Joint Appendix — United States Fish and Wildlife Service, et al., Petitioners v. Sierra Club, Inc.

Supreme Court briefMay 21, 2020

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No. 19-547

In the Supreme Court of the United States

UNITED STATES FISH AND WILDLIFE SERVICE, ET AL.,

PETITIONERS

SIERRA CLUB, INC.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOINT APPENDIX

NOEL J. FRANCISCO

Solicitor General

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

Counsel of Record

for Petitioner

SANJAY NARAYAN

Sierra Club Environmental

Law Program

2101 Webster Street

Suite 1300

Oakland, CA 94612

sanjay.narayan@sierraclub.org

(415) 977-5769

Counsel of Record

for Respondent

PETITION FOR A WRIT OF CERTIORARI FILED: OCT. 25, 2019

CERTIORARI GRANTED: MAR. 2, 2020

TABLE OF CONTENTS

Page

Court of appeals docket entries (17-16560) ............................... 1

District court docket entries (15-cv-05872) ............................. 13

Declaration of Samuel D. Rauch, III, NMFS ......................... 30

Declaration of Gary Frazer, FWS ............................................ 56

Amended complaint for declaratory and injunctive relief

(Mar. 22, 2015) ......................................................................... 73

Emails among Helen Golde, NMFS and Nancy Stoner,

EPA / Rick Sayers, FWS and Robert Wood, EPA

(Oct. 2013) ................................................................................. 88

Emails among NMFS staff (Dec. 2-3, 2013) ............................ 93

Emails among EPA staff (Dec. 3, 2013) ................................. 102

Email among FWS staff (Dec. 9, 2013) .................................. 105

Emails among Ted Boling, FWS and Avi Garbow, EPA

(Dec. 12, 2013) / Lois Schiffer, NMFS and EPA staff

(Dec. 17, 2013) ........................................................................ 106

Excerpt of Endangered Species Act Section 7 Consultation Programmatic Biological Opinion on the U.S.

Environmental Protection Agency’s Issuance

and Implementation of the Final Regulations Section 316(b) of the Clean Water Act (May 19, 2014) ............ 110

(I)

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Docket No. 17-16560

SIERRA CLUB, INC., PLAINTIFF-APPELLEE

UNITED STATES FISH AND WILDLIFE SERVICE AND

NATIONAL MARINE FISHERIES SERVICE,

DEFENDANTS-APPELLANTS

DOCKET ENTRIES

DATE

DOCKET

NUMBER

8/7/17

PROCEEDINGS

DOCKETED CAUSE AND ENTERED APPEARANCES OF

COUNSEL. SEND MQ: Yes.

The schedule is set as follows: Mediation Questionnaire due on

08/14/2017. Appellants National

Marine Fisheries Service and

United States Fish and Wildlife

Service

opening

brief

due

11/13/2017. Appellee Sierra Club,

Inc. answering brief due 12/13/2017.

Appellant’s optional reply brief is

due 21 days after service of the answering brief.

[10534748] (RT)

[Entered: 08/07/2017 09:36 AM]

(1)

DATE

DOCKET

NUMBER

9/21/17

9/26/17

10/13/17

PROCEEDINGS

* * * * *

Filed (ECF) Appellee Sierra Club,

Inc. Unopposed Motion to expedite case.

Date of service:

09/21/2017. [10589715] [17-16560]

(Super, Reed) [Entered: 09/21/2017

03:17 PM]

Filed clerk order (Deputy Clerk:

LK): Appellee’s unopposed motion

(Docket Entry No. [12]) to expedite is granted. This case will be

calendared as soon as possible upon

completion of briefing. The opening brief is due October 13, 2017;

the answering brief is due November 13, 2017; and the optional reply

brief is due within 21 days after service of the answering brief. The

parties shall refrain from seeking

any streamlined extension of time

to file a brief. Any motion for an

extension of time to file a brief pursuant to Ninth Circuit Rule 312.2(b) shall be accompanied by a

showing of compelling circumstances.

[10594316] (OC) [Entered: 09/26/2017 10:46 AM]

Submitted (ECF) Opening Brief

for review. Submitted by Appellants NMFS and United States

Fish and Wildlife Service. Date

DATE

10/13/17

DOCKET

NUMBER

11/13/17

11/20/17

PROCEEDINGS

of service: 10/13/2017. [10617893]

[17-16560] (Pulham, Thomas) [Entered: 10/13/2017 04:54 PM]

Submitted (ECF) excerpts of record.

Submitted by Appellants

NMFS and United States Fish and

Wildlife Service. Date of service:

10/13/2017. [10617902] [17-16560]

(Pulham,

Thomas)

[Entered:

10/13/2017 04:58 PM]

* * * * *

Submitted (ECF) Answering Brief

for review. Submitted by Appellee Sierra Club, Inc.. Date of service:

11/13/2017.

[10651212]

[17-16560] (Super, Reed) [Entered:

11/13/2017 12:14 PM]

Submitted (ECF) supplemental excerpts of record. Submitted by

Appellee Sierra Club, Inc.. Date

of service: 11/13/2017. [10651244]

[17-16560] (Super, Reed) [Entered:

11/13/2017 12:27 PM]

* * * * *

Submitted (ECF) Amicus brief for

review (by government or with consent per FRAP 29(a)). Submitted

by Union of Concerned Scientists.

Date of service: 11/20/2017.

[10661177] [17-16560] —[COURT

DATE

DOCKET

NUMBER

PROCEEDINGS

UPDATE:

Attached corrected

brief. 11/21/2017 by SLM] (Goho,

Shaun) [Entered:

11/20/2017

01:59 PM]

12/18/17

2/5/18

* * * * *

Submitted (ECF) Reply Brief for

review. Submitted by Appellants

NMFS and United States Fish and

Wildlife Service. Date of service:

12/18/2017. [10694682] [17-16560]

(Pulham,

Thomas)

[Entered:

12/18/2017 03:03 PM]

* * * * *

Filed clerk order (Deputy Clerk:

OC): Defendants-Appellants are

directed to submit the twelve documents that the district court held,

after in camera review, must be

disclosed in full or in part (NMFS

44516.1, FWS 252, NMFS 5427.1,

FWS 279, FWS 308, FWS 555,

NMFS 61721, NMFS 5597.1,

NMFS 7544.2, NMFS 37695,

NMFS 37667, NMFS 14973.1) for

review by this Court in camera and

under seal using the event “Notice

of Filing Document under Seal and

Submit

Sealed

Document.”

[10751723]

(OC)

[Entered:

02/05/2018 01:56 PM]

DATE

DOCKET

NUMBER

2/13/18

3/15/18

PROCEEDINGS

Filed (ECF) IN CAMERA and

UNDER SEAL Appellants NMFS

and United States Fish and Wildlife Service notice of filing document under seal. Type of document: other (Documents requested by the Court’s Order of February

5, 2018.).

Date of service:

02/13/2018. [10762960] [17-16560]

(Pulham,

Thomas)

[Entered:

02/13/2018 04:15 PM]

Filed IN CAMERA and UNDER

SEAL Appellants NMFS and

United States Fish and Wildlife

Service exhibits requested by the

Court’s Order of February 5, 2018.

Served on 02/13/2018 (Document

previously submitted in [40]).

[10763033]

(SML)

[Entered:

02/13/2018 04:38 PM]

ARGUED AND SUBMITTED TO

J. CLIFFORD WALLACE, MARSHA S. BERZON and TERRENCE BERG.

[10800013]

(Learned,

Glen)

[Entered:

03/15/2018 02:23 PM]

Filed Audio recording of oral argument.

Note: Video recordings of public

argument calendars are available

DATE

DOCKET

NUMBER

8/3/18

8/10/18

12/3/18

12/6/18

PROCEEDINGS

on the Court’s website, at http://

www.ca9.uscourts.gov/media/

[10801959]

(DO)

[Entered:

03/16/2018 02:33 PM]

Filed (ECF) Appellants NMFS

and United States Fish and Wildlife Service citation of supplemental authorities. Date of service:

08/03/2018.

[10964930]

[17-16560] (Pulham, Thomas) [Entered: 08/03/2018 09:38 AM]

Filed (ECF) Appellee Sierra Club,

Inc. citation of supplemental authorities.

Date of service:

08/10/2018. [10973071] [17-16560]

(Super,

Reed)

[Entered:

08/10/2018 11:20 AM]

* * * * *

Filed SEALED order (J. CLIFFORD WALLACE, MARSHA S.

BERZON

and

TERRENCE

BERG) (SEE ORDER FOR FULL

TEXT).

All counsel served via

email.

[11106444] (RMM) [Entered: 12/03/2018 09:47 AM]

Filed (ECF) UNDER SEAL Appellee Sierra Club, Inc. motion to

file document under seal and submit sealed document.

Type of

document: other (Letter). Date

of service: 12/06/2018. [11112559]

DATE

DOCKET

NUMBER

12/7/18

12/21/18

PROCEEDINGS

[17-16560]—[COURT UPDATE:

Attached corrected motion and

brief. 12/7/2018 by TYL] (Super,

Reed) [Entered: 12/06/2018 02:02

PM]

Filed Appellee Sierra Club, Inc.

motion to file document UNDER

SEAL.

Deficiencies:

None.

Served on 12/06/2018. (Court entered filing, originally submitted in

[49]) [11113448] (KWG) [Entered:

12/07/2018 08:42 AM]

Submitted (ECF) UNDER SEAL

Letter Brief for review. Submitted by Appellee Sierra Club, Inc..

Date of service: 12/06/2018.

(Court-entered filing, brief originally submitted in [49].) [11113470]

(KWG) [Entered:

12/07/2018

08:47 AM]

Filed order (J. CLIFFORD WALLACE, MARSHA S. BERZON

and TERRENCE BERG) Plaintiff-Appellee’s motion to seal its

letter

brief

granted.

[11129668]

(OC)

[Entered:

12/21/2018 08:56 AM]

FILED OPINION (J. CLIFFORD

WALLACE, MARSHA S. BERZON and TERRENCE BERG)

DATE

DOCKET

NUMBER

PROCEEDINGS

For the foregoing reasons the district court’s order to produce the

December 2013 draft jeopardy biological opinions (NMFS 44516.1

and FWS 252), the March 2014

RPA (FWS 555), and the remaining statistical and instructional

documents (NMFS 5597.1, NMFS

61721, NMFS 7544.2, NMFS

37695, NMFS 37667, NMFS

14973.1) is AFFIRMED because

the record shows that these materials are not both pre-decisional

and deliberative and therefore not

exempt under § 522(b)(5) of FOIA,

Exemption 5. The district court’s

order to produce the December

2013 RPAs (FWS 279, 308) and the

April 2014 draft jeopardy opinion

(NMFS 5427.1) is REVERSED because these materials are both predecisional and deliberative and

thus exempt from disclosure under

FOIA Exemption 5. The parties

agree that reversal would require

the district court to perform a segregability analysis on remand.

We instruct the district court to

perform that analysis. The case

is REMANDED for further proceedings consistent with this opin-

DATE

DOCKET

NUMBER

PROCEEDINGS

ion. Opinion by Judge Berg; Partial Concurrence and Partial Dissent by Judge Wallace. FILED

AND ENTERED JUDGMENT.

[11129820]

(MM)

[Entered:

12/21/2018 09:33 AM]

12/21/18

1/24/19

3/11/19

* * * * *

Filed clerk order (Deputy Clerk:

MM):

At the direction of the

Court, the parties shall bear their

own costs. [11131184] (MM) [Entered: 12/21/2018 02:47 PM]

* * * * *

Filed text clerk order (Deputy

Clerk: WL): Appellants NMFS

and United States Fish and Wildlife Service Unopposed Motion to

stay appellate proceedings (Docket

Entry No. [57]) is granted.

[11164746]

(WL)

[Entered:

01/24/2019 10:14 AM]

* * * * *

Filed (ECF) Appellants NMFS

and United States Fish and Wildlife Service petition for panel rehearing and petition for rehearing

en banc (from 12/21/2018 opinion).

Date of service:

03/11/2019.

[11223577] [17-16560] (Pulham,

DATE

DOCKET

NUMBER

4/1/19

4/22/19

5/30/19

PROCEEDINGS

Thomas) [Entered:

03/11/2019

04:30 PM]

Filed order (J. CLIFFORD WALLACE, MARSHA S. BERZON

and TERRENCE BERG) Within

21 days from the filing of this order, Plaintiff-Appellee is directed

to file a response to the petition for

panel rehearing and petition for rehearing en banc (Docket Entry No.

[63]). The response shall comply

with Federal Rule of Appellate

Procedure 32 and Ninth Circuit

Rule 40-1. [11248541] (WL) [Entered: 04/01/2019 01:41 PM]

Filed (ECF) Appellee Sierra Club,

Inc. response opposing Combo

PFR Panel and En Banc (ECF Filing), Combo PFR Panel and En

Banc (ECF Filing). Date of service:

04/22/2019. [11271374].

[17-16560]—[COURT UPDATE:

Updated docket text to reflect content of filing. 4/22/2019 by TYL]

(Super,

Reed)

[Entered:

04/22/2019 08:45 AM]

Filed order and amended opinion

(J.

CLIFFORD

WALLACE,

MARSHA S. BERZON and TERRENCE BERG) Amending Dispo-

DATE

5/31/19

DOCKET

NUMBER

PROCEEDINGS

sition Opinion AFFIRMED REVERSED; REMANDED.

The

Opinion filed December 21, 2018

and reported at 911 F.3d 967 is

hereby amended. The amended

opinion will be filed concurrently

with this order. A majority of the

panel has voted to deny the petition

for panel rehearing.

The full

court was advised of the petition

for rehearing en banc. No judge

requested a vote on whether to rehear the matter en banc pursuant

to Fed. R. App. P. 35(f ). The petition for panel rehearing and the

petition for rehearing en banc are

DENIED. Future petitions for

rehearing or rehearing en banc will

not be entertained in this case.

[11313046]

(RMM)

[Entered:

05/30/2019 09:29 AM]

Filed (ECF) Appellee Sierra Club,

Inc. Unopposed Motion for miscellaneous relief [Motion under Circuit Rule 39-1.8 to transfer consideration of attorneys fees on appeal

to district court]. Date of service:

05/31/2019. [11314708] [17-16560]

(Super,

Reed)

[Entered:

05/31/2019 07:45 AM]

DATE

DOCKET

NUMBER

6/7/19

6/17/19

PROCEEDINGS

MANDATE ISSUED.

