jeopardy
as that term is defined by law and agency regulation.
Id.
The seminal holding of
NWF v. NMFS II
is that baseline conditions must be factored into the jeopardy analysis, cumulatively with the entirety of agency actions.
48. Irreparable harm to justify injunctive relief is shown when the agency action causes appreciable (i.e., considerable or substantial) harm to the species or its critical habitat, as measured by the combined effects of the action and underlying baseline conditions.
(6)
Consideration of Recovery.
49. Recovery of the three salmonid species must be considered as part of the jeopardy and adverse modification analyses.
NWF v. NMFS II,
524 F.3d at 931-32 ;
Gifford Pinchot Task Force v. U.S. Fish and Wildlife Serv.,
378 F.3d 1059 , 1070 (9th Cir.2004). Recovery means “improvement in the status of listed species to the point at which listing is no longer appropriate under the criteria set out in section 4(a)(1) of the [ESA].” 50 C.F.R. § 402.02 .
50. However, “recovery impacts alone will not often prompt a jeopardy finding.”
NWF v. NMFS II,
524 F.3d at 932 . Only in “exceptional circumstances” could injury to recovery prospects result in a jeopardy finding.
Id.
at 931-32 .
(7)
Economic Harm May Not Be Considered, But Public Safety is Relevant and Injunctive Relief Must Be Narrowly Tailored.
51. The district court is constrained from balancing the competing interests of protecting endangered species against the economic costs of an injunction, because “Congress has decided that under the ESA, the balance of hardships always tips sharply in favor of the endangered or threatened species.”
Washington Toxics,
413 F.3d at 1035 ;
see also United States v. Glenn-Colusa Irrig’n Dist.,
788 F.Supp. 1126, 1132 (E.D.Cal.1992) (declining to consider the “social utility” of ordering defendant to cease operation of a pumping facility that was taking listed salmonids without a take permit).
52. During the
Kempthome
(Delta smelt) remedies hearing, objections were sustained to evidence of “pure economic harm,” but evidence was admitted about
*1214
risks to human health and safety (including evidence regarding the health and safety effects of secondary adverse impacts like land subsidence, land fallowing leading to air quality impacts, and community dislocations arising from job losses).
16
Further evidence was admitted to show the “water costs” of various remedial actions, as resulting water unavailability related to impacts on endangered species, safety consequences to communities (including to emergency services), and effects upon the structural integrity of Project facilities.
53. No party has presented any legal authority providing that purely economic interests may be balanced in an ESA injunctive relief case.
(8)
Judicial Non-intervention.
54. Concomitant with the requirement for narrow tailoring, the district court is bound by the general rule that a court should not substitute its judgment for that of the administrative agency.
NWF v. NMFS I,
422 F.3d at 798-99 ;
see also Lands Council,
537 F.3d 981, 993 (holding that when reviewing an agency decision, courts are to be “most deferential” when an agency is “making predictions within its area of expertise”). A federal court lacks the expertise and/or background in fish biology, hydrology, hydraulic engineering, water project operations, and related scientific and technical disciplines that are essential to determining how the water projects should be operated on a real time, day-to-day basis. The scientific, engineering, and operational constraints under which the Projects are managed on a day-to-day basis are of mind-boggling complexity and sensitivity, requiring the highest level of skill, competence, and experience. Plaintiffs did not offer an operations expert, nor do they profess to have such competence.
55.However, judicial deference is not unlimited. In
NWF v. NMFS I,
where NMFS’s BiOp had already been invalidated, the agency nevertheless argued that the district court was required to defer to its expertise. 422 F.3d at 798 . The Ninth Circuit disagreed, finding that, because the district court had already invalidated NMFS’s BiOp “in large part because it omitted factors essential to the analysis,”
there was no formal agency findings to which deference was owed. Id.
at 799. The agency in
NWF v. NMFS I
presented its case through expert affidavits.
Id.
Under such circumstances, the district court properly ordered injunctive relief after finding that planned operations could cause irreparable harm.
Id.
*1215
56. The narrow tailoring requirement means that a court should interfere with complex managerial decisions no more than absolutely necessary,
(9)
FERC Jurisdiction: Feather River and Oroville Dam.
57.
The Federal Power Act precludes review by district courts of operations regulated by the Federal Energy Regulatory Commission (“FERC”). Title 16 U.S.C., section 825i(b) confers exclusive jurisdiction upon the Courts of Appeals to review and make substantive modifications to FERC licensing orders. Section
8251(b)
provides, in relevant part, that “[a]ny party to a proceeding under this chapter aggrieved by an order issued by [FERC] in such proceeding may obtain review of such order in the United States Court of Appeal ... Upon the filing of such petition such court shall have jurisdiction, which upon the filing of the record with it shall be exclusive, to affirm, modify, or set aside such order in whole or in part.”
58. According to the Supreme Court, in drafting section 825i(b), Congress prescribed the specific, complete, and exclusive mode for judicial review of FERC orders.
City of Tacoma v. Taxpayers of Tacoma, 357
U.S. 320, 335-336, 78 S.Ct. 1209 , 2 L.Ed.2d 1345 (1958). “Hence, upon judicial review of the Commission’s order, all objections to the order, to the license it directs to be issued, and to the legal competence of the licensee to execute its terms must be made in the Court of Appeals or not at all.”
Id.
at 336 , 78 S.Ct. 1209 .
59. This rule applies to cases involving the ESA. It precludes the district court from exercising jurisdiction over ESA-related matters covered by a FERC license.
See Idaho Rivers United v. Foss,
373 F.Supp.2d 1158, 1160-1161 (D.Idaho 2005).
60.Here, DWR’s operations on the Feather River, through the Oroville/Thermalito Dam Complex, are currently subject to an annual FERC license. The fifty-year license has expired and a new long-term licence is in the final stages of the renewal process following executed settlement agreements among the parties in interest. Feather River operations covered by the FERC license are not within the jurisdiction of the district court.
III.
FINDINGS OF FACT
A.
Overview of Salmonid Life History.
1. Winter-run Chinook salmon, spring-run Chinook salmon, and steelhead are anadromous species that spawn in freshwater but rear for a portion of their lives in coastal marine waters. (Def. Int. Ex. (“DI”) B at Ex. 2; 6/6 Tr. 89:7-15.)
2. The fecundity (number of eggs produced) is typically 7,000 eggs per female steelhead and spring-run salmon, and approximately 3,000-4,000 eggs per female winter-run salmon. (6/6 Tr. 199:17-22; DI B at ¶6; 6/18 Tr. 180:22-23; 6/19 Tr. 47:16-25.) In general, for the population to remain stable, only two eggs from each spawning female need to survive to reproduce as adults. (DI B at ¶ 6.)
3. Chinook salmon and steelhead migrate upstream from the ocean, through the Delta, and into Central Valley rivers and creeks during the fall, winter, and spring months, depending on the species. (DI B at ¶ 7.) The run name for Chinook salmon, such as winter-run, reflects the seasonal timing of adult upstream migration.
(Id.)
The adults of some salmonid species (e.g., fall-run, late fall-run, and
*1216
steelhead) are sexually mature when they enter freshwater, while the adults of other species (e.g., spring-run and winter-run) are sexually immature and hold in upstream freshwater for a period of time before spawning.
(Id.;
Doc. 256 at 22:1-3, 22:13-15 .)
4. Spawning occurs in the upper reaches of rivers and streams in areas characterized by relatively clean gravel of suitable size, in areas where water temperatures during spawning are cool (preferably less than 57°F). (DI B at ¶ 7; Doc. 256 at 23:5-9, 23:9-11 .) The female digs a shallow depression in the gravel (redd) where the eggs are deposited and fertilized by the male. (DI B at ¶7.) The fertilized eggs are then covered by a shallow layer of gravel.
(Id.)
Water flow through the gravel and water temperatures are two of the factors that affect hatching success.
(Id.)
After hatching, the young salmonids remain in the gravel redd until they have absorbed the yolk-sac and begin to emerge into the surface waters.
(Id.)
5. For some salmonid species such as fall-run Chinook salmon, juvenile rearing in freshwater is relatively short (a period of months). (DI B at ¶ 8.) Some juveniles rear in upstream areas and migrate downstream as smolts (meaning that they are physiologically capable of the transition from freshwater to saltwater).
(Id.)
Others in the population migrate downstream shortly after emergence as fry and rear in the lower reaches of the rivers and the Delta until ready to move into saltwater.
(Id.)
In other species, such as winter-run, spring-run, and steelhead, the juveniles rear in upstream river habitat for one or more years before migrating downstream through the Delta into the ocean.
(Id.)
6. Juvenile salmonids rear in coastal marine waters for a period of typically two to five years, where they feed on marine macroinvertebrates (e.g., krill, amphipods, squid, etc.) and small fish. (DI B at ¶ 9.)