(JCW,

MSB and TGB) [11322999] (RL)

[Entered: 06/07/2019 08:49 AM]

Filed order (J. CLIFFORD WALLACE, MARSHA S. BERZON

and TERRENCE BERG) Appellee’s unopposed motion to transfer

consideration of attorneys’ fees

and litigation costs on appeal to the

district court is granted (Dkt. No.

[67]).

See Circuit Rule 39-1.8.

[11333068]

(WL)

[Entered:

06/17/2019 08:56 AM]

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

(SAN FRANCISCO)

Docket No. 3:15-cv-05872-EDL

SIERRA CLUB, INC., PLAINTIFF

UNITED STATES FISH AND WILDLIFE SERVICE AND

NATIONAL MARINE FISHERIES SERVICE, DEFENDANTS

DOCKET ENTRIES

DATE

DOCKET

NUMBER

12/21/15

1/27/16

PROCEEDINGS

COMPLAINT against National

Marine Fisheries Service. Filed

by Sierra Club, Inc. Receipt No.

0971-10081040, $400.00. (Attachments: # 1 Exhibit A, # 2 Exhibit

B, # 3 Exhibit C, # 4 Exhibit D, #

5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit

I, # 10 Exhibit J, # 11 Exhibit K,

# 12 Exhibit L, # 13 Civil Cover

Sheet) (Super, Reed) (Filed on

12/21/2015) Modified on 12/21/2015

(cj1S, COURT STAFF).

(Entered: 12/21/2015)

* * * * *

ANSWER to 1 Complaint by National Marine Fisheries Service.

(Garbers, Wendy) (Filed on

DATE

DOCKET

NUMBER

PROCEEDINGS

1/27/2016) Modified on 1/28/2016

(aaaS, COURT STAFF).

(Entered: 01/27/16)

3/15/16

3/22/16

* * * * *

CASE MANAGEMENT STATEMENT (Joint) filed by National

Marine Fisheries Service. (Garbers, Wendy) (Filed on 3/15/2016)

(Entered on 3/15/2016)

AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF; against All Defendants. Filed by Sierra Club,

Inc. (Attachments: # 1 Exhibit

A, # 2 Exhibit B # 3 Exhibit C,

# 4 Exhibit D, # 5 Exhibit E, # 6

Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit

J, # 11 Exhibit K, # 12 Exhibit L,

# 13 Exhibit M, # 14 Exhibit N, #

15 Exhibit O) (Super, Reed) (Filed

on 3/22/2016) Modified on 3/23/2016

(aaaS, COURT STAFF).

(Entered: 03/22/2016)

3/22/16

Minute Entry for case management

conference held before Magistrate

Judge Elizabeth D. Laporte on

3/22/2016.

Plaintiff to file an

amended complaint on 3/22/2016.

DATE

DOCKET

NUMBER

PROCEEDINGS

Current defendant to complete

FOIA production by 4/8/2016. A

further case management conference is set for 6/7/2016 at 10:00 am in

Courtroom E, 15th floor, San Francisco. An updated case management statement shall be filed by

5/31/2016.

FTR Time 10:23 - 10:27

Plaintiff

Attorneys:

Nicholas

Jimenez and Reed Super (telephonic appearance)

Defendant Attorney:

bers

Wendy Gar-

This is a text only Minute Entry

(shyS, COURT STAFF) (Date Filed:

3/22/2016) (Entered: 03/22/2016)

4/22/16

8/15/16

* * * * *

ANSWER to 18 Amended Complaint by National Marine Fisheries Service, United States Fish and

Wildlife Service.

(Garbers,

Wendy) (Filed on 4/22/2016) Modified on 4/25/2016 (aaaS, COURT

STAFF). (Entered: 04/22/2016)

* * * * *

CASE MANAGEMENT STATEMENT (Joint) filed by National

Marine Fisheries Service, United

DATE

DOCKET

NUMBER

PROCEEDINGS

States Fish and Wildlife Service.

(Garbers, Wendy) (Filed on

8/15/2016) (Entered: 08/15/2016)

8/23/16

Minute Entry for further case management conference held

8/23/2016 before Magistrate Judge

Elizabeth D. Laporte. On or before

9/16/2016, the defendant shall provide Plaintiff with a supplemental

privilege log providing additional

detail with respect to the entries

identified by plaintiff. Plaintiff to

identify the documents at issue for

summary judgment by 9/30/2016.

Parties to submit a joint proposal to

the Court regarding a proposed

summary judgment briefing schedule by 10/14/2016.

FTR Time:

10:16 - 10:18

Plaintiff Attorneys: Katie Schaefer

and Reed Super (telephonic appearance)

Defendant Attorney:

bers

Wendy Gar-

This is a text only Minute Entry

(shyS, COURT STAFF) (Date

Filed:

8/23/2016)

(Entered:

08/23/2016)

10/13/16

JOINT CASE MANAGEMENT

STATEMENT

Summary

DATE

DOCKET

NUMBER

PROCEEDINGS

Judgment filed by United States

Fish and Wildlife Service. (Garbers, Wendy) (Filed on 10/13/2016)

(Entered: 10/13/2016)

10/18/16

12/1/16

ORDER Adopting Joint Proposal

Re Summary Judgment Schedule

signed by Magistrate Judge Elizabeth D. Laporte. (shyS, COURT

STAFF) (Filed on 10/18/2016) (Entered: 10/18/2016)

* * * * *

MOTION for Summary Judgment

filed by Sierra Club, Inc.. Motion

Hearing set for 5/23/2017 09:00 AM

in Courtroom E, 15th Floor, San

Francisco before Magistrate Judge

Elizabeth D. Laporte. Responses

due by 2/13/2017. Replies due by

3/17/2017.

(Attachments: # 1

Proposed Order) (Super, Reed)

(Filed on 12/1/2016) (Entered:

12/01/2016)

Declaration of Reed W. Super in

Support of 40 MOTION for Summary Judgment filed by Sierra

Club, Inc.. (Attachments: # 1

Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4

Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7

DATE

2/13/17

DOCKET

NUMBER

PROCEEDINGS

Exhibit Exhibit 7, # 8 Exhibit Exhibit 8, # 9 Exhibit Exhibit 9, # 10

Exhibit Exhibit 10, # 11 Exhibit

Exhibt 11, # 12 Exhibit Exhibit 12,

# 13 Exhibit Exhibit 13, # 14 Exhibit Exhibit 14, # 15 Exhibit Exhibit 15, # 16 Exhibit Exhibit 16, #

17 Exhibit Exhibit 17, # 18 Exhibit

Exhibit 18, # 19 Exhibit Exhibit

19, # 20 Exhibit Exhibit 20, # 21

Exhibit Exhibit 21, # 22 Exhibit

Exhibit 22, # 23 Exhibit Exhibit

23) (Related document(s) 40) (Super, Reed) (Filed on 12/1/2016)

(Entered: 12/01/2016)

MOTION for Summary Judgment

Defendants’ Cross Motion for

Summary Judgment and Opposition to Plaintiff ’s Summary Judgment Motion; Memorandum of

Points and Authorities filed by

National Marine Fisheries Service,

United States Fish and Wildlife

Service.

Motion

Hearing

set for 5/23/2017 09:00 AM before

Magistrate Judge Elizabeth D.

Laporte.

Responses due by

3/17/2017.

Replies due by

4/21/2017.

(Garbers, Wendy)

(Filed on 2/13/2017) (Entered:

02/13/2017)

DATE

DOCKET

NUMBER

2/13/17

PROCEEDINGS

Declaration of Gary Frazer in Support of 42 MOTION for Summary

Judgment Defendants’ Cross Motion for Summary Judgment and

Opposition to Plaintiff ’s Summary Judgment Motion; Memorandum of Points and Authorities

Declaration of Gary Frazer filed

by National Marine Fisheries Service, United States Fish and Wildlife

Service. (Attachments: # 1 Exhibit Exhibit A) (Related document(s) 42) (Garbers, Wendy)

(Filed on 2/13/2017) (Entered:

02/13/2017)

Declaration of Samuel D. Rauch,

III in Support of 42 MOTION for

Summary Judgment Defendants’

Cross Motion for Summary Judgment and Opposition to Plaintiff’s

Summary Judgment Motion; Memorandum of Points and Authorities

Declaration of Samuel D. Rauch,

III filed by National Marine Fisheries Service, United States Fish

and Wildlife Service. (Related document(s)

42)

(Garbers, Wendy) (Filed on 2/13/2017)

(Entered: 02/13/2017)

DATE

DOCKET

NUMBER

3/31/17

5/5/17

PROCEEDINGS

OPPOSITION/RESPONSE

(re

40 MOTION for Summary Judgment, 42 MOTION for Summary

Judgment Defendants’ Cross Motion for Summary Judgment and

Opposition to Plaintiff ’s Summary Judgment Motion; Memorandum of Points and Authorities) Opposition to Defendants’

Cross Motion for Summary Judgment and Reply to Defendants’

Opposition to Plaintiff ’s Motion

for Summary Judgment filed by

Sierra Club, Inc.. (Attachments:

# 1 Proposed Order Updated) (Super, Reed) (Filed on 3/31/2017) (Entered: 03/31/2017)

Declaration of Reed W. Super in

Support

Opposition/

Response to Motion,, filed by Sierra Club, Inc.. (Attachments: #

1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit

E, # 6 Exhibit F, # 7 Exhibit G)

(Related document(s) 47) (Super,

Reed) (Filed on 3/31/2017) (Entered: 03/31/2017)

REPLY (re 42 MOTION for Summary Judgment Defendants’ Cross

Motion for Summary Judgment

and Opposition to Plaintiff ’s Sum-

DATE

DOCKET

NUMBER

5/5/17

6/6/17

PROCEEDINGS

mary Judgment Motion; Memorandum of Points and Authorities)

filed by National Marine Fisheries

Service, United States Fish and

Wildlife Service. (Garbers, Wendy)

(Filed on 5/5/2017) (Entered:

05/05/2017)

Proposed Order re 40 MOTION for

Summary Judgment, 42 MOTION

for Summary Judgment Defendants’ Cross Motion for Summary

Judgment and Opposition to

Plaintiff ’s Summary Judgment

Motion; Memorandum of Points

and Authorities by National Marine Fisheries Service, United

States Fish and Wildlife Service.

(Garbers, Wendy) (Filed on

5/5/2017) (Entered: 05/05/2017)

Minute Entry for proceedings

held on 6/6/2017 before Magistrate

Judge Elizabeth D. Laporte regarding the cross motions for summary judgment. By 6/13/2017, Defendants shall lodge in camera the

December 2013 Biological Opinions

and RPAs, and Parties shall file

joint statement with description

of lodged documents and summary of which records remain in

dispute.

DATE

DOCKET

NUMBER

PROCEEDINGS

FTR Time 9:06 - 9:36

Plaintiff Attorneys:

and Katie Schaefer

Defendant

Garbers

Attorney:

Reed Super

Wendy

This is a text-only Minute Entry

(shyS, COURT STAFF) (Date

Filed:

6/6/2017) Modified on

9/20/2017: Matter transcribed by

Tara Bauer (ECHO Reporting).

(rjdS, COURT STAFF).

(Entered: 06/06/2017)

6/13/17

JOINT CASE MANAGEMENT

STATEMENT filed by National

Marine Fisheries Service, United

States Fish and Wildlife Service.

(Garbers, Wendy) (Filed on

6/13/2017) (Entered: 06/13/2017)

6/23/17

7/24/17

ORDER RE: In Camera Review

by Magistrate Judge Elizabeth D.

Laporte. (shyS, COURT STAFF)

(Filed on 6/23/2017) (Entered:

06/23/2017)

ORDER Following In Camera Review by Magistrate Judge Elizabeth D. Laporte. (shyS, COURT

STAFF) (Filed on 7/24/2017) (Entered: 07/24/2017)

DATE

DOCKET

NUMBER

7/24/17

7/28/17

7/31/17

8/1/17

PROCEEDINGS

JUDGMENT by Magistrate Judge

Elizabeth D. Laporte.

(shyS,

COURT

STAFF)

(Filed

7/24/2017) (Entered: 07/24/2017)

* * * * *

ADMINISTRATIVE

MOTION

Stay Pending Appeal re 54 Order

filed by National Marine Fisheries

Service, United States Fish and

Wildlife Service. Responses due

by 8/2/2017.

(Garbers, Wendy)

(Filed on 7/28/2017) (Entered:

07/28/2017)

STIPULATION WITH PROPOSED ORDER re 58 ADMINISTRATIVE MOTION Stay Pending

Appeal re 54 Order, 54 Order filed

by National Marine Fisheries Service, United States Fish and Wildlife Service.

(Garbers, Wendy)

(Filed on 7/31/2017) (Entered:

07/31/2017)

STIPULATION AND ORDER re

One-Week Extension of August 7,

2017 Production Deadline and

Plaintiff ’s Response to Motion to

Stay signed by Magistrate Judge

Elizabeth D. Laporte: granting 59

Stipulation. (shyS, COURT STAFF)

(Filed on 8/1/2017) (Entered:

08/01/2017)

DATE

DOCKET

NUMBER

8/2/17

8/3/17

8/4/17

PROCEEDINGS

OPPOSITION/RESPONSE (re 58

ADMINISTRATIVE

MOTION

Stay Pending Appeal re 54 Order)

filed by Sierra Club, Inc.. (Super,

Reed) (Filed on 8/2/2017) (Entered: 08/02/2017)

REPLY (re 58 ADMINISTRTIVE

MOTION Stay Pending Appeal re

54 Order) filed by National Marine

Fisheries Service, United States

Fish and Wildlife Service. (Garbers, Wendy) (Filed on 8/3/2017)

(Entered: 08/03/2017)

Proposed Order re 58 ADMINISTRATIVE MOTION Stay Pending

Appeal re 54 Order by National

Marine Fisheries Service, United

States Fish and Wildlife Service.

(Garbers, Wendy) (Filed on

8/3/2017) (Entered: 08/03/2017)

NOTICE OF APPEAL to the 9th

Circuit Court of Appeals re 55

Judgment; filed by National Marine Fisheries Service, United

States Fish and Wildlife Service.

(Appeal fee FEE WAIVED.) (Attachments:

# 1 Exhibit A,

# 2 Exhibit B) (Garbers, Wendy)

(Filed on 8/4/2017) Modified on

8/8/2017 (aaaS, COURT STAFF).

(Additional attachment(s) added on

DATE

DOCKET

NUMBER

PROCEEDINGS

8/9/2017: # 3 USCA NUMBER 1716560) (aaa, COURT STAFF).

(Entered: 08/04/2017)

8/10/17

8/22/17

ORDER EXTENDING AUGUST 14,

2017 PRODUCTION DEADLINE

TO AUGUST 24, 2017. Signed by

Magistrate Judge Elizabeth D.

Laporte on 8/10/17. (klhS, COURT

STAFF) (Filed on 8/10/2017) (Entered: 08/10/2017)

Minute Entry for proceedings held

on 8/22/2017 before Magistrate

Judge Elizabeth D. Laporte regarding motion to stay. The production

deadline is extended to 9/6/2017.

The parties shall file a joint submission by 9/6/2017.

The joint submission shall address the parties’

respective

positions

regarding

whether the requested stay should

apply to the five documents identified by the Court during the hearing. In addition, the joint submission should address the 9th Circuit’s

standard for expediting appeal.

FTR Time 1:50 - 2:06

Plaintiff Attorneys: Katie Schaefer

and Reed Super (telephonic appearance)

DATE

DOCKET

NUMBER

PROCEEDINGS

Defendant Attorney:

bers

Wendy Gar-

This is a text-only Minute Entry

(shyS, COURT STAFF) (Date Filed:

8/22/2017) (Entered: 08/23/2017)

9/1/17

STIPULATION WITH PROPOSED ORDER re 58 ADMINISTRATIVE MOTION Stay Pending

Appeal re 54 Order, 68 Motion

Hearing,, filed by National Marine

Fisheries Service, United States

Fish and Wildlife Service. (Garbers, Wendy) (Filed on 9/1/2017)

(Entered: 09/01/2017)

9/5/17

STIPULATION AND ORDER Re

Stay Pending Appeal signed by

Magistrate Judge Elizabeth D.

Laporte: granting 69 Stipulation.

(shyS, COURT STAFF) (Filed on

9/5/2017) (Entered: 09/05/2017)

9/26/17

* * * * *

Transcript of Proceedings of the

official sound recording held on

06/06/17, before Magistrate Judge

Elizabeth D. Laporte. FTR/ Transcriber Echo Reporting, Inc., telephone number 8584537590. Tape

Number: FTR 9:06 - 9:36. Per

General Order No. 59 and Judicial

Conference policy, this transcript

DATE

DOCKET

NUMBER

PROCEEDINGS

may be viewed only at the Clerk’s

Office public terminal or may be

purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript

Restriction.

After that date it

may be obtained through PACER.

Any Notice of Intent to Request

Redaction, if required, is due no

later than 5 business days from

date of fling. (Re 71 Transcript

Order,) Redaction Request due

10/17/2017. Redacted Transcript

Deadline set for 10/27/2017. Release of Transcript Restrictions set

for 12/26/2017.

(Related docuCOURT

ments(s)

71)

(tgb,

STAFF) (Filed on 9/26/2017) (Entered: 09/26/2017)

2/1/19

2/4/19

* * * * *

STIPULATION WITH PROPOSED ORDER filed by Fish and

Wildlife Service, National Marine

Fisheries Service.

(Garbers,

Wendy) (Filed on 2/1/2019) (Entered: 02/01/2019)

STIPULATION AND ORDER re

Clarification of Stays Pending Appeal signed by Magistrate Judge

Elizabeth D. Laporte: granting 74

Stipulation.

(shyS,

COURT

DATE

DOCKET

NUMBER

PROCEEDINGS

STAFF) (Filed on 2/4/2019) (Entered: 02/04/2019)

6/4/19

6/5/19

6/17/19

* * * * *

STIPULATION WITH PROPOSED ORDER filed by National

Marine Fisheries Service, United

States Fish and Wildlife Service.

(Garbers, Wendy) (Filed on

6/4/2019) (Entered: 06/04/2019)

STIPULATION AND ORDER Re

Deadlines signed by Magistrate

Judge Elizabeth D. Laporte: granting 80 Stipulation. (shyS, COURT

STAFF) (Filed on 6/5/2019) (Entered: 06/05/2019)

* * * * *

STIPULATION WITH PROPOSED ORDER Re Further Segregability Analysis filed by National Marine Fisheries Service,

United States Fish and Wildlife

Service.

(Garbers, Wendy)

(Filed on 6/17/2019) (Entered:

06/17/2019)

6/18/19

STIPULATION AND ORDER Re

Further Segregability Analysis

signed by Magistrate Judge Elizabeth D. Laporte: granting 83 Stipulation. (shyS, COURT STAFF)

DATE

DOCKET

NUMBER

PROCEEDINGS

(Filed on

06/18/2019)

6/18/2019)

(Entered:

8/12/19

STIPULATION WITH PROPOSED ORDER filed by United

States Fish and Wildlife Service.

(Garbers, Wendy) (Filed on

8/12/2019) (Entered: 08/12/2019)

9/25/19

ORDER Re Further Segregability

Analysis signed by Magistrate

Judge Elizabeth D. Laporte: granting 86 Stipulation. (shyS, COURT

STAFF) (Filed on 8/12/2019) (Entered: 08/12/2019)

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

Case No. 15-cv-05872 EDL

SIERRA CLUB, INC., PLAINTIFF

NATIONAL MARINE FISHERIES SERVICE AND UNITED

STATES FISH AND WILDLIFE SERVICE, DEFENDANTS

DECLARATION OF SAMUEL D. RAUCH, III

I, Samuel D. Rauch, III, do hereby declare the following:

1. I am currently the Acting Assistant Administrator for the National Marine Fisheries Service

(“NMFS”), a component of the National Oceanic and Atmospheric Administration (“NOAA”), and in 2012 and

2013 I also performed the duties and functions of the Assistant Administrator. Since 2006, I have served as the

Deputy Assistant Administrator for Regulatory Programs for NMFS. In that capacity I oversee NMFS regulatory actions and programs. This includes consultations under the Endangered Species Act (“ESA”), 16

U.S.C. §§ 1531 et seq, on actions authorized, funded or

carried out by Federal agencies, to assist the agencies

in meeting their ESA Section 7(a)(2) obligation to insure

that their actions are not likely to jeopardize species

listed as threatened or endangered under the ESA and

not likely to destroy or adversely modify critical habitat

designated for those species. I make this declaration

based on personal knowledge and information available

to me in my capacity as the Acting Assistant Administrator for NMFS and Deputy Assistant Administrator

for Regulatory Programs for NMFS.

2. Prior to my roles as Acting Assistant Administrator and Deputy Assistant Administrator for Regulatory Programs, I served as the Assistant General Counsel for Fisheries, as head of the office providing legal

counsel to NMFS. Previously, I served as a trial attorney and then Assistant Section Chief for the Wildlife

and Marine Resources Section of the Environment and

Natural Resources Division of the U.S. Department of

Justice.

3. I hold a J.D. from the Northwestern School of

Law of Lewis & Clark College, a M.S. from the University of Georgia, and a B.A. from the University of Virginia.

4. As required by Section 7(a)(2) of the ESA, the

Environmental Protection Agency (“EPA”) consulted

with NMFS and the US Fish and Wildlife Service

(“FWS”) (collectively “the Services”) to insure that

EPA’s regulation (“Regulation”) for cooling water intakes (“CWIS”), issued pursuant to Section 316(b) of the

Clean Water Act, is not likely to jeopardize the continued existence of species listed as endangered or threatened under the ESA or to destroy or adversely modify

their critical habitat. ESA Section 7(b)(3) requires

that at the end of consultation one or both Services, depending on the species and habitat affected, provide a

biological opinion on whether the action complies with

the mandate of Section 7(a)(2). If the Services conclude that a proposed action will not comply with the

Section 7(a)(2) standard, the Services include a reasonable and prudent alternative (“RPA”) that will allow the

action to proceed in compliance. If the Services conclude that the action will meet the Section 7(a)(2) standard, no RPA is required or included in the biological

opinion. Pursuant to ESA Section 7(b)(4), the Services

include in a biological opinion an incidental take statement (“ITS”) that specifies the impact to listed species,

reasonable and prudent measures (“RPMs”) necessary or

appropriate to minimize that impact, and terms and conditions (“T&Cs”) to implement the RPMs.

5. The consultation on EPA’s Regulation presented

multiple complex and novel issues for all three agencies,

NMFS, FWS and EPA. None of the agencies had previously participated in an ESA Section 7(a)(2) consultation on earlier EPA regulations implementing Section

316(b). During the almost two years of the consultation process, personnel from all three agencies met routinely, sometimes more than once a week. In addition

to these meetings, there were multiple conference calls

and many emails involving one, two or all three agencies.

During the frank discussions over this lengthy period,

multiple options for the Regulation and the biological

opinion were considered, reconsidered, with most being

rejected. Multiple pre-decisional drafts of the Regulation, the biological opinion, and portions of those documents, as well as briefing and options papers, were circulated intra- and interagency. Multiple comments and

suggestions were exchanged, often by several people on

the same document, and sometimes those comments and

suggestions conflicted. Documents were revised on

the author’s own initiative or in response to comments

and then recirculated. NMFS and FWS generated

many drafts of the biological opinion during that internal and interagency discussion. In addition, the Services for much of this time were each writing their own

separate opinions, but determined ultimately to issue a

joint opinion.

6. At the conclusion of that consultation, on May

19, 2014, Donna Wieting, Director of NMFS Office of

Protected Resources co-signed, with Paul Souza of

FWS, Endangered Species Act Section 7 Consultation

Programmatic Biological Opinion on the U.S. Environmental Protection Agency’s Issuance and Implementation of the Final Regulations Section 316(b) of the Clean

Water Act (“Opinion”). The Services concluded in the

Opinion that EPA’s issuance of the Regulation was not

likely to jeopardize the continued existence of listed species or destroy or adversely modify their designated

critical habitat. Although within NMFS the signing of

biological opinions issued in NMFS headquarters is delegated to the Director of the Office of Protected

Resources, I also participated in many meetings and

conference calls, both internal and interagency, and

reviewed the Opinion. I am personally familiar with

the consultation and the issues that arose.

7. On August 11, 2014, Sierra Club filed a Freedom

of Information Act (“FOIA”) (5 U.S.C. § 552) request

with NMFS. The request was extraordinarily broad

and sought documents the vast majority of which are

protected under the deliberative process privilege,

attorney-client communication privilege, attorney work

product, and FOIA (b)(5), and not subject to disclosure

under FOIA:

(1) All NMFS drafts of all or portions of the Endangered Species Act Section 7 Consultation Programmatic Biological Opinion on the U.S. Environmental Protection Agency’s Issuance and Implementation of the Final Regulations Section 316(b) of the

Clean Water Act (the “BiOp”), Incidental Take Statement and its appendices;

(2) All documents exchanged between NMFS

staff and within NOAA, and between NOAA/NMFS

and the Environmental Protection Agency (EPA), or

any other governmental agency or official, during interagency review of, and concerning, drafts of the

BiOp and/or Incidental Take Statement;

(3) All documents between NMFS staff and

within NOAA, and between NOAA/NMFS and EPA,

or any other governmental agency or official, concerning the ESA section 7 consultation on EPA’s

most recently proposed 316(b) rule;

(4) All documents serving as the basis for, or

which were considered by, NOAA and/or NMFS in

connection with its “no jeopardy” and/or “no adverse

modification” of critical habitat findings on the ESA

section 7 consultation for the most recently proposed

316(b) rule; including but not limited to: a) any and

all data, documents, communications and records

pertaining to all species of sturgeon, and any opinions

by NMFS staff or others on potential impacts to sturgeon; b) any and all data, documents, communications and records of any type reflecting any changes

to NMFS’ opinions or conclusions concerning its

jeopardy determinations for sturgeon or any other

species; c) any and all identification by NMFS of any

requirements that would have to be met to avoid

jeopardy findings for sturgeon or any other species,

whether or not it was included in the final BiOp or

Incidental Take Statement; d) any draft or proposed

jeopardy opinion that was sent by NMFS to the U.S.

Fish and Wildlife Service, U.S. Environmental Protection Agency, or any other agency, for the sturgeon

or any other species;

(5) If not otherwise produced in response to the

sections above, all documents or communications of

every type between NOAA and/or NMFS and the Office of Management and Budget and/or the Council

on Environmental Quality, and any of the agencies’

personnel, concerning the ESA section 7 consultation

on the 316(b) rule, including but not limited to any records of telephone conversations, emails or meetings

between the agencies or their personnel on this subject, any draft (full or partial) BiOp or Incidental

Take Statements between NMFS, OMB and/ or CEQ

on this subject;

(6) If not otherwise produced in response to the

sections above, all documents or communications of

every type between NOAA and/or NMFS and the

U.S. Fish and Wildlife Service, and any of the agencies’ personnel, concerning the ESA section 7 consultation on the 316(b) Rule, including but not limited to:

a) all communications between NMFS and the FWS

with subject lines including the terms 316(b) or Cooling Water Intake; b) all communications between the

Protected Resources Division of NMFS and Drew

Crane at FWS

(7) All documents between NMFS staff and between NMFS and EPA, or any other governmental

agency or official, concerning any ESA section 7 consultation on EPA’s previously proposed 316(b)

rule(s), including for new sources as well as existing

sources;

(8) All documents exchanged and all documents

related to any meetings, telephone conversations,

emails, or any other communications between

and/or NMFS and the utility (i.e., electric generation) industry or manufacturing industry, representatives of the utility or manufacturing industries,

trade groups, special interest groups, and/or other

nongovernmental parties relating to the ESA section 7 consultation on the 316(b) rule.”

8. In response, NMFS staff conducted an extremely

broad search. NMFS staff queried 74 people from

NOAA and NMFS who had worked in any capacity on

the consultation for their responsive records. In addition, NMFS staff searched the electronic files of people

who had worked on the project but who were no longer

with NMFS. Ultimately, NMFS located 5,724 responsive documents. NMFS released 1,272 documents in

full. I asserted the deliberative process privilege and

released 1,536 documents with redactions of privileged

and non-responsive text, and withheld in full 2,916 documents as privileged.

9. NMFS provided interim responses to this Sierra

Club FOIA on March 3, August 3, September 10,

November 2, and December 11, 2015, and February 4,

February 22, and March 24, 2016. NMFS’ final response was sent April 6, 2016. NMFS released in full

documents that were not subject to any privilege, redacted privileged portions of documents, and withheld

privileged documents in full.