(1)
Winter-Run Biology, Location and Movement.
7. The Sacramento River winter-run Chinook salmon ESU is listed as “endangered” under the ESA. 70 Fed. Reg. 37 ,-160 (June 28, 2005). Adult winter-run Chinook salmon migrate upstream from the Pacific Ocean through the Bay-Delta estuary during November through March, moving upstream into the Sacramento River near Redding during December through April, with the greatest movement during late February through late March. (6/1 Tr. 51:25 to 52:3; DI B at Ex. 3; Doc. 256 at 22:21-26 .) The adults are sexually immature when migrating upstream and hold in the mainstem river for a period of months prior to spawning. (DI B at ¶ 10.)
8. Spawning typically occurs in the mainstem Sacramento River downstream of Keswick Dam during April through August, with the greatest spawning activity typically taking place during May. Egg incubation occurs between April and late September. (DI B at ¶ 10; Doc. 256 at 23:11-13 .) Juvenile rearing and emigration typically occurs between July and February in the upper Sacramento River, with juvenile migration downstream through the Delta taking place between late November and May. (DI B at ¶ 10 & Ex. 3.) The geographic distribution of winter-run Chinook salmon spawning is currently limited to the mainstem Sacramento River in the reach from Keswick Dam to Red Bluff. (DI B at ¶ 10 & Ex. 4; 6/6 Tr. 72:11-19, 73:1-3; PE 9 at 5:17-18.) However, the actual distribution of spawning and egg incubation within the reach varies
*1217
among years in response to water temperatures, adult abundance, and other factors. (DI B at ¶ 10.)
9. Juvenile and adult winter-run Chinook salmon use the entire Sacramento River, the Delta, and downstream bays (e.g., Suisun, San Pablo, and central San Francisco Bays) as juvenile rearing habitat and a migratory corridor. (6/6 Tr. 72:16-19; DI B at ¶ 10.)
10. Critical habitat for winter-run Chinook salmon has been identified to include the Sacramento River, Delta, and down: stream bays to the Golden Gate Bridge. (DI B at ¶ 10; Doc. ¶ 56 at 25:7-15.)
(2)
Spring-Run Biology, Location and Movement.
11. Adult spring-run Chinook salmon migrate upstream from the Pacific Ocean through the Bay-Delta estuary during January through mid-May, moving upstream into the Sacramento River near Redding, major tributaries such as Mill, Deer, and Butte Creeks, and the Feather River during late March through September, with the greatest movement during May. (6/10 Tr. 52:7-10; DI B at ¶ 11 & Ex. 5; 6/19 Tr. 16:5-7.) The adults are sexually immature when migrating upstream and hold in the mainstem river and tributaries for a period of months prior to. spawning. (DI B at ¶ 11; 6/10 Tr. 60:25-61:1, 62:10-16; Doc. 256 at 22:28-23:4 ; 22:13-15.)
12. Spring-run spawning typically occurs during late-August through September, with the greatest spawning activity during September. (DI B at ¶ 11; Doc. 256 at 23:15-17 ; 6/10 Tr. 32:4-7.) Egg incubation occurs between September and January. (DI B at ¶ 11 & Ex. 5;
see
6/10 Tr. 34:14-16.) A portion of the juvenile population may move downstream as fry, while a portion rear within the upper reaches of the rivers and tributaries for one year and then migrate downstream as smolts between approximately September and early May. (DI B at ¶ 11 & Ex. 5; Doc. No. 256, 23:28-24:3.) Juvenile migration downstream through the Delta typically occurs between late November and August, although the majority of juvenile migration occurs during the late winter and spring. (DI B at ¶ 11
&
Ex. 5.) The geographic distribution of spring-run spawning includes both the mainstem Sacramento River and a number of major tributaries. (DI B at ¶ 11 & Ex. 6.) During their seasonal period of adult and juvenile migration, the Sacramento River, Delta, and downstream bays serve as juvenile rearing habitat and a migratory corridor for both adult and juvenile spring-run. (DI B at ¶ 11.)
13. As a result of the seasonal migration through the Bay-Delta system, critical habitat for spring-run has been identified to include the Sacramento River, tributaries supporting spring-run, the Delta, and downstream bays to the Golden Gate Bridge. (DI B at ¶ 11.)
(3)
Central Valley Steelhead Biology, Location and Movement.
14. Adult steelhead migrate upstream from the Pacific Ocean into downstream bays, such as Suisun Bay, during the late summer and early fall, where they forage for a period of time before migrating into upstream rivers during the late fall and winter, when upstream water temperatures are more suitable. (DI B at ¶ 12 & Ex. 7; Doc. 256 at 36:16-20 .) Central Valley steelhead are broadly distributed
*1218
within many of the rivers and tributaries of the Central Valley, (6/6 Tr. 164:14-16), including the mainstem Sacramento, many of its upstream tributaries, the Feather, Yuba, American, Mokelumne, and Consumares Rivers, (DI B at ¶ 12). There is recent evidence of steelhead occurring on other tributaries to the lower San Joaquin River. (DI B at ¶ 12 & Ex. 11; Doc. 256 at 35:26-27 ; 6/6 Tr. 175:9-11, 180:19-181:5.)
15. Spawning typically occurs in the mainstem Sacramento River downstream of Keswick Dam and within a number of tributaries between late November and April, with the greatest spawning activity during the period from January through March. (DI B at ¶ 12
&
Ex. 4; 6/6 Tr. 168:7-10.) Egg incubation occurs between April and late September. (DI B at ¶ 10 & Ex. 4.) Juvenile rearing and emigration typically occurs between December and April in the upper Sacramento river. Juvenile steelhead rear within the river year-round for a period of typically one to two years before migrating downstream to the ocean.
(Id.
at ¶ 12; Doc. 256 at 37:11-15 .)
16. Juvenile migration downstream through the Delta typically occurs between late September and May. (DI B at ¶ 12 & Ex. 7.) The seasonal timing of migration, spawning and egg incubation, and juvenile emigration varies somewhat among Central Valley rivers. (DI B at ¶ 12 & Exs. 8-10.)
B.
Current Status of the Species.
(1)
Overview.
17. Winter-run Chinook are listed as endangered, 70 Fed. Reg. 37,160 (June 28, 2005), and Spring-run Chinook and Central Valley steelhead are listed as threatened under the ESA, 71 Fed. Reg. 834 (Jan. 5, 2006). The 2004 BiOp considered the impacts to these three ESA-listed species of the 2004 Operational Criteria and Plan (“2004 OCAP”) for combined operations of the CVP and SWP.
17
18. NMFS evaluates a species’ viability based on four criteria: (1) population abundance, (2) productivity, (3) geographic distribution, and (4) genetic diversity. (6/13 Tr. 119:19-120:8; PE 15A at 7:4-6.) As a species’ viability increases, its risk of extinction decreases. Mr. Oppenheim, NMFS’s biologist, explained a species that is not viable is “almost extinct” or “on the verge of being extirpated.” (6/10 Tr. 193:11-12; 6/11 Tr. 172:18-22,173:1-2.)
19. In a 2007 report commissioned by NMFS (the “Lindley article”), the Central Valley Technical Recovery Team (“CVTRT”), of which Drs. Hanson and Swanson were members, concluded that the three species were not viable and were all in jeopardy of extinction. (6/6 Tr. 15:10-11, 36:11-17; 6/10 Tr. 8:9-11; PE 1.)
20. In the Lindley article, the CVTRT specifically recommended “secur[ing] all extant populations” of the three species “as soon as possible.” (6/6 Tr. 40:8-10; PE 1 at 20.) “[Ejvery extant population [should] be viewed as necessary for recovery” of the three species. (6/6 Tr. 40:18-29, 41:1; 6/10 Tr. 104:6-10; 6/13 Tr. 154:7-8; PE 1 at 20.) Mr. Oppenheim concurred with the CVTRT’s conclusion. (6/10 Tr. 185:15-20, 188:10-16.)
21. These conclusions of the CVTRT expressed in the Lindley article are undis
*1219
puted, although the Lindley article suggests criteria for judging long-term recovery goals to ultimately delist the species. (PE 1.) The Lindley article is not an official NMFS publication nor is it a recovery plan. The immediate inquiry is what jeopardy is posed to the three species’ ESUs over the eight-month interim period.
(2)
Winter-Run.
22. The winter-run Chinook ESU has been listed as endangered since 1994.
See
59. Fed. Reg. 440 (Jan. 1, 1994). The ESU constitutes a single population that spawns and rears in a limited stretch of habitat in reaches of the upper mainstem of the Sacramento River downstream of Keswick Dam. (PE 9 at 5:17-18; PE 15A at 13:22-14:4.)
23. Adult escapement (the number of adult fish that return from the ocean to spawn in freshwater each year) of winter-run was relatively high during the late-1960s and through 1978 and substantially decreased throughout the 1980s and 1990s. (DI C; 6/10 Tr. 75:12-16.) Between approximately 2000 and 2006, adult winter-run returning to spawn in the Sacramento River showed an increasing trend of abundance. (6/6 Tr. 75:17-20, 188:14-16; 6/19 Tr. 34:18-20.) Adult winter-run escapement in 2006 exceeded 17,000 fish, the highest level of escapement in 20 years. (6/19 Tr. 34:21-23.)
24. Adult escapement declined markedly between 2006 and 2007, from over 17,-000 fish in 2006 to approximately 2,500 in 2007. (6/10 Tr. 11:16-17, 20-2; 6/11 Tr. 173:10; 6/19 Tr. 34:1-35:3.) This level is far below the goal, established in a NMFS recovery plan, of 26,000 returning adults for thirteen consecutive years. (6/12 Tr. 198:1-15.) Adult returns have not fallen this low since the drought years of the mid-1970s. (PE 15B, Fig. 3.)
25. The cohort replacement rate
18
based on 2007 abundance estimates was less than 1.0 (reflecting a decline in replacement for the first time in recent years). (6/10 Tr. 24:8-10; DI B at ¶ 18; PE 9 at 5:18-6:2.) This means the winter-run are not recovering.
26. Estimates of juvenile winter-run production (known as the Juvenile Production Estimate (“JPE”)) showed a generally increasing trend beginning in the early 1990’s, reaching a peak in 2004 of more than 2,000,000 juvenile winter-run produced in the river and entering the Delta. (6/6 Tr. 76:9-20; DI B at ¶ 19 & Eh. 17.) The JPE for the winter-run was approximately 500,000 in 2005 and 1,300,000 in 2006. (DI B at ¶ 19.) As of May 15, 2008, the 2008 JPE, representing the offspring of 2007 spawners, was lower than average, at approximately 500,000. (PE 9 6:2-5; 6/6 Tr. 77:14-17.)
27. The results of recent unpublished data from the 2008 USFWS rotary screw trap sampling
19
at RBDD estimated that the number of juvenile winter-run migrating downstream past RBDD in 2008 is between 1,100,000 and 1,500,000 fish, which is one of the lowest estimates on record.
*1220
(Tr. Day 1, 77:14-17; PE 9 6:2-5.) Since 2004, this estimate ranged from 3-8 million juveniles per year. (PE 9 6:2-5.)
28. NMFS anticipates that returns in 2008 may be about the same as in 2007, resulting in a second consecutive year of “extremely low” winter-run abundance. (6/12 Tr. 196:7-9, 196:20-197:4.) As of June 25, 2008, 136 winter-run redds have been sighted in the upper Sacramento, all located above Airport Road. (6/25 Tr. 56:6-14.) This is a marked decrease from 2005, when 948 redds had been located by this time that year. (6/25 Tr. 66:3-21.) New carcass
20
surveys indicate that, to date, there have been 218 winter-run salmon carcasses observed by boat surveys. This is a slightly higher number than observed last year at this time. (Tr. 6/25 54:13-18.)
29. The timing of winter-run spawning varies from year-to-year depending upon hydrology and water flow and temperature. Mr. Oppenheim opined that winter-run spawning is occurring later this year than normal but is within past years’ range of variation. (6/25 Tr. 56:15-57:14.)
30. Because of the ESU’s “extremely reduced [spatial] distribution[ ],” it is “highly vulnerable to some sort of catastrophic event.” (6/13 Tr. 120:16-21.) In addition, because of reduced genetic diversity, the winter-run is “more susceptible to disease.” (6/13 Tr. 121:10-11.)
31. The number of winter-run salvaged at the CVP and SWP fish salvage facilities as of May 13, 2008 was 1,316 fish, substantially lower than in recent years. (PE 9 6:10-11.) This salvage figure is less than 0.3% percent of the 2008 take limit of 11,798 fish (2% of the JPE).
32. Overall, at present, the winter-run ESU is “clearly not recovering.” (6/13 Tr. 130:19-20.) An “important criterion for recovery ... would be the establishment of additional independent populations located in different geographic regions.” (6/13 Tr. 131:14-18; 6/18 Tr. 207:9-14; PE at 31:3-7.) All scientists conclude the winter-run population is not viable at this time because it is composed of a single population that lacks spatial diversity. (PE 1 at 13.) Nonetheless, the CVTRT concluded that winter-run ESU faces a “low” risk of extinction in the long term. (6/10 Tr. 173:4-5; PE 1 at 10.)
33. The exact causes of the sharp 2007 decline in winter-run abundance are unknown, but declines in other salmon populations that do not spawn in the Central Valley provides strong evidence that poor ocean conditions were a major factor. (PE 13 21:11-22:7.) In addition, the reduced number of juvenile winter-run this year is partially explained by the extremely dry hydrologic conditions.
34. Larger numbers of winter-run should return to spawn in 2009 because both the commercial and recreational salmon fisheries are closed this year.
35. Dr. Swanson opined that if the Bureau does not conserve cold water resources now to protect returning cohorts in 2009, and if current dry hydrology continues, winter-run egg mortality could reach 100% in 2009. (6/13 Tr. 141:1-10.)
36. Given the winter-run’s low abundance levels in 2007 and 2008, “loss of the 2009 cohort represents a very, very severe [potential] adverse impact,” because it will be the third consecutive cohort (out of
*1221
three cohorts) to exhibit markedly low returns. (6/13 Tr. 140:11-14.) Dr. Swanson opined, in light of a second year of low winter-run abundance in 2008, we will have “run out of cohorts that are persisting in the ocean.” (6/13 Tr. 140:22-141:1.)
(3)
Spring-Run.
37. Like the winter-run, the spring-run ESU suffers from loss of historic upstream habitat. ( Doc. 256 at 29-30, 33 , 606 F.Supp.2d at 1138-39, 1140 .) The ESU was listed as threatened in 1999.
(Id.
at 29, at 1138.)
38. The ESU is also limited in its spatial structure. (6/13 Tr. 122:14-22.) There are nine populations of spring-run. Six are “dependent” populations (i.e., their spawning grounds are within the sphere of influence of Project operations) that spawn in the Sacramento River mainstem above RBDD, in tributaries above RBDD, or in the Feather River. Three are “independent” populations (i.e., their spawning grounds are outside the influence of Project operations) that spawn on Butte, Mill, and Deer Creeks, tributaries that join the Sacramento River below RBDD.
38.1.Once the largest spring-run population, totaling 20,000 adults in 1986 (6/10 Tr. 31:6-13), the population that spawns above RBDD on the mainstem Sacramento and upper tributaries “has declined precipitously and [now] persists at very[,] very low numbers,” constituting approximately 10% of the ESU as a whole (6/13 Tr. 122:12-14). The 2007 Grand Tab
21
figures indicate that slightly more than 1,300 spring-run returned to spawn on the main-stem or tributaries above Red Bluff Diversion Dam. (DI J.) This population nonetheless constitutes “an important component of the spatial structure” of the ESU. (6/13 Tr. 151:8-11.) One of these populations, on Clear Creek, is the subject of one of Plaintiffs requests for emergency relief. Although that population is not presently viable, its numbers increased in recent years. (PE 9 at 7:13-14; 6/19 Tr. 138:10-13; PE 15A at 16:6-7.) The experts agree that establishing a viable Clear Creek population would benefit the spring-run Chinook ESU’s recovery. (6/6 Tr. 65:24-66:6; 6/10 Tr. 30:21-23; 6/13 Tr. 16:4-22.)
38.2. The additional dependent population on the Feather River, comprises 10% to 25% of the entire ESU. (6/6 Tr. 144:13-15,145:14-15.)
38.3. The “independent” populations on Butte, Mill, and Deer Creeks, comprise 65-90%
22
of the spring-run ESU. It is undisputed that the close geographic proximity of these independent populations reduces the ESU’s spatial distribution, increases its vulnerability to catastrophic events such as a large wildfire,
23
and decreases the species ability to cope with
*1222
global climate change (6/13 Tr. 122:23-123:13), thereby increasing its risk of extinction (6/13 Tr. 150:17-20; 6/10 Tr. 174:22-25, 179:20-180:5; PE 4.26). These latter risks are not directly attributable to the Projects.
39. Overall, for the entire ESU, following a period of low adult escapement between 1991 and 1997, adult spring-run abundance in the Central Valley began to increase in 1998. (DI B at ¶ 39 & Ex. 37.) Adult abundance generally increased between 1999 and 2005, followed by a moderate reduction in adult escapement in 2006 and 2007. The estimated adult escapement of spring-run in 2007 was approximately 10,500 fish, which was similar to adult escapement in 2006 (approximately 10,600 fish). (DI B at ¶ 39; PE 9, 7:1-3.) Spring-run adult escapement did not show the magnitude of reduction in 2007 that was observed in either adult winter-run or fall-run escapement. (6/6 Tr. 139:1-3.) This is explained by differences in the size of juveniles, seasonal timing of ocean entry, differences in ocean behavior, die t, and migration patterns. (DI B at ¶ 39.)