10. Of those documents, NMFS filed a privilege log

for 1,090 of those documents in a separate litigation regarding this same documents. Cooling Water Intake

Structure Coalition et al. v. EPA et al, No. 14-4645(L) and

consolidated cases 14-4657, 14-4659, 14-4664, 14-4667, and

14-4670 (2nd Circuit). Included among the drafts of

the Opinion identified by Plaintiffs is Document

0.7.266.44516.1, a December 6, 2013 NMFS draft opinion, in which NMFS preliminarily concluded that EPA’s

draft of the Regulation in its then-current-form was

likely to jeopardize listed species and destroy or

adversely modify designated critical habitat. Originally, NMFS had agreed to share a draft of its opinion

with EPA by December 6, 2013 and provide its final

opinion by December 20, 2013. However, NMFS never

sent this draft to EPA, because NMFS, FWS and EPA

agreed that more work needed to be done, as EPA was

still considering provisions in the draft Regulation.

NMFS never issued its own opinion, and this document

was never made final.

11. Because the Services preliminarily determined

that the Regulation as then written may be likely to

jeopardize listed species or destroy or adversely modify

critical habitat, the Services also wrote a draft RPA.

Pursuant to ESA Section 7(b)(3)(A), if the Services conclude that an agency action is likely to jeopardize listed

species or destroy or adversely modify critical habitat,

the Services must provide a RPA that would allow the

action to proceed without that result.

Document

0.7.266.44616.1 is one of the drafts of a possible RPA.

Ultimately, based on changes to the Regulation, the Services’ final conclusion, explained in the joint Opinion,

was that the Regulation was not likely to jeopardize the

continued existence of listed species or destroy or

adversely modify their designated critical habitat. In

light of this conclusion, no RPA was required and the

Services did not include any in the Opinion.

12. When NMFS sends action agencies draft BOs

that may be controversial, I occasionally review the

draft document prior to its being transmitted. By

providing a draft for transmission to another agency,

NMFS is not rendering a final decision. The document

remains a draft and is subject to change until final signature. The December 6, 2013, NMFS’ draft opinion

at issue here was clearly not final, as NMFS never issued a separate biological opinion, the final joint Opinion

had substantial changes from NMFS’ December 6, 2013

draft and reached an entirely different conclusion (i.e.,

no jeopardy). Moreover, NMFS never sent its December 6, 2013 draft at issue to EPA.

13. Central to this internal and deliberative process

was the ability of all participants to have the candid and

frank discussions that decision-makers must rely on in

order to make sure all viewpoints and options are considered. I asserted the deliberative process privilege

for these documents in the FOIA response and I continue to assert the privilege here because I do not want

these communications to be in anyway discouraged or

chilled for fear of disclosure. In addition, as some of

these documents reflect positions that NMFS did not

adopt, I do not want to create confusion with their

release or to use NMFS’ resources to defend those

rejected positions.

14. Plaintiffs have identified twenty-four documents

for which they challenge the withholding. Three of the

documents—0.7.266.7026, 0.7.266.7055, 0.7.266.7066—

are parts of an email chain. An identical passage in one

of the three documents was unredacted, but redacted in

the other two. I have instructed that the redactions of

this passage be removed in these two documents. Document 0.7.266.7026 has no remaining redactions and will

be released to the plaintiffs in full, so is not discussed

below. Document 0.7.266.7066 has remaining redactions, but a version without the inconsistent redactions

will he provided to the plaintiffs. In addition, in the

spirit of cooperation, I have instructed that Document

0.7.266.38030 be released in full. I provide additional detail on the twenty-two remaining documents below.

15. I withhold in full Document Number

0.7.266.44516.1 pursuant to the deliberative process

privilege of FOIA exemption (b)(5) (5 U.S.C. § 552(b)(5)).

The document, sent via email by Jennifer Schultz of

NMFS to herself on December 6, 2013, is a draft of the

biological opinion written by NMFS. This early draft,

written more than five months before the Services

issued their joint Opinion, reflects a preliminary analysis of a late 2013 draft of EPA’s Regulation. Because

this draft discusses EPA’s 2013 draft of the Regulation,

the draft reflects EPA’ s deliberative process as well as

that of NMFS.

This preliminary analysis was not

adopted and this draft was never sent to EPA. Ultimately, NMFS abandoned this draft and did not issue

an opinion, instead co-signing the joint Opinion.

Between December 6, 2013 and May 2014 EPA and the

Services communicated frequently, sometimes daily, to

discuss changes to EPA’s Regulation. In their final

joint Opinion, the Services concluded that EPA’s issuance of the Regulation was not likely to jeopardize listed

species or destroy or adversely modify designated critical habitat. This conclusion was based on EPA’s final

Regulation, which differed from EPA’s 2013 draft.

There are no segregable portions for release in this

draft because a biological opinion is not a compilation of

data, but rather a detailed sifting and weighing of information to determine whether an action is likely to jeopardize listed species or destroy or adversely modify critical habitat and how to address uncertainty. The discussion of factual material in this document is generally

intertwined with the analysis such that it is not possible

to reveal the factual material without revealing the

agency’s preliminary analysis.

16. I withhold in full Document Number

0.7.266.44616.1 pursuant to the deliberative process

privilege of FOIA exemption (b)(5) (5 U.S.C.

§ 552(b)(5)). This is a draft of a possible RPA sent via

email from Rick Sayers of FWS to Jennifer Schultz of

NMFS on December 17, 2013. Pursuant to the ESA

Section 7(b)(3) (16 USC § 1536(b)(3)), the Services must

provide a RPA, if any, whenever they determine that a

federal agency action is likely to jeopardize listed species

or destroy or adversely modify critical habitat. The

RPA, if implemented, allows the agency action to proceed in compliance with ESA Section 7(a)(2)’s statutory

requirement that Federal agencies must insure that

actions they authorize, fund or carry out are not likely

to jeopardize listed species or to destroy or adversely

modify critical habitat. Because NMFS’ preliminary

analysis of EPA’s draft of the Regulation, as it existed

in 2013, was that it was likely to jeopardize listed species

and destroy or adversely modify critical habitat, the

Services were considering a draft RPA. This draft was

shared between FWS and NMFS and reflects the agencies’ deliberations on options for a possible RPA for

EPA’s 2013 draft of the Regulation. The draft includes

various comments, questions, and tracked changes of

NMFS agency staff, and the analysis is not complete or

final. Because the Services in their final joint Opinion

concluded that EPA’s action was not likely to jeopardize

listed species or to destroy or adversely modify designated critical habitat, no RPA was necessary and the

draft RPA was abandoned and never finalized. There

are no segregable portions of this document. Because

the Services include RPAs in biological opinions recommending actions for the action agency to take, factual

material is included to provide the rationale for the recommendations, and it is therefore intertwined with the

analysis documenting that the RPA will avoid likely

jeopardy. Discussion of factual material, to the extent

that it existed, is intertwined with the analysis such that

it is not possible to reveal the factual material without

revealing the agency’s preliminary analysis.

17. I withhold in full document number 0.7.266.5427.1

pursuant to the deliberative process privilege of FOIA

exemption (b)(5) (5 U.S.C. § 552(b)(5)). The document

is a NMFS’ April 7, 2014 draft of the biological opinion,

sent via email on April 7, 2014 from Jennifer Schultz of

NMFS to Bridget Crokus, Colette Cairns and Jordan

Carduner of NMFS, a draft that was not sent to EPA.

Because the Services decided to issue a joint Opinion

and because this draft reflected a version of EPA’s Regulation that differed prior to the issuance of the final

joint Opinion, this draft was abandoned and never finalized. There are no segregable portions for release in

this draft because a biological opinion is not a compilation of data, but rather a preliminary narrative analyses

based on weighing and sifting information and assigning

value, as well as how to deal with uncertainty. Accordingly, the discussion of factual material in this document

is intertwined with the analysis such that it is not possible to reveal the factual material without revealing the

agency’s preliminary analysis. Because this preliminary draft was circulated for internal review and comment, the analysis and factual matters presented are not

complete or final and may contain inaccuracies.

18. I withhold in full Document Number

0.7.266.5597.1 pursuant to the deliberative process privilege of FOIA exemption (b)(5) (5 U.S.C. § 552(b)(5).

This is a draft document which describes potential possible methods to minimize risk to abalone, provided as a

first draft for comment among NMFS staff and sent via

email on November 4, 2013 from Dan Lawson of NMFS

to Jennifer Schultz of NMFS. These measures were

considered for possible incorporation into the biological

opinion, in a RPA, if NMFS were to conclude that the

Regulation jeopardized listed species, or as possible

T&Cs in an ITS. Ultimately, NMFS did not reach

these conclusions in this manner but still included a

later-refined version of the measures in the Opinion as

Appendix D: Example of Species Specific Control

Measures, Monitoring and Reporting. The draft document is a preliminary narrative analysis that reflects the

agency’s deliberations about what potential species-protective measures should be included in the biological

opinion. The selection of topics and supporting information in the draft reflects the agency’s decision-making process. The preliminary analysis and material

presented are not complete/final and may contain various inaccuracies. There are no segregable portions of

this document. The discussion of factual material in

this document is generally intertwined with the analysis

such that it is not possible to reveal the factual material

without revealing the agency’s preliminary analysis.

Factual material is not merely compiled but is weighed

and evaluated to determine what the proper protective

methodology, and therefore is intertwined with the analysis such that revealing it will also reveal the agency’s

preliminary analysis.

19. I withhold in its entirety Document Number

0.7.266.7196.1 pursuant to the deliberative process privilege of FOIA exemption (b)(5) (5 U.S.C.

§ 552(b)(5)). The document, sent via email from Shelly

Norton of NMFS to Kris Petersen of NMFS on April 24,

2014, is a draft of a recovery plan for Johnson’s sea

grass, a threatened plant species. The draft recovery

plan, not yet final and not itself the subject of this FOIA

request, is being developed to replace the existing Johnson’s sea grass recovery plan issued in 2002. Ms. Norton provided the draft of the recovery plan to assist Ms.

Petersen in writing Appendix C of the Opinion. The

draft is a preliminary narrative analysis to be considered prior to a separate agency determination for inclusion in the recovery plan mandated by ESA Section 4(f ),

16 USC § 1533(t). There are no segregable portions for

release. The selection of topics and supporting information in the draft reflects the agency’s decision-making process. The discussion of factual material cannot

be revealed without also revealing the agency’s preliminary analysis. The preliminary analysis and material

presented are not complete/final and may contain various

inaccuracies.

20. I withhold in its entirety Document Number

0.7.266.7544.2 pursuant to the deliberative process privilege of FOIA exemption (b)(5) (5 U.S.C. § 552(b)(5)).

This document, sent from Jennifer Schultz of NMFS to

Audra Livergood and other NMFS staff members on

August 9, 2013, is a first draft of potential measures to be

included in the biological opinion to minimize risk to salmonids. These measures were considered for possible

incorporation into the biological opinion, in a RPA, if

NMFS were to conclude that the Regulation jeopardized listed species, or as possible T&Cs in an ITS.

Ultimately, NMFS did not reach these conclusions in

this manner but still included a later-refined version of

the measures in the Opinion as Appendix D: Example

of Species Specific Control Measures, Monitoring and

Reporting. This first draft was circulated for the purpose of soliciting comments on those measures. The

draft is a preliminary narrative analysis to be considered prior to the agency’s determination of appropriate

measures for inclusion in the biological opinion. There

are no segregable portions of this document for release.

The selection of topics and supporting information in the

draft reflects the agency’s decision-making process.

The discussion of factual material cannot be revealed

without also revealing the agency’s preliminary analysis. The preliminary analysis and material presented

are not complete/final and may contain various inaccuracies.

21. I withhold in its entirety Document Number

0.7.266.7544.3 pursuant to the deliberative process privilege of FOIA exemption (b)(5) (5 U.S.C. § 552(b)(5)).

This document, also sent as an attachment to the same

email discussed in the preceding paragraph from Jennifer Schultz of NMFS to Audra Livergood and others

of NMFS on August 9, 2013, is a first draft of potential

measures to include in the biological opinion to minimize

risk to salmonids, larval fish, sea turtles, abalone, and

corals. These measures were considered for possible

incorporation into the biological opinion, in a RPA, if

NMFS were to conclude that the Regulation jeopardized listed species, or as possible T&Cs in an ITS.

Ultimately, NMFS did not reach these conclusions in

this manner but still included a later-refined version of

the measures in the Opinion as Appendix D: Example

of Species Specific Control Measures, Monitoring and

Reporting. This first draft was circulated for the purpose of soliciting comments from NMFS staff, and was

not circulated outside of NMFS. The draft is a preliminary narrative analysis to be considered prior to an

agency determination of appropriate measures for inclusion in the biological opinion. The selection of topics

and supporting information in the draft reflects the

agency’s decision-making process. The document also

contains various comments and questions of agency

staff, which reflect the internal deliberations and discussions during the course of reviewing this draft document. There are no segregable portions of this document for release. The discussion of factual material

cannot be revealed without also revealing the agency’s

preliminary analysis. The preliminary analysis and

material presented are not complete/final and may contain various inaccuracies.

22. I withhold in its entirety Document Number

0.7.266.37667 pursuant to the deliberative process privilege of FOIA exemption (b)(5) (5 U.S.C.

§ 552(b)(5)). This document is an undated draft document written during development of NMFS’ draft opinion,

describing possible protective measures for consideration in the biological opinion to minimize risk to sea turtles. These measures were considered for possible incorporation into the biological opinion, in a RPA, if NMFS

were to conclude that the Regulation jeopardized listed

species, or as possible T&Cs in an ITS. Ultimately,

NMFS did not reach these conclusions in this manner

but still included a later-refined version of the measures

in the Opinion as Appendix D: Example of Species

Specific Control Measures, Monitoring and Reporting.

The draft is a preliminary narrative analysis to be considered prior to an agency determination and consideration in the opinion. The selection of topics and supporting information in the draft reflects the agency’s decision-making process. There are no segregable portions for release in this document. The discussion of

factual material cannot be revealed without also revealing the agency’s preliminary analysis. The preliminary analysis and material presented are not complete/final and may contain various inaccuracies.