40. For a number of reasons, there is limited information about juvenile production for spring-run. (6/6 Tr. 143:15-22, 144:3-9; DI B at ¶ 41.) Juvenile salmon monitoring occurs downstream in the Delta at Chipps Island as a part of USFWS’s midwater trawl. (6/6 Tr. 78: 6-9; DI B at ¶¶ 21, 41.) However, it is difficult to differentiate juvenile spring-run from juvenile fall-run Chinook salmon in these samples. (DI B at ¶ 41.) As a result, estimates of annual abundance from the Chipps Island trawl have been combined by USFWS for both spring-run and fall-run salmon.
(Id.)
These juvenile abundance estimates are characterized by annual variation but do not show a trend of either increasing or decreasing juvenile production.
(Id.
at Ex. 39.)
41. According to Mr. Oppenheim, “any processes that increase spring-run Chinook salmon mortality in the future can have significant impacts on the population demographics and therefore on the risk of extinction.” (6/10 Tr. 179:23-180:5; PE 4.26.) Dr. Swanson confirmed that the ESU’s ability to achieve viability “depends on having a more diverse spatial structure.” (6/13 Tr. 151:3-4; 6/19 Tr. 131:6-22, 132:4-7.) Additional factors that are preventing the ESU from becoming viable include low genetic diversity and introgression with fall-run Chinook. (6/12 Tr. 22:16-23:6.)
42. In general, the ESU has demonstrated a negative cohort replacement rate over the last four years, indicating that the species is not replacing itself. (6/10 Tr. 175:3-6; 6/11 Tr. 88:5-8; PE 9 at 7:3-5.) Trends in spring-run abundance, population, and productivity in recent years indicate that the ESU’s status is deteriorating. (6/13 Tr. 122:18-22.)
43. Spring-run are not presently recovering. (6/10 Tr. 30:18-20; 6/13 Tr. 131:12— 13.) Recovery goals include increasing the ESU’s geographic distribution and establishing additional independent populations: “Spring-run recovery will require establishment of additional populations outside of those present in [M]ill, [D]eer and Butte Creek[s].” (6/13 Tr. 131:21-23; 6/18 Tr. 207:15-19.) For this reason, “all extant populations ... should be viewed as essen
*1223
tial to the recovery of the species,” including the recently re-established Clear Creek population. (6/10 Tr. 30:21-23; PE 9 at 7:13-15.) Nonetheless, the CVTRT concluded that the ESU, based primarily on the independent populations on Butte, Mill & Deer Creeks, is at “low” risk of extinction in the long term. (6/10 Tr. 173:4-5; PE 1 at 10.)
(4)
Steelhead.
44. Access to much of the Central Valley steelhead’s historic and preferred spawning habitat in Sacramento River tributaries at high elevations has been blocked by dams. (6/6 Tr. 168:20-169:3.) The ESU was listed as threatened in 1998 as a result of several factors, including loss of historic habitat and declining abundance. ( Doc. 256 at 35, 38-39 , 606 F.Supp.2d at 1140-41,1142-43 .)
45. Recent data on the status of the steelhead is limited. It is difficult to reliably estimate steelhead abundance due to lack of accurate monitoring information, but the experts agree that the best available information indicates that since 2004, steelhead abundance has continued to decline and that the species is consistently and presently at low abundance. (6/6 Tr. 31:8-9, 160:10-11, 162:14-19; 6/10 Tr. 93:25-94:4; 6/13 Tr. 70:25-71:3, 96:25-97:2, 104:16-18, 132:22-25.) Estimates of juvenile steelhead abundance based on results of the USFWS Chipps Island midwater trawl surveys show a declining trend in juvenile abundance between 1995 and 1997 with consistently low abundance (densities) every year between 1998 and 2007. (6/6 Tr. 163:1-11; DI B at Ex. 45.)
46. A 2005 report released by the Biological Review Team concluded:
If we make the fairly generous assumptions (in the sense of generating large estimates of spawners) that average fecundity is 5,000 eggs per female, 1 percent of eggs surviving to reach Chipps Island, and 181,000 smolts are produced (the 1998-2000 average), about 3,628 female steelhead spawn naturally in the entire Central Valley. This can be compared with McEwan’s (2001) estimate of 1 million to 2 million spawners before 1850, and 40,000 spawners in the 1960s.
(PE 9 at 38:20-39:6 (citing Good
et al.
2005).)
47. A 2003 study by Nobriga and Cadrett approximated that 100,000 to 300,000 steelhead juveniles are produced naturally each year in the Central Valley. (PE 9 at 39:19-20.)
48. According to Mr. Oppenheim:
Existing wild steelhead stocks in the Central Velley are mostly confined to the upper Sacramento Rivers and its tributaries, including Antelope, Deer and Mill Creeks[,] and the Yuba River. Populations may exist in Big Chico and Butte Creeks and a few wild steelhead are produced in the American and Feather Rivers (McEwan and Jackson 1996). On January 5, 2006 ( 71 FR 834 ), NMFS designated Feather River Hatchery steelhead as part of the DPS. The in-river produced Feather River steel-head are limited to a small area within the low flow channel where water temperatures and flow remain constant (600 cfs year round). Recent snorkel surveys (1999 to 2007) indicate that steelhead are present in Clear Creek, however, due to a large resident O
mykiss
population in Clear Creek, steelhead spawner abundance is difficult to determine. Until recently, Central Valley steelhead were thought to be extirpated from the San Joaquin River system. Recent
*1224
monitoring has detected small self-sustaining populations of steelhead in the Stanislaus, Mokelumne, and Calaveras River, steelhead smolts have been captured in rotary screw traps at Caswell State Park and Oakdale each year since 1995 (S.P. Cramer 2000 to 2007) and adults have been observed moving through the fish weir in recent years (S.P. Cramer 2007). Recent studies (Zimmerman
et al.
2008) have documented Central Valley steelhead in the Stanislaus, Tuolumne[,] and Merced Rivers based on otolith microchemistry.
(PE 9 at 39:19^40:12.)
49. Steelhead populations in Deer, Mill, and Antelope Creeks are stable, but these populations remain suppressed. (PE 9 8:12-14.)
50. Low population numbers heighten the ESU’s vulnerability to catastrophic events. (6/13 Tr. 19:11-16.) In light of the declining trends in population, abundance, and spatial distribution, as well as habitat loss, the ESU as a whole is not viable. (6/11 Tr. 174:2-8.) The ESU’s becoming viable depends on maintaining the small populations in every stream where steelhead exist. (6/18 Tr. 19:17-21, 20:18-22.) There is no evidence that the ESU is recovering. (6/13 Tr. 132:24-25.)
51. Mr. Oppenheim testified that the steelhead ESU is presently “in jeopardy of extinction” (6/6 Tr. 37:25-38:1), while Dr. Swanson opined that it is at “high risk of extinction” (6/13 Tr. 70:2-24, 129:21-24). The CVTRT concluded that this ESU is at a moderate to “high” risk of extinction in the long term. (6/10 Tr. 184:6-10; PE 1 at 10.)
C.
Impacts from Non-Project Related (Baseline) Conditions.
52. Juvenile salmon rear in coastal waters for several years before returning to freshwater. Typically, sub-adult and adult Chinook salmon are harvested in coastal commercial and recreational fisheries while steelhead (because of their die t) are not vulnerable to ocean harvest. (DI B at ¶ 9.) Both adult Chinook salmon and steelhead are harvested in relatively low numbers in the inland recreational fisheries within San Francisco, San Pablo, and Suisun bays, Delta, and the Sacramento River and its tributaries. (DI B at ¶ 9; 6/6 Tr. 94:2-3.)
53. An NMFS BiOp for the ocean harvest of winter-run allows take of 20% of the estimated adult winter-run population annually. (DI B at ¶ 9.) The salmon harvested by fishermen are primarily three year old fish. (6/6 Tr. 94:8-10; 6/12 Tr. 126:14-15.) When harvest is allowed, it adversely impacts abundance and age structure. (6/18 Tr. 178:17.)
54. The salmon season, both commercial and recreational, has been closed for 2008, due to poor ocean conditions, meaning that there will effectively be no harvest through March 2009.
(See
PE 9 at 11:11— 13.) This shutdown of the salmon fishing industry may result in improved survival for those cohorts still out at sea. (6/6 Tr. 135:25-136:5; 6/12 Tr. 24:9-13.)
55. It is undisputed that recent years’ ocean conditions have been poor. During 2004 and 2005, standard indices that measure the abundance of salmonid food sources were substantially lower than in prior years, resulting from a lack of ocean upwelling off the coast. (6/6 Tr. 90:23-25.) Fall-run and winter-run Chinook and Coho salmon escapement numbers exhibited marked declines in 2007, including runs that spawned and reared in coastal tributaries that are completely independent of environmental and Project-induced conditions in the Delta watershed. (6/6 Tr.
*1225
90:1-7, 90:25-91:4.) Spring-run did not show declines attributable to ocean conditions, because spring-run exhibit different seasonal timing of ocean entry and different juvenile die t at the time of ocean entry. (DI B at ¶ 39.)
56. It is undisputed that natural hydro-logic (rainfall and climate) conditions affect Central Valley salmonid populations, both negatively (in dry years) and positively (in wet ones). (6/6 Tr. 59:18-60:11.)
57. Dam and flood control structures not related to the Projects caused significant habitat loss. (PE 9 at 17-18.)
58. Other material, non-Project adverse impacts include in-Delta water diverters; toxics and other pollutants in the water; hatchery fish, which can diminish genetic integrity and species strength; disease; predation; and alien invasive species. (PE 9 at 18-24.)
59. No party has provided an estimate of the overall, cumulative effects of non-Project impacts on the species’ survival and recovery and loss of critical habitat.
D.
Project-Related Impacts.
(1)
Overview of Project Operations.
60. This water year, both the Sacramento and San Joaquin Valleys are hydro-logically classified as “critically dry.” (7/1 Tr. 11:5-7.) This March, April, and May were the driest on record (in terms of precipitation). (7/1 Tr. 11:12-14.) The level of dryness that occurred this spring occurs in less than one percent of the years of record. (7/1 Tr. 14-18.)
61. Storage in the CVP’s upstream reservoirs is very low. (7/1 Tr. 11:24-12:1.) The northern reservoirs are at their lowest levels since the end of 1992, which followed an extended (5 year) period of drought. (7/1 Tr. 12:2-3.) Inflows into the CVP reservoirs have been very low this year, ranging from between 40% and 60% of normal. (7/1 Tr. 12:4-19.)
62. The Governor of California has declared a statewide drought and drought emergencies within certain counties in the Central Valley. (7/1 Tr. 17:25-18:7.)
63. The elements of the CVP and SWP are operated together as an integrated system, in coordination with DWR, NMFS, USFWS, the California Department of Fish and Game (“CDFG”), the Western Area Power Administration, and local entities. (6/27 Tr. 117:22,121:22-122:2-5.)
64. The Bureau operates the CVP for multiple beneficial uses, with the goal of ensuring that every release of water is used for multiple purposes. (6/27 Tr. 128:5-11.) For example, a release from a reservoir may generate power, help to meet a temperature objective, then meet an inflow standard or objective further downstream, and finally be diverted for use as water supply.
(Id.)
65. The statutory purposes of the CVP include river regulation, storage and release of water for consistency in stream-flows, prevention of saltwater intrusion, and downstream water quality requirements. Act of Aug. 26, 1937, ch. 832, 50 Stat. 844 , 850;
see also United States v. SWRCB,
182 Cal.App.3d 82, 135-36 , 227 Cal.Rptr. 161 (1986). As discussed above, CVPIA sections 3406(a) and (b) made non-ESA listed fish and wildlife equal priorities with water service for irrigation, and identified the Bureau’s duty to operate the CVP in compliance with the ESA.
66. Under the Reclamation Act of 1902, 43 U.S.C. § 383 , the Bureau must proceed in conformity with state laws, except
*1226
where federal laws conflict. SWRCB Decision 1641 (“D-1641”) provides that the Bureau must comply with applicable water quality requirements.
67. The Bureau gives the highest priority in its water allocation decisions to prescribed (i.e., mandatory) legal requirements that constrain its operations, including the terms and conditions of applicable BiOps under the ESA, the terms and conditions of water rights permits, settlement agreements with senior water rights holders, and water quality standards (including those imposed by D-1641). (6/27 Tr. 130:15-24.) The second tier in the priority of water allocations includes deliveries to water contractors (both agricultural and municipal and industrial) and “level two” deliveries to wildlife refuges (for restoration purposes). (7/1 Tr. 10-16.) The third tier (lowest) priority of water service needs includes power generation, incidental recreational use, and “level four” deliveries to wildlife refuges (for wildlife enhancement purposes). (7/1 Tr. 4:2.)
68. The Bureau prepares a 12-month forecast to guide its operation of the CVP, but plans specific management actions, including specific levels of releases from reservoirs only three to four days in advance, to respond to the significant uncertainties that affect operations, including day-to-day weather conditions (including rainfall, air temperatures, and runoff) and the level of depletions or accretions within the river basins. (6/27 Tr. 119:22-23, 120:13-20.)
69. Releases from CVP reservoirs may increase (“accrete”) or decrease (“deplete”) as they travel to the Delta as a result of the natural migration of water through the soil of the river channels, small creeks that feed into the river systems, and diversions by riparian water rights holders (including in-Delta diverters). (6/27 Tr. 120:23-121:4; 7/1 Tr. 15:4-11.) This year, depletions are especially high — that is, much less of the water released from the reservoirs actually reaches the Delta — due to the very dry conditions that the Central Valley has experienced since the beginning of March. (6/27 Tr. 121:12-17.)
70. The Bureau’s most recent 12-month forecast was completed at the beginning of June. (PE 12 at Att. 2.) The conditions included in that forecast are based on a 75% probability of occurrence. A 75% year is one in which conditions in the Central Valley would be
wetter
than the assumed conditions in 75% of years, based on the historic record. (7/1 Tr. 27:5-13.) This is a conservative forecast for conditions during the next water year, and equates to a dry or critically dry year. (7/1 Tr. 27:14-28:9.)
71. Deliveries to CVP and SWP water service contractors have been substantially reduced in light of very dry conditions in the Central Valley. (7/1 Tr. 13:5-7.) Agricultural service contractors north of the Delta are receiving a 40% allocation this year, adjusted downward from an initial projection of a 45% allocation due to increasingly dry conditions this spring. (7/1 Tr. 13:8-20.) Agricultural service contractors south of the Delta are also receiving a 40% allocation this year, and deliveries during June, July, and August will be further limited to 35% by restrictions on Delta pumping. (7/1 Tr. 13:21-14:8.) Municipal and industrial (“M
&
I”) contractors are receiving a 75% allocation this year. (7/1 Tr. 14:9-13.) Level two refuge needs are receiving 100%. (7/1 Tr. 14:14-19.)
72. Sacramento River Settlement Contractors are receiving 100% allocation because, under the terms of their contracts, these allocations are linked to Shasta inflow criteria that were met this year. (7/1
*1227
Tr. 17:3-4.) Similarly, the San Joaquin River Exchange Contractors (priority south-of-Delta Eastside contractors) are receiving 100% allocations because their contracts are also linked to Shasta inflows. (7/1 Tr. at 17:13-20.)
73. Between now and the end of the summer, the Bureau will generally be operating the CVP to meet temperature compliance points on the Sacramento and American Rivers, (7/1 Tr. 28:12-17), and/or to meet requirements in the Delta set by D-1641, (7/1 Tr. 28:12-17).
74. The Bureau expects that its operations will be subject to additional constraints once USFWS issues its new BiOp on the effects of CVP operations on the Delta smelt due September 15, 2008. (7/1 Tr. 29:15-21.)
(2)
Shasta Reservoir I Sacramento River Operations.
75. The only remaining population of winter-run spawns and rears in the upper Sacramento River, downstream of Keswick Dam and Shasta Reservoir. (6/6 Tr. 72:16-22.) A relatively small population of spring-run also currently spawns in the upper Sacramento and tributaries above RBDD, as do some steelhead. (6/6 Tr. 144:4-9. 146:17-21; 6/12 Tr. 24:24-25:1; DI B at ¶ 12.)
(a)
Operations.
76. Shasta operations are characterized in part by two parallel management tasks: (1) the control of temperatures on the upper Sacramento River during the summer and fall to keep temperatures sufficiently low to avoid jeopardy to fish populations; and (2) the maintenance of carryover storage (“COS”) in Shasta Reservoir at the end of the water year, September 30th, the sufficiency of which affects the Bureau’s ability to control water temperatures to protect fish the following summer.
77. The 2004 BiOp calls for the Bureau to maintain a target of 1.9 million acre-feet (MAF) of carryover storage in Shasta. (6/11 Tr. 1:20-2:12.) The 2004 BiOp recognizes, however, that the 1.9 MAF target might not be met in 15% to 19% of the years, the percentage of years predicted to be dry based on historic averages. (PE 3 at 107.) The Bureau currently predicts that end-of-September carryover storage for Shasta will be 1.548 MAF, approximately 350,000 acre-feet less than the target. (PE 3 at 107; PE 12 at Att. 2.) Mr. Milligan opined that storage should be returned to 1.9 MAF by the end of December 2008. (FD C at Att. 2.) How this will benefit temperature control operations was not explained.