23. I withhold in its entirety Document Number

0.7.266.37695 pursuant to the deliberative process privilege of FOIA exemption (b)(5) (5 U.S.C. § 552(b)(5)).

The document is an undated draft document, written

during development of NMFS’ draft opinion, describing

possible protective measures for inclusion in the biological opinion to minimize risk for pinnipeds.

These

measures were considered for possible incorporation

into the biological opinion, in a RPA, if NMFS were to

conclude that the Regulation jeopardized listed species,

or as possible T&Cs in an ITS. Ultimately, NMFS did

not reach these conclusions in this manner but still

included a later-refined version of the measures in the

Opinion as Appendix D: Example of Species Specific

Control Measures, Monitoring and Reporting. The

draft is a preliminary narrative analysis to be considered prior to an agency determination and consideration

in the opinion. The selection of topics and supporting

information in the draft reflects the agency’s decisionmaking process. The document also contains various

comments and questions of agency staff, which reflect

the internal deliberations and discussions during the

course of reviewing this draft document. There are no

segregable portions for release. The discussion of factual material cannot be revealed without also revealing

the agency’s preliminary analysis. The preliminary analysis and material presented are not complete/final and

may contain various inaccuracies.

24. I withhold in its entirety Document Number

0.7.266.45263.1 pursuant to the deliberative process

privilege of FOIA exemption (b)(5) (5 U.S.C. § 552(b)(5)).

The document, sent via email from Jennifer Schultz of

NMFS to David Nichols and others of NMFS on March

19, 2014, describes draft protective measures for inclusion in the biological opinion to minimize risk to sea turtles. These measures were considered for possible incorporation into the biological opinion, in a RPA, if

NMFS were to conclude that the Regulation jeopardized listed species, or as possible T&Cs in an ITS.

Ultimately, NMFS did not reach these conclusions in

this manner but still included a later-refined version of

the measures in the Opinion as Appendix D: Example

of Species Specific Control Measures, Monitoring and

Reporting. The purpose of sending this draft document is to seek comments from NMFS scientists on the

draft protective measures for consideration in the biological opinion. The draft is a preliminary narrative

analysis to be considered prior to an agency determination and consideration in the biological opinion. The

selection of topics and supporting information in the

draft reflects the agency’s decision-making process.

The document also contains various comments and questions of agency staff, which reflect the internal deliberations and discussions during the course of reviewing

this draft document. The document does not contain

segregable portions for release. The discussion of factual material cannot be revealed without also revealing the

agency’s preliminary analysis. The preliminary analysis

and material presented are not complete/final and may

contain various inaccuracies.

25. I withhold in its entirety Document Number

0.7.266.45277.2 pursuant to the deliberative process

privilege of FOIA exemption (b)(5) (5 U.S.C. § 552(b)(5)).

The document, sent from Patrick Opay of NMFS to Jennifer Schultz of NMFS on March 20, 2014 in response to

an earlier internal email chain among Jennifer Schultz,

David Nichols and Irene Kelly of NMFS, is a draft describing potential protective measures for inclusion in the

biological opinion to minimize risk to sea turtles. These

measures were considered for possible incorporation

into the biological opinion, in a RPA, if NMFS were to

conclude that the Regulation jeopardized listed species,

or as possible T&Cs in an ITS. Ultimately, NMFS did

not reach these conclusions in this manner but still included a later-refined version of the measures in the

Opinion as Appendix D: Example of Species Specific

Control Measures, Monitoring and Reporting. The

draft was circulated to solicit comments from NMFS

staff on these potential measures, and contains comments from NMFS staff written in the margins. The

draft is a preliminary narrative analysis to be considered prior to an agency determination and consideration

for inclusion in the opinion. The selection of topics and

supporting information in the draft reflects the agency’s

decision-making process. The document also contains

various comments and questions of agency staff, which

reflect the internal deliberations and discussions during

the course of reviewing this draft document. There are

no segregable portions of this document for release.

The discussion of factual material cannot be revealed

without also revealing the agency’s preliminary analysis. The preliminary analysis and material presented

are not complete/final and may contain various inaccuracies.

26. I withhold in part document number 0.7.266.5143

pursuant to the deliberative process privilege of FOIA

exemption (b)(5) (5 U.S.C. § 552(b)(5)). The document

is an internal email thread from November 11 through

November 14, 2013, among Jennifer Schultz of NMFS

and Rich Domingue of NMFS and Mark Eames of

NOAA’s Office of General Counsel, discussing a separate ongoing consultation being done by staff from the

Northwest Regional Office. While the information

sought was for the purpose of writing the biological

opinion that is the subject of this FOIA, the redacted

portions of the document contain the agency’s deliberations in preparation for developing and writing a separate biological opinion that has yet to be finalized and

that is not the subject of this FOIA request. The redacted portions also contain NMFS headquarters and

regional staff deliberative evaluation of possible options

for implementation of the 2001 Memorandum of Agreement Between the Environmental Protection Agency,

Fish and Wildlife Service and National Marine Fisheries Service Regarding Enhanced Coordination Under

the Clean Water Act and Endangered Species Act

(MOA), 36 FR 11202 (February 22, 2001). Section

IX.A. of the MOA details coordination procedures between EPA and the Services for consideration of ESA

concerns in issuance of state or tribal NPDES permits.

In the preamble in the Federal Register notice announc-

ing the final Regulation, in the section titled EPA Oversight of State-Issued NPDES Permits To Protect

Threatened and Endangered Species, EPA cited to and

described these procedures in the MOA and stated that

the MOA applies equally to NPDES permits that contain conditions for cooling water intake structures.

79 FR 48299, 48382-3 (August 15, 2014). The Opinion

described EPA’s oversight role as part of EPA’s action.

Opinion at 12-13. The discussion in this document contains thoughts and questions from agency staff in preparation for writing an early draft of the NMFS’ draft

opinion that was never finalized. This document has been

segregated and non-deliberative or factual material has

been released.

27. I withhold in its entirety Document Number

0.7.266.45161 pursuant to the deliberative process privilege of FOIA exemption (b)(5) (5 U.S.C. § 552(b)(5)).

The document is a one-paragraph email sent March 10,

2014 from Jennifer Schultz of NMFS to Angela Somma

and Ron Dean of NMFS and George Noguchi of FWS

discussing implementation of the 2001 MOA, for consideration in developing the biological opinion. This email

reflects the agencies’ internal deliberations during agency

decision-making during development of the Opinion.

The content of the email reveals the agency’s preliminary analysis of potential agency action and topics/

questions to be discussed. No segregation is possible for

this document because all factual and non- deliberative

material is interwoven with the analysis.

28. I withhold in its entirety Document Number

0.7.266.45161.1 pursuant to the deliberative process

privilege of FOIA exemption (b)(5) (5 U.S.C. § 552(b)(5)).

The document, sent as an attachment to the email described in the paragraph above, discusses and evaluates

various aspects of the implementation of the 2001 MOA.

In addition to reflecting the agencies’ deliberations in

preparation for the Opinion at issue in this FOIA, the

document also reflects the agencies’ pre-decisional

deliberations on state water quality standards under the

Clean Water Act and individual state NPDES permits

that are not the subject of this FOIA. This is a document consisting of agency staff ’s preliminary analysis,

thoughts, proposals, and recommendations. This document was attached to be discussed during the course of

decision-making by agency staff and was distributed for

comments and review antecedent to agency action on

the issue. The preliminary analysis and material presented are not complete/final and may contain various

inaccuracies. No segregation is possible for this document because all factual and non-deliberative material

is interwoven with the analysis.

29. I withhold in its entirety Document Number

0.7.266.45164 pursuant to the deliberative process privilege of FOIA exemption (b)(5) (5 U.S.C. § 552(b)(5)) for

the reasons described in the two paragraphs above. The

document is a March 10, 2014 email response from Angela Somma of NMFS to Documents Number

07.266.45161 and 07.266.45161.1. The content of the

email reveals the agency’s preliminary analysis of potential agency action and topics/questions to be discussed.

No segregation is possible for this document because all

factual and non-deliberative material is interwoven with

the analysis.

30. I withhold in its entirety Document Number

0.7.266.61721 pursuant to the deliberative process privilege of FOIA exemption (b)(5) (5 U.S.C. § 552(b)(5)).

This undated document, written during development of

NMFS’ draft opinion, is a draft table of possible quantified estimates of effects on listed species, based on the

EPA’s draft rule as it existed in 2013, a draft table that

NMFS after further deliberations among its scientists

ultimately determined not to include in the Opinion.

This draft represents the agency’s preliminary analysis

and estimates. This document was generated as part of

the agency’s decision making regarding a biological opinion.

Because the entire document represents draft

views, no segregation is possible.

31. I withhold in its entirety Document Number

0.7.266.14973.1 pursuant to the deliberative process privilege of FOIA exemption (b)(5) (5 U.S.C. § 552(b)(5)).

The document, attached to a March 10, 2014 email from

Jennifer Schultz of NMFS to Donna Wieting and Cathy

Tortorici of NMFS, is an example of T&Cs for consideration in developing an ITS for this Opinion, from a draft

biological opinion regarding a separate federal action,

not the subject of this FOIA. At the time the draft was

shared, the separate biological opinion had not been finalized. This document was created during the process

of agency decision-making on the separate federal action, during the development of the biological opinion

that is not the subject of this FOIA, and does not reflect

the final determination of the agency with respect to

that separate biological opinion. This document also

contains comments and highlights which reveal the preliminary analysis of agency staff. The document contains no segregable portions for release. The discussion of factual material cannot be revealed without also

revealing the agency’s preliminary analysis. The preliminary analysis and material presented are not

complete/final.

32. I withhold in its entirety Document Number

0.7.266.17987.1 pursuant to the deliberative process

privilege of FOIA exemption (b)(5) (5 U.S.C.

§ 552(b)(5)). This draft document, a duplicate of Document Number 0.7.266.61721, was sent as an attachment

to an email from Jennifer Schultz of NMFS to Donna

Wieting and Cathy Tortorici of NMFS. I withhold it for

the same reasons discussed for Document Number

0.7.266.61721.

33. I withhold in part Document Number

0.7.266.7055 pursuant to the deliberative process privilege of FOIA exemption (b)(5) (5 U.S.C. § 552(b)(5)).

This document is an email among Jennifer Schultz,

Steve Thomas and Richard Wantuck of NMFS from

March 12 through March 18, 2014 discussing requirements for fish screen monitoring and reporting as well

as possible control measures for CWIS. This email

chain is internal to NMFS agency staff and reflects the

agency’s deliberations during the course of drafting and

evaluating a possible biological opinion. This discussion

is antecedent to official agency action and consists of comments, questions, and thoughts of agency staff during the

deliberative process. This document has been segregated and non-deliberative material has been released.

34. I withhold in part Document Number

0.7.266.7066 pursuant to the deliberative process privilege of FOIA exemption (b)(5) (5 U.S.C. § 552(b)(5)).

This document is an email among Jennifer Schultz, Joe

Dillon, Steve Thomas and other NMFS staff from

March 12 through March 27, 2014, discussing possible

requirements for fish screen monitoring and reporting

as well as possible control measures for CWIS. Possible options for the biological opinion are also sought.

The document also contains an excerpt from EPA’s

draft Regulation that reflects EPA’s deliberative process. This email chain is internal to NMFS agency

staff and reflects the agency’s deliberations during the

course of drafting and evaluating a possible biological

opinion as well as including excerpts from an EPA predecisional deliberative draft. This discussion is antecedent to official agency action and consists of comments, questions, and thoughts of agency staff during the

deliberative process. This document has been segregated and non-deliberative material has been released.

35. I withhold in its entirety Document Number

0.7.266.37253 pursuant to the deliberative process privilege of FOIA exemption (b)(5) (5 U.S.C. § 552(b)(5)).

This August 7, 2013 email from Bryan Nordlund of

NMFS to Rich Domingue of NMFS is a NMFS internal

memorandum that discusses the intake screens assessment based on evaluation of one facility, for purposes of

developing the biological opinion for that facility. That

biological opinion, that is not the subject of this FOIA,

has not been finalized.

This document reflects the

agency’s internal preliminary analysis, assessments, and

recommendations during the course of decision-making

for that separate biological opinion. The factual material cannot be revealed without also revealing the

agency’s preliminary analysis and no segregation is possible.

36. I withhold part of Document Number

0.7.266.5038 pursuant to the deliberative process privilege of FOIA exemption (b)(5) (5 U.S.C. § 552(b)(5)).

The document is an internal NMFS-only email chain

from August 9, 2013, to August 27, 2013, among Jennifer

Schultz and Colette Cairns, NMFS headquarters staff

with the lead on preparing the biological opinion, and

Ryan Hendren, a NMFS biologist in NMFS Southeast

Regional Office in St. Petersburg, Florida. This email

was generated early in the preparation of the biological

opinion and for the purpose of writing and evaluating

possible options for the biological opinion. The redacted portions contain the agency’s deliberations in

discussions and comments on issues related to EPA’s

delegation of authority to states and possible methods

to minimize adverse effects to federally-listed species.

This discussion is antecedent to official agency action and

consists of comments, questions, and thoughts of agency

staff during the deliberative process. This document

has been segregated and non-deliberative material has

been released.

I declare under penalty of perjury under the laws of

the United States of America that the foregoing is true

and correct. Executed this [10] day of Feb. 2017.

/s/

SAMUEL D. RAUCH, III

Acting Assistant Administrator, NMFS

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

Case No. 15-cv-05872 EDL

SIERRA CLUB, INC., PLAINTIFF

NATIONAL MARINE FISHERIES SERVICE AND UNITED

STATES FISH AND WILDLIFE SERVICE, DEFENDANTS

DECLARATION OF GARY FRAZER

I, Gary Frazer, hereby declare as follows:

1. I am the Assistant Director for Ecological Services of the U.S. Fish and Wildlife Service (“FWS”), an

agency of the U.S. Department of the Interior (“DOI”),

located in Washington, D.C. In my capacity as Assistant Director, I am responsible to the Director of the

FWS and the Secretary of the Interior for the administration of the Endangered Species Act (“ESA” or

“Act”), 16 U.S.C. §§ 1531-1544, which includes oversight

and management of national programmatic consultations on Federal agency actions that are conducted by

my Ecological Services’ program staff at FWS’s Headquarters Office.

2. I make this declaration based upon my personal

knowledge and information available to me in my capacity as the Assistant Director for Ecological Services of

FWS.