78. The Bureau anticipates additional constraints from the Delta smelt BiOp to be issued September 15, 2008. (7/1 Tr. 29:15-21.)
79. At the same time, the 2004 BiOp requires that the Bureau maintain 56°F or cooler flows at Balls Ferry on the Sacramento River, the so-called temperature compliance point (“TCP”), for the benefit of Chinook eggs and emerging fry, which require temperatures of 56°F or less.
(See
PE 3 at 219; PE 15A 9:27-28.) When it does not appear that the TCP can be maintained at Balls Ferry, the 2004 BiOP requires the Bureau to convene the Sacramento River Temperature Task Group (“SRTTG”). (PE 9 4-5, ¶ 5.)
80. The SRTTG uses real-time data, including information about Shasta’s cold-water pool, throughout the season, to formulate, monitor, and implement a temperature control plan for the Sacramento
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River. (DI B at Ex. 16.) Members of the SRTTG include representatives of the SWRCB, NMFS, USFWS, and CDFG, among others. (DI B at Ex. 12, n. 3; 6/12 Tr. 124:17-25.) Mr. Oppenheim is a member of the SRTTG. (6/10 Tr. 192:9-10.)
81. In mid-May 2008, the SRTTG recommended that the Bureau modify its releases of water from Shasta Dam to blend warmer water with cold water to conserve the coldwater pool in Shasta. (6/6 Tr. 11:1-8; 6/12 Tr. 185:8-11.) That warm water release recommendation was approved after being considered by the Water Operations Management Team (“WOMT”). (6/11 Tr. 25:24-26:12; 6/12 Tr. 26:2-12, 191:2-19.) The Bureau implemented this bypass from June 1 to June 20, 2008. (6/11 Tr. 26:2-12; 191:2-19.)
24
82. In early June 2008, the SRTTG recommended maintenance of the TCP upstream, at Airport Road, to provide suitable habitat for both winter-run and spring-run spawners. (6/11 Tr. 12:4-6.) Airport Road is located approximately half way between Balls Ferry (at river mile 274.85) and the Clear Creek confluence with the Sacramento (at river mile 289.12). Given that Keswick Dam is located at river mile 300.90, this leaves approximately between 18 to 19 miles of habitat of suitable temperature.
(See
FD D; 6/20 Tr. 202:16-17.)
83. Moving the TCP further downstream might encourage salmon to spawn in a reach of the River where temperature cannot be controlled throughout the entire incubation period, subjecting eggs to increased mortality. (6/11 Tr. 188:19-25, 192:3-9.) According to Mr. Oppenheim, the SRTTG engages in a “balancing act between meeting the downstream requirements [in] the Delta and meeting ... the carryover target and the temperature [compliance point] in the upper Sacramento.” (6/11 Tr. 195:24-196:3.) Current modeling indicates that the coldwater pool at Shasta will be sufficient to maintain the TCP at Airport Road through the end of September. (6/11 Tr. 30:7-11; 7/1 Tr. 72:25-73:4.)
84. The stated goal of the SRTTG is to protect 90 percent of the fish 90 percent of the time. (6/11 Tr. 17:4-6.)
85. Between now and the end of the summer, the Bureau will generally be operating the CVP to meet temperature compliance points on the Sacramento and American Rivers, (7/1 Tr. 28:12-17), and/or to meet requirements in the Delta set by D-1641, (7/1 Tr. 28:12-17). Earlier in the summer, the Bureau made some deliveries to maintain adequate flows in the Sacramento River at Wilkins Slough to facilitate diversions by riparian water rights holders. These releases did not affect the coldwater pool because they were made from a warmer part of Shasta Reservoir. (7/1 Tr. 87:15-17, 88:12-16.)
86. In some cases, once water is used to meet mandatory obligations, it can be
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diverted for use by water service contractors. For example, if water is released to meet Sacramento River temperature requirements, but that water is not needed to meet the in-Delta requirements of D-1641, such water may be available for diversion upstream of the Delta or for export out of the Delta. (6/27 Tr. 128:5-11.)
87. Even though the Bureau believes that releases from July through September will predominantly be allocated either to temperature control requirements or Delta water quality requirements mandated by Dr-1641, (7/1 Tr. 94:15-20), Mr. Milligan predicts that some water will be released from reservoirs solely for the purpose of facilitating deliveries to water service contractors of the balance of their 2007-08 water year allocations.
88. Mr. Milligan estimated that the totality of these water service contractor releases through September 30 will be between 100,000-150,000 acre-feet through the end of the water year. He believes that this volume of releases will not significantly alter the temperature compliance point for next year. (7/1 Tr. 103:11-18.)
89. The Bureau has considered the continued delivery to contractors for the balance of the water year. The Bureau has not modeled a scenario that cuts off all non-priority water service contract deliveries for the balance of the water year.
90. In addition to the coldwater pool at Shasta Reservoir, the Bureau also draws on cold water from the Trinity River system to manage water temperatures on the Sacramento River. (7/1 Tr. 42:15-23.) Plaintiffs have requested that the Bureau be ordered to include as much Trinity water as possible in Shasta operations to preserve the Shasta coldwater pool. Mr. Milligan represented that the Bureau is already considering the feasibility of drawing more water from the Trinity River system during July and August of this year to assist with temperature management on the upper Sacramento River. (7/1 Tr. 43:17-22, 46:25-47:5.) However, the Trinity River watershed is also dry this year. (7/1 Tr. 45:22-23.) By the middle of August, the water from the Trinity River will have warmed to more than 56 0 F, which means that it is not useful in managing Sacramento River water temperatures (and is actually a detriment). (7/2 Tr. 42:18-23, 44:20-45:3, 45:8-11.)
(b)
Winter-Run.
91. The SRTTG has limited mortality of winter-run eggs and fry to less than 4% since 2001. (PE 13 at 6:6-8; PE 3 at Ex. 3; 6/10 Tr. 190:23-191:5,192:4-14.)
92. In setting the temperature control point, the SRTTG uses CDFG aerial redd surveys to estimate the spatial distribution of spawning winter-run salmon. (6/10 Tr. 198:23-119:16.) Although there is some imprecision to aerial surveillance, the information is routinely relied upon by SRTTG and is the best available scientific data to calibrate abundance. (6/10 Tr. 199:14-16, 201:10-25; 6/13 Tr. 78:17-79:8.) To date, all 136 winter-run redds detected in aerial surveys are located above Airport Road. (PE 13 at 5:15-17; 6/13 Tr. 78:6-16; Fed. Def. Ex. (“FD”) B.) This is largely consistent with recent spawning patterns; since 2001, more than 95% of observed redds have occurred at or above Airport Road. (PE 13 at Ex. 3.)
93. Plaintiffs cite the 2008 OCAP BA, at Table 5-4, which indicates that more than 5% of winter run historically spawn below Airport Road. (DI F at Table 5-4.) But, the evidence does not establish that significant numbers of winter run have
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recently spawned below Airport Road.
(See Id.
at Table 5-5 (indicating that less than 1% of winter-run redds were located below Airport Road from 2001-2005).)
94. Because the vast majority of observed and predicted spawning will take place above Airport Road, moving the temperature compliance point to there is not expected to cause any significant egg/ fry mortality. (PE 13 at 6:2^1.)
95. Nevertheless, moving the TCP to Airport Road, eight miles above the 2004 BiOp’s target of Balls Ferry, will reduce spawning habitat. Mr. Oppenheim opined that there will be some negative impacts from moving the TCP and suggested that in a “best case scenario” the TCP should be maintained as far downstream as possible to “provide as much habitat for the winter-run to expand into” as possible. (6/11 Tr. 186:5-10.) He also opined that there is adequate spawning habitat available above Airport Road this year to avoid superimposition of winter-run redds. (6/13 Tr. 81:4-12.) He believes there is a sufficient quantity of gravel and sufficient habitat to support a much larger population in that area.
(Id.)
96. Dr. Hanson opined that, due to the SRTTG’s adaptive management, less than 3% of this year’s winter-run would be impacted by temperature control operations at Shasta and CVP operations. (6/10 at 190:24-191:5.)
(c)Spring-Run.
97. The record does not reveal specific mortality figures for spring-run salmon in the upper Sacramento. The eggs of spring-run, which spawn in late August and early September, are affected by temperature conditions on the Sacramento during those months. (6/6 Tr. 146:17-147:3.) By late October, although spring-run eggs are still incubating, ambient temperatures tend to be low enough to eliminate much of the threat of temperature stress on the Sacramento River. (6/6 Tr. 147:15-20.)