3. On May 19, 2014, Paul Souza, Deputy Assistant

Director for Ecological Services at the time, signed, in

my capacity, the FWS and National Marine Fisheries

Service’s (“NMFS”) joint biological opinion on the U.S.

Environmental Protection Agency’s (“EPA”) issuance

and implementation of the final regulations implementing

section 316(b) of the Clean Water Act. In the joint biological opinion, the FWS and NMFS (collectively, the

“Services”) concluded that EPA’s promulgation of the

regulations is not likely to jeopardize the continued

existence of ESA-listed species and is not likely to destroy or adversely modify designated critical habitat.

In reaching this conclusion regarding EPA’s compliance

under section 7(a)(2) of the ESA, the Ecological Services

Program staff at FWS Headquarters conducted a programmatic consultation on the 316(b) final rule, focusing

primarily on required elements of the regulatory process set forth in the rule and on EPA’s commitment to

oversee implementation of the rule.

4. Before the joint biological opinion was issued,

the Services engaged in an intensive consultation process with EPA involving not only scientific issues

regarding the effects of EPA’s action, but issues of legal

and policy relevance regarding EPA’s authority and discretion and the FWS’s consideration of such in the consultation. In fact, given the agency action being analyzed was a rulemaking to implement a permitting program carried out by EPA or States approved by EPA

under the National Pollutant Discharge Elimination

System, this programmatic biological opinion was necessarily laden with significant policy and legal considerations under both the ESA and the Clean Water Act,

even more so than what may be expected in a traditional,

site-specific consultation.

5. In the nearly two years leading up to the issuance of the opinion, agency personnel met routinely,

both in person and over the phone, and exchanged thousands of emails. The Services, along with EPA, participated in frank discussions over this period, and multiple

options for EPA’s regulation and the biological opinion

were considered and reconsidered, with many rejected.

Multiple pre-decisional drafts of the biological opinion,

portions of the biological opinion, as well as briefing and

options papers were circulated intra- and interagency.

Multiple comments and suggestions were exchanged,

often by several people on the same document, and

sometimes those comments and suggestions conflicted.

Documents were revised on the author’s own initiative

or in response to comments and recirculated.

6. The Services generated many pre-decisional

drafts of the biological opinion, most not changing significantly between these versions. Included among the

pre-decisional drafts of the biological opinion identified

in Exhibit A, attached hereto, are drafts from December

6, 2013 and December 9, 2013, in which the FWS concluded that the EPA’s regulation in its thencurrent-form was likely to jeopardize listed species and

adversely modify critical habitat. These pre-decisional

draft biological opinions were subject to internal review

within FWS and the Department of the Interior and

consultation with the EPA. Based upon this internal

review and interagency review in December, the FWS

concluded that additional consultation was needed to

better understand and consider the operation of key

elements of EPA’s rule, the elements of which were still

being deliberated within EPA as well.

Therefore,

these December 6 and December 9 draft opinions were

never signed by me and distributed to EPA as the

agency’s official preliminary position.

In fact, the

FWS, NMFS, and the EPA all agreed, that more work

needed to be done and agreed to extend the time frame

for the consultation. Because the Services preliminarily believed that the regulation, as then written, may be

likely to jeopardize listed species or destroy or

adversely modify critical habitat, the Services also

wrote draft RPAs as required by ESA Section 7. Ultimately, based on changes to the regulation, the Services’

final conclusion was that the regulation was not likely to

jeopardize the continued existence of listed species nor

likely to destroy or adversely modify critical habitat.

Thus, no RPAs were required, and the Services did not

include any in the final biological opinion.

7. I am personally familiar with this consultation

and the legal and policy issues that were considered by

the FWS Headquarters Ecological Services Program

staff in rendering its biological opinion. I was involved in

the decision-making process at FWS Headquarters, participating in internal discussions with mid-level managers in the Ecological Services Program Office, which included Rick Sayers, Chief of the Division of Environmental Review, and Patrice Ashfield, Chief of the

Branch of Consultation and Habitat Conservation Planning, as well as the staff biologist who served as FWS’s

primary author of the biological opinion, Drew Crane.

I also participated in interagency discussions among

FWS staff and agency officials at DOI, the DOI’s Office

of the Solicitor, NMFS, NOAA’s General Counsel’s

Office, EPA, EPA’s Office of General Counsel, the Office

of Management and Budget, and the United States

Department of Justice.

Sierra Club’s FOIA Request

8. On August 11, 2014, Sierra Club, Inc. (the

“Plaintiff”), submitted a FOIA request to FWS. Specifically this request sought:

“(1) All FWS drafts of all or portions of the Endangered Species Act (ESA) Section 7 Consultation Programmatic Biological Opinion on the U.S. Environmental Protection Agency’s Issuance and Implementation of the Final Regulations Section 316(b) of the

Clean Water Act (the “BiOp”), Incidental Take Statement and its appendices;

(2) All documents exchanged between FWS staff

and between FWS and the Environmental Protection

Agency (EPA), or any other governmental agency or

official, during interagency review of, and concerning, drafts of the BiOp and/or Incidental Take Statement;

(3) All documents between FWS staff and between

FWS and EPA, or any other governmental agency or

official, concerning the ESA section 7 consultation on

EPA’s most recent 316(b) rule;

(4) All documents serving as the basis for, or which

were considered by, the FWS in connection with its

“no jeopardy” and/or “no adverse modification” of

critical habitat findings on the ESA section 7 consultation for the most recently proposed 316(b) rule;

(5) All documents between FWS staff and between

FWS and EPA, or any other governmental agency or

official, concerning any ESA section 7 consultation on

EPA’s previously proposed 316(b) rule(s), including

for new sources as well as existing sources; and

(6) All documents exchanged and all documents related to any meetings, telephone conversations,

emails, or any other communications between FWS

and the utility (i.e., electric generation) industry or

manufacturing industry, representatives of the utility or manufacturing industries, trade groups, special

interest groups, and/or other non-governmental parties relating to the ESA section 7 consultation and

the 316(b) rule,”

9. Accordingly, FWS conducted a broad search in

locating the documents that were potentially responsive

to the FOIA request. FWS’s search for documents responsive to the FOIA request involved extensive queries

of FWS staff who worked on the consultation, as well as

a search of the electronic files of staff, including those

who worked on the project, but were no longer with

FWS.

10. Through this extensive search, FWS ultimately

located 2,194 documents that were responsive to Sierra

Club’s FOIA request. FWS provided interim responses

to the FOIA request on March 10, March 26, June 22,

August 14, October 19, October 30, November 23, December 1, and December 24, 2015; and January 8, 2016.

In sum, FWS’s complete response to the FOIA request

consisted of 624 documents released in full and that

were not privileged, 347 documents released with redactions of privileged and non-responsive text, 1,075 documents withheld in full as privileged, while 148 documents were referred to NOAA and EPA for release

determination as those records originated from those

agencies.

FWS’s Privilege Log

11. In the Second Circuit Court of Appeals, the

FWS, along with other defendants, is a party to litigation related to the biological opinion in Cooling Water

Intake Structure Coalition, et. al., v. United States Environmental Protection Agency, et. al., Case No. 144645(L) (2nd Cir. 2016) (the “Second Circuit Action”).

The Plaintiff in this present case before this Court, Sierra Club, is also a plaintiff in the Second Circuit Action.

12. As a part of the Second Circuit Action, on July

13, 2015, FWS filed an administrative record for FWS’s

biological opinion. This administrative record was created by FWS staff, and the DOI Office of the Solicitor

reviewed, again, the documents responsive to Sierra

Club’s broad FOIA request.

13. On February 24, 2016, the Second Circuit motions panel partially granted a Motion to Compel, ordering FWS (along with other Federal Agencies), to produce a privilege log. In response to the Second Circuit’s order, on April 20, 2016, FWS filed a privilege log

in the Second Circuit Action, which I reviewed and also

signed a supporting declaration.

The Assertion of the FOIA’s Deliberative

Process Privilege

14. FWS and the Plaintiff have used the privilege

documents which are the subject of this briefing. FWS

provided additional detail on many documents that the

Plaintiff identified as potentially responsive.

return, Plaintiff narrowed the list of documents subject

to this briefing. Ultimately, following further conversations, the Plaintiffs narrowed the list of documents

sought from FWS to five, numbered 243, 252, 279, 308

and 555 in the privilege log in the Second Circuit Action,

along with “any other portions of the draft biological

opinion that were delivered to EPA during the consultation process” (collectively the “Narrowed Documents”

and each a “Narrowed Document”). The Narrowed

Documents are the basis for the FWS’s Vaughn Index,

attached hereto as Exhibit A.

15. In asserting the deliberative process privilege

with respect to the Narrowed Documents, FWS sought

to limit its claim of privilege to those documents that are

deliberative, the release of which would harm the important government interest in the quality of administrative decision-making on a consultation of nationwide

significance. The documents withheld under the deliberative process privilege involve candid discussions

among staff at FWS and NMFS, and are reflective or

pre-decisional opinions of EPA staff.

16. The documents withheld as subject to the deliberative process privilege are all pre-decisional working

drafts of the biological opinion (or sections of drafts) that

may also include redlined comments from various biologists and staff members.

17. If the candid views of staff contained in the Narrowed Documents were disclosed, the quality of future

internal deliberations on resource issues would suffer.

The working drafts of the biological opinion and the

rulemaking contain comments from personnel on legal

or policy matters related to a complex consultation of national significance. In my view, FWS personnel may hesitate to provide their frank and forthright opinions and

recommendations on these draft documents based on

fears that candid recommendations would be broadcast

outside the executive branch and misunderstood outside

of context. I believe that this material, if disclosed,

would significantly and adversely impair the integrity

and quality of the decision making process for future

FWS consultations.

18. These documents are an essential part of the deliberative process in that the authors of the documents

make recommendations or express opinions on legal or

policy matters related to the consultation. They include

candid internal discussions relating to various options

deliberated among the Ecological Services Program’s

staff and mid-level managers for the consultation. They

include recommendations from Program staff members

and lower level managers to individuals with decisionmaking authority. The Vaughn Index consists of documents containing legal or policy recommendations and

opinions developed by Program staff and mid-level managers with respect to the consultation and implementation of the regulatory processes set forth in the 316(b)

rulemaking.

19. In determining which documents were potentially subject to the deliberative process privilege, FWS

has applied the following principles: (1) the privilege

protects from disclosure only those documents that reflect advisory opinions, recommendations, and deliberations comprising part of a process by which government

decisions are made or policies are formulated; (2) withheld material must be opinion, deliberation, advice, recommendation, or evaluation by those responsible for advising on the advantages and disadvantages of proposed

agency decision or policy; (3) withheld material must be

directed toward formulation of a policy or decision being

debated within the agency at the time; and (4) withheld

material must be pre-decisional, must contain advice or

recommendations, and must not merely comment upon

already established policy. To the extent that any factual or non-privileged material is being withheld, I

believe that it is so intertwined with privileged information that the factual information cannot be released

without releasing privileged information as well. To

the best of my knowledge, such factual information generally is available from other documents which were included in the administrative record of the Second Circuit Action or in unredacted portions of documents subject to the FOIA.

20. I have determined that, to the best of my knowledge, the documents identified in the Vaughn Index as

subject to the deliberative process privilege should be

protected from release by this privilege. By this declaration, therefore, I formally claim the deliberative process privilege for all documents so identified in FWS’s

Vaughn Index.

The Narrowed Documents

21. Given the Plaintiffs’ reduction in the number of

the documents at issue for the purposes of this litigation,

I will address each Narrowed Document below, but the

reasoning above is incorporated herein by reference.

22. Document 243 is a full draft biological opinion

shared between two FWS employees, Drew Crane and

Rick Sayers, which incorporates edits made by myself.

This revised draft was predecisional and includes edits

in track changes throughout the document. It is my

opinion that this document is an essential part of the deliberative process in that the authors of the document

make recommendations or express opinions on legal or

policy matters related to the consultation. It reflects

candid internal discussions relating to various options

deliberated among the Ecological Services Program’s

staff and mid-level managers for the consultation.

This includes recommendations from Program staff

members and lower level managers to individuals with

decision-making authority.

23. Document 243 does not contain sections that are

segregable. The draft opinion is not a compilation of

data, but is a preliminary narrative analysis regarding

the subject matter of the opinion that was ultimately issued. Even the parts of the document which do not directly include track changes or notations could be used

to shed light on FWS’s thinking and discussions at the

time the document was drafted. The preliminary conclusions and preliminary inputs discussed in the documents reflect only the preliminary thinking of the FWS

at the time of the draft, and changed significantly by the

end of the process. The discussion of factual material

in the document is generally intertwined with the analysis such that it is not possible to reveal any factual

material without revealing the Services’ preliminary

analysis and assumptions. Because this is an early

draft circulated for internal review and comment, the

analysis and factual matters presented are not final and

may contain inaccuracies.

24. Document 252 is a full draft biological opinion

shared between two FWS employees, Drew Crane and

myself, which incorporates previous edits made by the

FWS team. This revised draft was predecisional. It

is my opinion that this document is an essential part of

the deliberative process in that the authors of the document make recommendations or express opinions on

legal or policy matters related to the consultation. It

reflects candid internal discussions relating to various

options deliberated among the Ecological Services Program’s staff and mid-level managers for the consultation. This includes recommendations from Program

staff members and lower level managers to individuals

with decision-making authority.

25. Document 252 does not contain sections that are

segregable. The draft opinion is not a compilation of

data, but is a preliminary narrative analysis regarding

the subject matter of the opinion that was ultimately issued. Even the parts of the document which do not directly reference the RPAs could be used to shed light on

FWS’s thinking and discussions at the time the document was drafted. The preliminary conclusions and

preliminary inputs discussed in the documents reflect

only the preliminary thinking of the FWS at the time of

the draft, and changed significantly by the end of the

process. The discussion of factual material in the document is generally intertwined with the analysis such

that it is not possible to reveal any factual material without revealing the Services’ preliminary analysis and

assumptions. Because this is an early draft circulated

for internal review and comment, the analysis and factual matters presented are not final and may contain

inaccuracies.

26. Document 279 is a portion of the biological opinion known as a reasonable and prudent alternative section

shared between one FWS employee, Drew Crane, and one

employee of NMFS, Jennifer Schultz, which incorporates previous edits made by the FWS team. This

revised draft was predecisional. It is my opinion that

this document is an essential part of the deliberative

process in that the authors of the document make recommendations or express opinions on legal or policy

matters related to the consultation. It reflects candid

internal discussions relating to various options deliberated among the Ecological Services Program’s staff and

mid-level managers for the consultation. This includes

recommendations from Program staff members and lower

level managers to individuals with decision-making

authority.