(d)Steelhead.
98. The record does not contain specific mortality figures for steelhead on the Sacramento River. Steelhead adults and eggs are not affected by Shasta TCP/carryover management because they spawn in the winter. (6/12 Tr. 44:21-45:9.) However, juveniles oversummer in Central Valley rivers and tributaries, including the Sacramento mainstem. (6/6 Tr. 165:2-12.) Because suitable habitat for juvenile steel-head is characterized by water temperatures of between 63°F and 65°F and below, (6/6 Tr. 173:19-21), temperature control management below Shasta will likely be protective of oversummering juvenile steelhead. (6/6 165:2-12; 169:22-170:5.)
(e)Worst Case Scenario.
99. In part because current operational forecasts predict only 1.548 MAF carryover storage in Shasta at the end of this water year, there is concern that if next year is also dry, there may not be enough cold water in Shasta to preserve
any
habitat for next year’s (2009) winter-run spawners. (6/13 141:1-7, 146:16-20.) This could, under a worst case scenario, result in the complete loss of the 2009 winter-run year class. (6/11 Tr. 197:19-20, 198:7-11; 6/13 Tr. 141:5-10, 146:18-22; 6/18 Tr. 25:18-20.) Given the winter-run ESU’s current “status and trajectory” toward extinction, the fact that the 2007 and 2008 cohorts are at record low numbers, and the fact that the ESU consists of a single population, the winter-run may be unable to “tolerate,” i.e. to recover from, temperature failure in 2009. (6/19 Tr. 25:12-26:24.)
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100. Notwithstanding the potential loss to the 2009 year class, none of the three species will be extirpated even if temperature control was impossible in 2009, because other year classes remain in the ocean, (6/11 Tr. 190:24-199:5), although it is undisputed that the 2007 and 2008 year winter-run classes are diminished.
101. The defendants’ experts opine it is preferable to protect this years’ population by adaptive management, than to reserve water to protect next years’ cohort. (6/13 Tr. 82:17-23.)
102. The Bureau’s discretion to hold water in Shasta is severely constrained by a variety of mandatory legal requirements, primarily temperature control requirements on the upper Sacramento and in-Delta requirements imposed by D-1641. Mr. Milligan estimates the approximately 100,000-150,000 acre-feet of water discretionarily released to water service contractors over the next nine months are minimal, (7/1 Tr. 80:22-81:4), and will not make a significant difference to next years’ cold-water pool, nor will further contractor reductions improve ability to manage Sacramento River water temperatures, (7/1 82:5-83:10). As no contrary operational evidence was presented, Mr. Milligan’s testimony is accepted as accurate.
(3)
Impacts of Red Bluff Diversion Dam Operations.
103. The RBDD traverses the Sacramento River at Red Bluff, between river miles 241 and 242. (6/24 Tr. 5:12-13.) The dam is comprised of eleven gates across the Sacramento River that, when lowered, raise the elevation of the river to allow water to flow by gravity into the Tehama-Colusa and Corning Canals, where water is distributed mainly to agricultural users. (6/24 Tr. 6:9-18.) At peak irrigation demand, which usually occurs in mid July, RBDD diverts as much as 1,200 cfs of Sacramento River flows. (6/24 Tr. 10:4-8,11:5-10.)
104. Initially, RBDD gates were closed year round, including the period from December through April of each year, when deliveries were made to a fish rearing facility in the Tehama Colusa Canal. (6/24 Tr. 75:2-9.) Later, when that fish rearing facility was abandoned, the gates were opened from December through April.
(Id.)
Early fish studies at RBDD demonstrated that the closure of RBDD’s gates created a barrier to fish passage, resulting in delayed migration, disorientation of juveniles, and increased mortality. (DI B at 22 ¶ 25.) Based on the results of these earlier studies, RBDD gate operations have been modified over time to reduce the seasonal period when the gates are closed.
(Id.)
105. Current gate operations are based on the 1993 NMFS BiOp for winter-run salmon. Under the 1993 BiOp, the gates at RBDD are required to be opened nine months of the year, from September 15 to May 14 each year for the protection of the species. (6/24 Tr. 74:15-25; PE 3 at 111— 113.) This schedule overlaps the peak spring-run upstream migration period of late April through June.
106. RBDD design includes three fish ladders to facilitate fish migration, which “pass[ ] approximately 700 cfs.” (6/20 Tr. 155:6-21.)
107. There is also an experimental pumping plant located near RBDD, which is capable of delivering 465 cfs into the Tehama Colusa Canal. (6/24 Tr. 12:9-15.)
108. There are plans to build a new pumping plant at RBDD that would have
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greater capacity could permit the gates to remain open year round. (6/24 Tr. 17:7-17.) The plans are currently undergoing environmental review.
(Id.)
The project will take several more years for permitting and construction. (6/24 Tr. 17:23-18:5.)
(a)
Impacts to Up-Migrating Adults During Entire Closure Season (Currently May 15 through Sept. 15).
(i)
Overview of Impacts to Adult Salmonids During Entire Closure Season.
109. When its gates are closed, RBDD “creat[es] a velocity barrier that prevents upstream migrating adult salmon and steelhead from passing under (or over) the dam.” (6/10 Tr. 105:10-14; PE 3 at 111.) The number of salmonids actually prevented from passage is not quantified.
110. During a normal closure season, up to 15% of all winter-run Chinook and 72% of spring-run Chinook that spawn above RBDD encounter closed gates at RBDD and may be blocked or delayed by RBDD. (6/10 Tr. 55:20-25, 191:6-9; PE 20.) No known mortality rates exist.
111. The reproductive success of those winter-run and spring-run Chinook salmon that encounter RBDD is adversely affected in several ways:
111.1.Migration delays at RBDD when the gates are closed deplete adult Chinook’s finite energy supplies, which are intended to last throughout their migration, holding, and spawning stages. (6/10 Tr. 108:15-20.) According to the 2004 BiOp, these delays, which can last for weeks, “may leave the fish in a weakened state before spawning which may subject them to a greater chance of disease, especially if they have to hold over summer in warm water conditions prior to spawning (e.g., spring-run Chinook salmon).” (PE 3 at 112.)
111.2. Blockage or passage delay at RBDD may also result in “changes in spawning distribution, hybridization with fall-run Chinook salmon, increased adult pre-spawning mortality, and decreased egg viability, all of which may result in the reduction in annual recruitment of this species.” (6/10 Tr. 108:20-109:7; 6/19 Tr. 96:4-10; PE 3 at 112; 6/13 Tr. 156:6-10.)
111.3. Those fish that are truly blocked by RBDD may consequently spawn below RBDD in the Sacramento River mainstem, “outside the area where tolerable environmental conditions” are maintained, thus causing “unsuccessful reproduction.” (6/19 Tr. 102:8-13, 102:23-103:2, 104:22-105:4.)
112. RBDD has three aging fish ladders. These “have proven to be inefficient at certain flow levels to pass anadromous fish to upstream spawning grounds.” (6/11 Tr. 69:9-15; 6/10 Tr. 106:2-23; 6/19 Tr. 95:23-96:2.) The BiOp for the planned pumping plant concluded that the ladders are “undersized and are not very successful in passing adult salmonid[s] without delays.” (6/20 Tr. 179:21-180:10; PE 6 at 35.) Some, unquantified number fish are never able to pass the dam. (6/10 Tr. 55:10-12; 6/19 Tr. 97:8.) Nevertheless, it is undisputed that some salmon do pass through the ladders each year. (6/20 Tr. 155:21-25.) Fish counts in 2008 show that winter-run and spring-run have been successful at passing RBDD to the upper Sacramento River spawning grounds below Keswick and Shasta Dams. (6/27 Tr. 55:20-24.)
113. As a result of the above-mentioned impacts, RBDD contributes to increased mortality for all three ESUs at some level that cannot be quantified. (6/20
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Tr. 184) It is undisputed that elimination of RBDD gates would have benefits for all three species and their recovery. As to the plan to replace or supplement RBDD with a pumping plant, USFWS, NMFS, and CDFG all “support! ] and recommend! ] • • • returning] the Sacramento River at Red Bluff to pre-dam condition, the gates-out alternative.” (6/11 Tr. 71:1-8; 6/13 Tr. 162:19-163:3.) Returning to year-round gates-out operations “would allow unimpeded access above and below the dam” and “represents ... a substantial improvement in fish passage over the 4-month alternatives.” (PE 11 at 7, 23.) The proposed pumping plant will not be complete and operative within the next few years, and certainly not within the interim period. (6/25 11:15-22.)
(ii)
Impacts of RBDD to Spring-Run Adult Migration During Entire Closure Season.