27. Document 279 does not contain sections that are

segregable. It is a brief section of the biological opinion which was fully excised from the final and public

biological opinion. There is no way to release the document without undermining the deliberative process

between members of the FWS internally, as well as

between staff of FWS, NMFS, and EPA.

28. Document 308 is a portion of the biological opinion, known as a reasonable and prudent alternative section, that was shared between Rick Sayers, Patrice Ashfield, and Drew Crane of FWS with NMFS, and also incorporates previous edits made by the FWS team.

This revised draft was predecisional. It is my opinion

that this document is an essential part of the deliberative process in that the authors of the document make

recommendations or express opinions on legal or policy

matters related to the consultation. It reflects candid

internal discussions relating to various options deliberated among the Ecological Services Program’s staff and

mid-level managers for the consultation. This includes

recommendations from Program staff members and

lower level managers to individuals with decision-making authority.

29. Document 308 does not contain sections that are

segregable. It is a brief section of the biological opinion which was fully excised from the final and public

biological opinion. There is no way to release the document without undermining the deliberative process

between members of the FWS internally, as well as

between FWS, NFMS, and EPA.

30. Document 555 is a portion of the biological opinion, known as a reasonable and prudent alternative section and shared between FWS and NMFS and also incorporates previous edits made by the FWS team.

This revised draft was predecisional. It is my opinion

that this document is an essential part of the deliberative process in that the authors of the document make

recommendations or express opinions on legal or policy

matters related to the consultation. It reflects candid

internal discussions relating to various options deliberated among the Ecological Services Program’s staff and

mid-level managers for the consultation. This includes

recommendations from Program staff members and

lower-level managers to individuals with decision-making

authority.

31. Document 555 does not contain sections that are

segregable. It is a brief section of the biological opinion which was fully excised from the final and public

biological opinion. There is no way to release the document without undermining the deliberative process

between members of the FWS internally, as well as

between FWS, NMFS, and EPA.

This declaration is made under the provision of Section

1746 of Title 28 of the United States Civil Code. I declare under penalty of perjury that the foregoing is true

and correct to the best of my knowledge.

Feb. [10], 2016 in Washington, D.C.

/s/

GARY FRAZER

Executed on

EXHIBIT A

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case No. 15-cv-05872-EDL

SIERRA CLUB, INC., PLAINTIFF

NATIONAL MARINE FISHERIES SERVICE AND UNITED

STATES FISH AND WILDLIFE SERVICE, DEFENDANT

Mar. 22, 2015

AMENDED COMPLAINT FOR DECLARATORY

AND INJUNCTIVE RELIEF

(Freedom of Information Act, 5 U.S.C. § 552 et seq.)

SIERRA CLUB, INC. (hereinafter “Sierra Club”),

by and through its undersigned counsel, hereby alleges:

I. NATURE OF THE CASE

1. Plaintiff asserts violations of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, by Defendants

National Marine Fisheries Service (“NMFS”), a federal

agency situated within the United States Department of

Commerce, and Fish and Wildlife Service (“FWS”), a

federal agency situated within the Department of the

Interior (collectively “Defendants”). Defendants have

failed to produce records that Sierra Club sought in two

FOIA requests on August 11, 2014.

2. Sierra Club’s FOIA requests concern a formal

consultation (hereinafter, the “ESA Consultation”) undertaken by NMFS and FWS under the Endangered

Species Act (“ESA”) with respect to regulations promulgated by the U.S. Environmental Protection Agency

(“EPA”) under Section 316(b) of the Clean Water Act

(hereinafter, the “316(b) Rule”). Section 316(b) requires

regulatory standards to minimize the adverse environmental impacts on fish and wildlife caused by cooling

water intake structures at existing power plants and

other industrial facilities.

3. Industrial cooling water systems are, by far, the

largest source of water withdrawals in the United

States, drawing trillions of gallons per year from America’s rivers, lakes, and oceans. The enormous volume

and force of these water withdrawals kills and injures

billions of fish and other aquatic organisms each year,

including many federally-listed threatened and endangered species, and damages the broader ecosystem.

4. More than 16 months after receiving the FOIA

request, and long past FOIA’s statutory deadline,

NMFS has still not completed its production of responsive documents. NMFS has repeatedly unilaterally

extended its estimated date of completion. Further,

NMFS’s interim productions have withheld records that

Sierra Club contends it is entitled to under FOIA.

5. On January 8, 2016, FWS completed its response

to Sierra Club’s FOIA request. FWS partially denied

Sierra Club’s FOIA request by redacting and withholding responsive documents. Sierra Club timely filed an

administrative appeal of the partial denial of its FOIA

request. However, FWS missed the statutory deadline

for responding to Sierra Club’s appeal.

6. As a result of Defendants’ failures, Sierra Club

is being deprived of critical information regarding the

government’s development of the 316(b) Rule and the

measures for protecting threatened and endangered

species from intake structures.

II.

JURISDICTION, VENUE, AND INTRADISTRICT

ASSIGNMENT

7. This Court has jurisdiction “to enjoin the agency

from withholding agency records and to order the production of any agency records improperly withheld from

the complainant.” 5 U.S.C. § 552(a)(4)(B).

8. Venue is proper in this District because Plaintiff ’s principal places of business are located in this District. 5 U.S.C. § 552(a)(4)(B).

9. Pursuant to Civil Local Rule 3-2(c), assignment

to the San Francisco Division is appropriate because

Plaintiff Sierra Club is incorporated in California and

resides and maintains its headquarters in San Francisco

County.

III. PARTIES

10. Plaintiff Sierra Club was founded in 1892 and is

the nation’s oldest grass-roots environmental organization. The Sierra Club is a national nonprofit organization that is incorporated in California and has its headquarters in San Francisco, California. It has more than

one million members and supporters, including thousands

of members in California. The Sierra Club is dedicated

to the protection and preservation of the natural and human environment, including protecting threatened and

endangered species and their habitat.

The Sierra

Club’s purpose is to explore, enjoy and protect the wild

places of the earth; to practice and promote the responsible use of the earth’s ecosystem and resources; and to

educate and enlist humanity to protect and restore the

quality of the natural and human environments.

11. Defendant National Marine Fisheries Service,

also known as “NOAA Fisheries” is a federal agency

within the National Oceanic and Atmospheric Administration within the United States Department of Commerce, which is subject to the requirements of FOIA

and has possession or control of records that Plaintiff

seeks in this action.

12. Defendant United States Fish and Wildlife Service is a federal agency within the Department of the

Interior, which is subject to the requirements of FOIA

and has possession or control of records that plaintiff

seeks in this action.

IV. STATUTORY

GROUND

AND

REGULATORY

BACK-

13. “The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic

society, needed to check against corruption and to hold

the governors accountable to the governed.” NRLB v.

Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).

In other words, as the Supreme Court has declared,

“FOIA is often explained as a means for citizens to know

what the Government is up to.” Nat’l Archive & Records Admin. v. Favish, 541 U.S. 157, 171 (2004) (internal

quotations and citations omitted).

14. In particular, FOIA requires agencies of the federal government to release, upon request, information

to the public, unless one of nine specific statutory exemptions applies. 5 U.S.C. § 552(a)(3)(A). These exemptions are narrowly construed, and the agency bears

the burden of establishing the applicability of each exemption as to each document for which it is claimed.

15. Upon receiving a FOIA request, an agency has

twenty business days to respond by determining

whether responsive documents exist and whether the

agency will release them. 5 U.S.C. § 552(a)(6)(A).

16. FOIA allows an agency to delay an initial response for ten business days—but only ten business

days—past the statutory deadline, if the agency can

demonstrate that it faces “unusual circumstances” in responding to the request.

5 U.S.C. § 552(a)(6)(B).

“Unusual circumstances” include the need to search for

and collect requested documents from other offices, the

need to appropriately examine a voluminous amount of

separate and distinct records, and the need to consult

with another agency. 5 U.S.C. § 552(a)(6)(B)(iii)(I-III).

Even under “unusual circumstances,” however, an agency

must provide notice of the delay and also provide “the

date on which a determination is expected to be dispatched.” 5 U.S.C. § 552(a)(6)(B)(i).

17. The agency must provide information about the

status of the request including “an estimated date on

which the agency will complete action on the request.”

5 U.S.C. § 552(a)(7)(B)(ii). This date and other information about the status of the request must be available

through a telephonic line or internet service established

by the agency. Id.

18. When an agency denies, in whole or in part, a request for records under FOIA, the agency must make a

“reasonable effort to estimate the volume of any requested matter the provision of which is denied, and

shall provide any such estimate to the person making

the request.” 5 U.S.C. § 552(a)(6)(F).

19. When an agency denies, in whole or in part, a request for records under FOIA, the agency must inform

the requesting party of the right “to appeal to the head

of the agency any adverse determination.” 5 U.S.C.

§ 552(a)(6)(A)(i). The agency must make a determination with respect to any appeal within twenty business

days (excluding holidays). 5 U.S.C. § 552(a)(6)(A)(ii).

20. FOIA expressly provides that a requester “shall

be deemed to have exhausted his administrative remedies . . . if the agency fails to comply with the applicable

time limit provisions” governing its response to a FOIA

request or an appeal. 5 U.S.C. § 552(a)(6)(C).

STATEMENT OF FACTS

Cooling Water Intake Structures Kill Billions of

Fish Every Year.

21. Power plants and other industrial facilities use

cooling water intake structures to withdraw massive volumes of water for cooling. Collectively, the nation’s

industrial cooling systems withdraw more water than is

used for municipal water supplies and irrigated agriculture combined.

22. The largest plants in the country can draw

enough water from a river to fill an Olympic swimming

pool in less than 30 seconds. It is no wonder, then, that

every year, hundreds of billions of juvenile fish, larvae,

eggs and other aquatic organisms — including the

young of many threatened and endangered species —

are trapped and killed by the incredibly powerful pumps

at such facilities.

23. The withdrawal of cooling from natural water

bodies causes multiple types of undesirable adverse environmental impacts, including but not limited to

entrainment 1 and impingement; 2 reductions of threatened, endangered or other protected species; damage to

critical aquatic organisms, including important elements of the food chain; diminishment of fish population’s compensatory reserve; losses to populations including reductions of indigenous species populations

and commercial and recreational fishery stocks; and

stresses to overall communities and ecosystems.

24. By EPA’s highly conservative estimates, industrial cooling water withdrawals annually result in the

death of at least 2.2 billion age one-equivalent fish,

crabs, and shrimp, and a minimum of 528 billion eggs

and larvae that serve as the basis of the aquatic food

chain. In many cases, the toll on fisheries by power

plants rivals or exceeds that of the fishing industry.

These withdrawals also destroy individuals from at least

266 federally-listed threatened and endangered species,

and adversely impact the designated critical habitat of

certain protected species.

25. “The environmental impact of these systems is

staggering: A single power plant might impinge a million adult fish in just a three-week period, or entrain

some 3 to 4 billion smaller fish and shellfish in a year,

destabilizing wildlife populations in the surrounding

Entrainment refers to the extracting of fish eggs and larvae and

other small organisms from a source waterbody into and through a

power plant’s cooling system, where they are killed or injured by

thermal, physical and chemical shocks.

Impingement refers to the trapping of adult and juvenile fish and

other large aquatic organisms, including sea turtles and marine

mammals, on the screens of an intake structure, which can kill or

injure those animals through asphyxiation, descaling and other

harms.

ecosystem.” Riverkeeper, Inc. v. U.S. EPA, 358 F.3d

174, 181 (2d Cir. 2004).

EPA’s Regulations and the Endangered Species

Act Consultation.

26. In the Clean Water Act of 1972, Congress

ordered EPA to minimize the devastating environmental impacts that cooling water intake structures have on

America’s waters by setting nationally uniform and

binding regulations.

See CWA Section 316(b);

33 U.S.C. § 1326(b).

27. In 2001, 2004 and 2006 EPA promulgated Section 316(b) regulations that were challenged and upheld

in part and remanded in part. See Riverkeeper, Inc. v.

U.S. EPA, 358 F.3d 174 (2d Cir. 2004) (“Riverkeeper I”);

Riverkeeper, Inc. v. U.S. EPA, 475 F.3d 83 (2d Cir. 2007)

(“Riverkeeper”); ConocoPhillips Co. v. EPA, 612 F.3d

822 (5th Cir. 2010).

28. In 2007, EPA suspended the regulations that

were remanded in large part by the Second Circuit in

Riverkeeper II. 72 Fed. Reg. 37,107, 37,108 (July 9,

2007).

29. On remand from the circuit courts, in 2011, EPA

proposed new Section 316(b) regulations for existing

facilities and revised its regulations for new facilities.

30. On June 18, 2013, EPA initiated the formal ESA

Consultation with NMFS and the FWS following comments by environmental groups, including Sierra Club,

that EPA must undertake such consultation.

31. The ESA Consultation concluded approximately

eleven months later, on May 19, 2014, with the Services’

release of a programmatic biological opinion on EPA’s

issuance and implementation of the 316(b) Rule (“Biological Opinion”).

32. On May 19, 2014, the EPA Administrator signed

the final 316(b) Rule, entitled National Pollutant Discharge Elimination System—Final Regulations to

Establish Requirements for Cooling Water Intake

Structures at Existing Facilities and Amend Requirements at Phase I Facilities (EPA-HQ- OW-2008-0667).

33. EPA published the 316(b) Rule in the Federal

The FOIA Request.

34. On August 11, 2014, Sierra Club submitted

FOIA requests to Defendants asking that they make

available for inspection and copying eight categories of

records relating to the 316(b) Rule, Biological Opinion

and ESA Consultation. See Exhibits A & B.

NMFS’s Response.

35. NMFS’s response to Sierra Club’s request has

been wholly inadequate.

36. On August 13, 2014, NMFS mailed an initial response acknowledging receipt of Sierra Club’s August

11, 2014, request and assigned that request a tracking

number, FOIA# DOC-NOAA-2014-001474. See Exhibit C

37. On August 27, 2014, counsel for the parties conferred regarding the scope of the request.

38. On September 8, 2014, Sierra Club agreed to

narrow the scope of the request to exclude records containing routine administrative matters and personally

identifiable information. See Exhibit D.