114. The 2004 BiOp concludes that the impacts of RBDD are particularly detrimental to spring-run because the gate closures overlap with a greater portion of this species’ seasonal migration period. (6/10 Tr. 56:6-22, 93:14-21, 109:8-12; 6/11 Tr. 91:16-20; PE 3 at 112.) Approximately 10% of the entire spring-run Chinook ESU (equating to more than 70% of the spring-run Chinook populations that spawn upstream of RBDD) encounter closed gates at RBDD. (6/6 Tr. 149:8-20; 6/11 Tr. 52:4-15.) The bulk of the spring-run upstream migration passes RBDD in May and June, with less significant numbers passing in April and July. (TC B at ¶ 11.)
115. Some number of those spring-run that are delayed at RBDD, but do ultimately pass, may not be able to reach their spawning habitat in upstream tributaries before water temperatures effectively “block passage and prevent the fish from ascending the stream to cooler reaches at higher elevations.” (6/19 Tr. 118:1-8.)
115.1. This includes delays to fish that might otherwise successfully spawn as part of the spring-run Clear Creek population that has been identified as “essential to the recovery of [the] species.” (6/11 Tr. 52:16-20, 89:5-11; 6/13 Tr. 132:10-18; 6/19 Tr. 124:23-125:2.) Migration delays at RBDD also increase the likelihood that spring-run seeking to access the important Cottonwood Creek watershed “may encounter thermal barriers to reaching the mouth of Cottonwood [Creek], Consequently, they may then be unable to make it to cold water to spawn. This region supports a large population, so a few thermal barriers can have huge impacts.” (6/11 Tr. 57:16-58:3;, 54:6-16, 59:7-20, 60:2; 6/13 Tr. 157:23-158:58.) Delays at RBDD may also cause spring-run to reach Cottonwood Creek late in the summer, when inadequate instream flows will preclude access for lack of “connectivity” with the Sacramento River mainstem. (6/12 Tr. 160:4-7.) It is not possible to quantify The likelihood of such delays occurring. (6/19 Tr. 117:24-118:18,127:6-19.)
115.2. At the same time, the highest number of spring-run to spawn in Clear Creek over a ten year period occurred in 2007.
(Id.)
Mr. Oppenheim also explained that even if a migration delay ultimately limits an individual spring-run from spawning in a tributary upstream of the RBDD, the fish might be able to successfully spawn in the Sacramento River. (6/12 Tr. 28:5-10.)
116.Overall, Mr. Oppenheim agreed that RBDD gate operations adversely affect the spring-run ESU’s chances for recovery. (6/11 Tr. 87:21.) According to Dr. Hanson, opening the RBDD gates during June would “improve[] the likelihood of
*1234
survival and the likelihood of successful reproduction” for the Sacramento River spring-run population. (6/10 Tr. 61:16— 62:3.) However, spring-run are capable of, and do, spawn upstream of RBDD, as they do pass the dam. (6/12 Tr. 27:19-22.)
117. Spring-run do not spawn immediately upon reaching their spawning grounds because spring-run are not sexually mature during upstream migration and hold for a period of time before spawning. (6/19 Tr. 122:20-23, 123:7-11.) The effect of a migration delay on spring-run may be less significant than the effect on a sexually mature fish because the spring-run can mature downstream of RBDD. (6/10 Tr. 62:10-16; 117:9-23.)
(iii)
Impacts of RBDD to Winter-Run Adult Migration During Entire Closure Season.
118. The Sacramento River is the winter-run Chinook ESU’s only spawning habitat. (6/11 Tr. 53:17-25.)
119. The RBDD gates-closed period does not overlap with typical adult winter-run Chinook migration because winter-run move up the Sacramento River during December through April with the greatest movement during late-February through late-March. (DI B at ¶ 10; PE 15-A at Fig. 2; TC B.) In contrast to spring-run, only approximately 15% of winter-run Chinook adults encounter RBDD gate closures between May 15 and September 15, 2008. (TC B.) The gates are open the rest of the year.
(iv)
Impacts of RBDD to Steelhead Adult Migration During Entire Closure Season.
120. The RBDD gates-closed period does not overlap with typical adult steel-head migration because upstream steel-head migration occurs during late fall and winter. (DI B at ¶ 12; PE 15-A at 18:23-24; 6/12 Tr. 45:2-3.) The closure of the RBDD gates could delay 17% of those steelhead trying to migrate above RBDD, but that delay is probably not significant because steelhead have a prolonged spawning period and are therefore not as dependent on reaching the tributaries within a defined time period to hold over and spawn as are other salmonids. (6/12 Tr. 46:16-24, 47:10-19; PE 20.)
121. Moreover, only a portion of the entire steelhead ESU spawns above RBDD.
(See
PE 9 at 39-40.)
(b)
Emergency Request To Raise Gates Through July 15.
122. Initially, Plaintiffs requested, on an emergency basis, that the RBDD gates be opened immediately from mid-June through July 15 and in August be opened and closed for alternating weeks. Subsequently, Plaintiffs modified their request, and now seek opening of the RBDD gates for the entire month of August.
123. The emergency request that the gates be opened immediately through July 15 was submitted for decision on June 27, 2008, after the district court granted Defendants’ and DefendanNIntervenors’ request to supplement the record with additional calculations and analyses of statistical information. An oral statement of decision denied Plaintiffs’ request on the following grounds:
124. Mr. Milligan testified that it would take at least three or four days to begin the process of closing the gates at RBDD, and another several days to safely drain the lake behind the dam in an orderly manner. (6/26 Tr. 53:3-23, 56:19-58:12.) Therefore, optimistically, normal “gates-open” flows would not be restored before July 1.
*1235
125. In addition, during the period just after the gates are opened, fish passage might be adversely affected for approximately one week, as the fish “fell back” in response to the increased flows. (6/25 Tr. 48:6-8.)
126. Juveniles would not benefit considerably from opening the gates between July 1 and July 15. Although, RBDD increases predation of juvenile winter-run, spring-run, and steelhead, the juveniles of those species are not typically present in significant numbers at the dam during the month of July. TCCA’s Exhibit B, indicates that only 1.7% of winter-run juveniles, 0.6% of spring-run, and 3.7% of rainbow trout/steelhead pass RBDD during the
entire
month of July.
127. Winter-run adults would not benefit considerably from the gates being opened from July 1 through July 15. As of the end of June, most adult winter-run migrating up past RBDD have already passed. (6/11 Tr. 201:1-3.) The greatest proportion of winter-run up-migration past RBDD occurs in March and April. (TC B.) According to historic run timing records, 3.4% of the winter-run encounter the dam during the entire month of July. (TC B.)
25
Not all of those fish will be prevented from successfully spawning.
128. Similarly, steelhead adults would not benefit considerably from the gates being opened from July 1 through July 15. According to historic run timing records, which measure passage of rainbow trout (of which steelhead is a variant) through the fish ladders at RBDD, only 9.3 percent of those trout that pass RBDD do so during the
entire
month of July. (TC B.) The majority of steelhead migration occurs during late fall and winter, when the gates are open. (DI B at ¶ 12; PE 15A at 18:23-24.) Moreover, steelhead life history patterns are such that they are not as impacted by delays in general.
(See
DI B at ¶ 50.)
129.The magnitude of the impact upon spring-run adults is a matter of considerable scientific dispute between the experts, however, and depends in part on the data set utilized.
129.1. Dr. Hanson analyzed three separate data sets to determine the relative percentages of the species that were impacted by RBDD for the period from June 26 through July 15, 2008. (DI L; 6/27 Tr. 47:24-50:7.) For each data set, he first analyzed what percentage of the entire ESU was impacted and then analyzed the proportional effect upon those populations of fish that spawn above RBDD. In order to distinguish between a mere “encounter” with the dam and a true adverse impact, Dr. Hanson made a series of assumptions about the proportion of fish that would be truly “blocked” (i.e., prevented from successfully spawning) by RBDD. Acknowledging that there is no way to know how many fish are truly “blocked” by RBDD, Dr. Hanson provided a range of estimates for each scenario (from 10%-50%), representing a hypothetical percentage of fish
*1236
that encountered that dam but were effectively prevented from spawning by RBDD. (6/27 Tr. 52:21-58:3.)
129.2. These figures reflect Dr. Hanson’s estimates as to the number of fish that would be effectively prevented from successfully spawning by RBDD. Although it is undisputed that no one knows the actual percentage of fish that encounter the dam that are completely blocked, there is support for his assumption that the blockage figure should not be 100%, given that some fish do pass through the ladders to spawn above RBDD. It is also undisputed that there is no data to show mortality of fish encountering RBDD.
129.3. Based upon fish ladder counts performed by Mr. Killam at RBDD in 2005 and 2006, Dr. Hanson estimated that between 0% and 0.1% of the
entire
spring-run ESU would be blocked by RBDD from June 26 through July 15, 2008. This equates to betwee

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2157425. Public record. Not legal advice.