39. On September 25, 2014, Sierra Club received an

email from NMFS estimating that the “earliest [NMFS]

can provide a response is November 21[, 2014].” See

Exhibit E.

40. Having received no records from NMFS, on

December 3, 2014, Sierra Club requested a status

update from NMFS.

41. On December 11, 2014, NMFS responded that it

was not able to provide an estimated date of completion,

but “anticipate[d] being able to provide a date certain

for providing our response” by the end of January 2015.

See Exhibit F.

42. After January 2015 passed with no information

from NMFS, on February 24, 2015, Sierra Club

requested a status update from NMFS, followed by

another request for a status update on March 4, 2015.

43. On March 3, 2015, more than six months after

Sierra Club submitted its FOIA request, NMFS released the first production of responsive records, which

was composed of only five documents totaling 51 pages.

44. On March 4, 2015, after a telephone conversation

between the parties, counsel for NMFS sent Sierra Club

an email stating that “review of the documents responsive to the FOIA request will occur in conjunction with

the preparation of the administrative record in the

pending litigation. . . . We anticipate being able to

provide a final response approximately one month after

the filing of the administrative record [in Cooling Water

Intake Structure v. U.S. Environmental Protection

Agency, U.S. Court of Appeals for the Second Circuit,

No. 14-4645 and consolidated cases].” See Exhibit G.

Sierra Club and NMFS are parties to the referenced

Cooling Water Intake Structure v. EPA case in the Second Circuit. The administrative record in that case

was due on July 13, 2015 (and, indeed, was filed on that

date). Thus, the anticipated date of completion in

NMFS’s March 4, 2015, email was August 13, 2015.

45. In July 2015, NMFS informed Sierra Club that

it would not complete its response to the FOIA request

by August 13, 2015, and that the new estimated completion date for the FOIA request would be October 30,

2015.

46. On or about August 3, 2015, Sierra Club received

a second partial production from NMFS consisting of

353 documents. See Exhibit H.

47. On or about September 10, 2015, Sierra Club

received a third partial production from NMFS consisting of 73 documents. See Exhibit I.

48. On September 29, 2015, NMFS notified Sierra

Club that it would be unable to complete its response to

the FOIA request by October 30, 2015, and anticipated

providing a final release of documents by January 31,

2016. See Exhibit J.

49. On November 2, 2015, Sierra Club received a

fourth partial production consisting of 268 emails and

attachments. In its November 2nd response, NMFS

redacted 75 documents and withheld 688 documents.

See Exhibit K.

50. On or about November 13, 2015, Sierra Club

submitted an administrative appeal to NMFS concerning NMFS’s excessive and undue delay in complying

with FOIA as well as NMFS’s misuse of the deliberative

process privilege to withhold responsive records. See

Exhibit L.

51. The statutory deadline for responding to Sierra

Club’s appeal was December 14, 2015, See 5 U.S.C.

§ 552(a)(6)(A)(ii) (20 business days). NMFS did not

timely respond to the appeal.

52. On or about December 11, 2015, Sierra Club

received a fifth partial production consisting of 268

emails and attachments. In its December 11th response, NMFS partially redacted 269 documents, fully

redacted 212 documents, and withheld 392 documents.

See Exhibit M.

53. More than sixteen months has now passed since

NMFS received Sierra Club’s FOIA request, NMFS has

repeatedly extended the date by which it would complete production of documents responsive to the

request, has not completed its production, and has unlawfully redacted and withheld responsive documents.

FWS’s Response.

54. FWS’s response to Sierra Club’s request has

been legally inadequate.

55. On or about January 8, 2016, after four interim

releases of documents, FWS completed its response to

the FOIA request. Over the course of these productions, FWS produced some documents, but partially

denied Sierra Club’s FOIA request by redacting 346

emails and withholding attachments.

56. On or about January 8, 2016, FWS informed Sierra Club that it had 30 business days (i.e., until February 19, 2016) to appeal the agency’s response. See

Exhibit N. On February 16, 2016, Sierra Club timely

appealed FWS’s response to its FOIA request. See

Exhibit O

57. The statutory deadline for responding to Sierra

Club’s appeal was March 15, 2016.

See 5 U.S.C.

§ 552(a)(6)(A)(ii) (20 business days). FWS did not

timely respond to the appeal.

VI. CLAIMS FOR RELIEF

FIRST CAUSE OF ACTION

Failure to properly and timely comply with

FOIA requirements

(Violation of FOIA, 5 U.S.C. §§ 552)

58. Plaintiff realleges and incorporates the allegations of all the preceding paragraphs of this Complaint

as if fully set forth herein.

59. By failing to properly and timely respond to

Sierra Club’s August 11, 2014 FOIA request and provide

all records responsive thereto, NMFS has violated

FOIA’s mandate to release agency records to the public.

See 5 U.S.C. §§ 552(a)(3)(A) and (a)(6).

60. By failing to timely make a determination with

respect to Sierra Club’s February 16, 2016 appeal, FWS

has violated FOIA’s mandate to respond to appeals

within 20 business days. See 5 U.S.C. § 552(a)(6)(A)(ii).

61. Defendants have wrongfully withheld the requested records from Sierra Club.

62. Sierra Club has exhausted any and all applicable

administrative remedies.

63. Sierra Club is entitled to obtain the requested

records immediately.

SECOND CAUSE OF ACTION

Improperly withholding responsive records

(Violation of FOIA, 5 U.S.C. §§ 552)

64. Plaintiff realleges and incorporates the allegations of all the preceding paragraphs of this Complaint

as if fully set forth herein.

65. Defendants have withheld documents, purportedly on the basis of FOIA exemptions, without meeting

their burden of establishing that the exemption applies.

66. Defendants have improperly withheld and redacted documents responsive to Sierra Club’s FOIA request that are not within the scope of the exemptions

asserted by Defendants.

67. Defendants have wrongfully withheld requested

records from Plaintiff.

68. Plaintiff has exhausted any and all applicable

administrative remedies.

69. Sierra Club is entitled to obtain the requested

records immediately.

VII. RELIEF REQUESTED

WHEREFORE, Plaintiff requests that this Court en-

ter an order and judgment:

a. Declaring that Defendants have violated

FOIA by failing to properly respond to Plaintiff ’s FOIA

request and provide all responsive records;

b. Declaring that Defendants have failed to comply with FOIA’s statutory deadlines.

c. Ordering that Defendants immediately produce all requested records to Plaintiff along with a

“Vaughn index” of any records withheld under claim of

exemption;

d. Ordering that Defendants produce any documents listed on its Vaughn index that the Court determines are not exempt from FOIA;

e. Awarding Plaintiff its litigation costs and reasonable attorneys’ fees in this action; and

f. Ordering such other and further relief as the

Court may deem just and proper.

Dated:

Mar. 22, 2015

Respectfully submitted,

SUPER LAW GROUP, LLC.

By:

/s/ REED W. SUPER

REED W. SUPER

Attorney for Plaintiff

Sierra Club

To:

noaa.gov]

Helen Golde — NOAA Federal[helen.golde@

Samuel Rauch — NOAA Federal[samuel.rauch@

noaa.gov]; Mary Beth Ward — NOAA Federal [mary.

beth.ward@noaa.gov]

From:

Stoner, Nancy

Sent:

Wed 10/2/2013 12:05:50 PM

Subject: RE: 316(b) consultation

Cc:

Helen,

Work on the 316(b) rule is not considered excepted because of the terms of the settlement agreement, which

allow us to seek an extension because of the gov’t shutdown. We will get the revised language to you and to

OMB promptly after the gov’t reopens.

Nancy

Helen Golde — NOAA Federal [mailto:

helen.golde@noaa.gov]

Sent:

Tuesday, Oct. 01, 2013 11:59 AM

To:

Stoner, Nancy

Cc:

Samuel Rauch — NOAA Federal; Mary Beth

Ward — NOAA Federal

Subject: 316(b) consultation

From:

Hi Nancy:

As you are aware, on June 18, 2013, NOAA Fisheries initiated formal consultation with EPA on its CWIS rule;

the Services and EPA agreed on August 29, 2013, as the

due date for final rule revisions. This final rule will

serve as the basis for the “Description of the Action” for

our Biological Opinion. Based on this schedule the

Services agreed to provide a draft biological opinion to

EPA on October 15, 2013 and a final opinion to EPA on

October 31, 2013, which would have allowed EPA to

meet its November 4 deadline to file the final rule with

the Federal Register.

Based on our conversations with EPA staff, EPA intends to provide another revised rule with ESA edits,

once those edits are approved by their administrators.

Until then, we cannot write the majority of the Biological Opinion, including the description of the action and

the effects analysis. However, as of the end of the

workday September 30, 2013, EPA has not provided us

the final revised rule incorporating our suggestions to

help EPA fulfill its obligations under Sec. 7 of the ESA.

Thus our biologists were not able to continue work on

the consultation prior to being furloughed this morning.

It is our assumption that you will be seeking an

extension with OMB to finalize this language and with

DOJ to seek an extension of your rule due date of November 4. If this is not the case or that is unsuccessful,

please contact Sam Rauch, NOAA Fisheries Deputy Assistant Administrator for Regulatory Programs (office:

301-427-8020; cell 301-938-6431; copied on this email),

and be will initiate the process to recall Jennifer

Schultz the consultation biologist. However, as noted

above, NMFS will need the final rule language before

recalling her.

Thank you,

Helen

-Helen M. Golde

Deputy Director

NOAA Fisheries

U.S. Department of Commerce

Office: 301-427-8400

Mobile: 240-429-0344

helen.golde@noaa.gov

www.nmfs.noaa.gov/pr/

“Sayers, Rick” <rick_sayers@fws.gov>

From:

“Sayers, Rick” <rick_sayers@fws.gov>

Sent:

Thu Oct 31 2013 06:48:27 GMT-0600 (MDT)

To:

“Wood, Robert” <wood.robert@epa.gov>

Subject:

Expectations for Completion of the 316(b)

Consultation

Rob—

Thanks for your call this morning. I would like to clarify our plans and make sure these will work for EPA and

FWS.

We had originally promised to deliver a draft BO within

30 days and a final BO within 45 days of receipt of the

revised regulation. With the exact date of the receipt

of the regulations still not set, and the Thanksgiving holiday period now encompassed by the time frame at issue,

I need to offer a revised expectation that I think will still

fit with the dates you and I discussed for a possible settlement extension.

With the assumption that we will receive a revised regulation no later than November 1, 2013, we would commit to deliver a draft BO to EPA no later than December

6th and a final BO (assuming prompt response from EPA)

no later than December 20th. These adjustments are

necessary to accommodate the approved leave requests

that our lead staff person has submitted. If there are

further delays in transmitting the revised regulations

beyond November 1, 2013, these dates will need to extend further out as our ability to conduct timely and

thorough review of the draft and final documents will be

hindered by several people (myself included) using large

blocks of leave starting around December 20th.

Rick Sayers

Chief, Division of Environmental Review

U.S. Fish & Wildlife Service — Ecological Services

4401 N. Fairfax Dr., Rm 420

Arlington, VA 22203

(703) 358-2442

“Sayers, Rick” <rick_sayers@fws.gov>

NOAA

From:

NOAA

Sent:

Tuesday, Dec. 03, 2013 5:21 PM

To:

Wendy Piniak — NOAA Affiliate

Subject:

Fwd:

BiOp

rollout plan for the EPA draft

Attachments: 316(b)draft_rollout 12_3_2013 PBL.docx;

ATT00638.htm

Hi Wendy,

To answer your other email, [REDACTED]? If you

want wording, you can use language from the rollout

(this is draft, Jonathan is working on final). Also, I will

be in tomorrow morning if you’d rather I do it.

Thanks!

Jenny

Sent from my iPhone

Begin forwarded message:

From:

Date:

To:

Jennifer Schultz — NOAA Federal

<jennifer.schultz@noaa.gov>

Dec. 3, 2013, 9:19:35 AM EST

Jonathan Shannon — NOAA Federal <jonathan.shannon@noaa.gov>

Subject: Re:

rollout plan for the EPA draft BiOp

Hello again,

With corrections to names/phone numbers.

Jennifer Schultz, Ph.D.

Endangered Species Act Interagency Cooperation

Division

Office of Protected Resources

NOAA Fisheries

U.S. Department of Commerce

301-427-8443

jennifer.schultz@noaa.gov

www.nmfs.noaa.gov

On Tue, Dec 3, 2013 at 8:21 AM, Jonathan Shannon

— NOAA Federal

<jonathan.shannon@noaa.gov> wrote:

Jenny,

Thank you, I have to finish the right whale rollout but

can review this later this morning or early afternoon.

Put me as the rollout lead instead of Christina

Durham.

NOAA PCO — Celeste Leroux 202-482-1172

NOAA Leg Affairs — Christina Durham 202-4825935

Tanya D. is detail to the Marine Mammal Commission, so she is no longer our leg affairs, it is Christina D.

We should also provide these talking points to Connie

Barclay in Public Affairs and Kate Naughten in Fisheries Communications so they are aware. I’ll add

them in during my edit.

Best,

Jonathan Shannon

Outreach Specialist

NOAA Fisheries Office of Protected Resources

U.S. Department of Commerce

Office: 301-427-8431

jonathan.shannon@noaa.gov

☒

Web

www.nmfs.noaa.gov/pr

Facebook

www.facebook.com/usnoaafisheriesgov

Twitter

www.twitter.com/noaafisheries

YouTube

www.youtube.com/usnoaafisheriesgov

On Mon, Dec 2, 2013 at 7:21 PM, Pam lawrence

<pamela.lawrence@noaa.gov> wrote:

Ron, I agree that it is likely that EPA will put this

draft on their docket. We should probably ask them

if they are going to.

I had a few comments on the attached. I put in the

heading that NMFS did not plan a public release. I

added “draft” a few places to clarify. I also added a

couple of bullets at the end about what happens next.

I am around tomorrow if anyone has questions. 301713-9672 or 240-328-9928.

On 12/2/2013 7:16 PM, Ron Dean — NOAA Federal

wrote:

EPA OW has a track record of putting these drafts

on their docket which then show up on regulations.

gov, so this is a really good idea.

On Mon, Dec 2, 2013 at 6:50 PM, Jennifer Schultz —

NOAA

Federal

<jennifer.schultz@noaa.gov>

wrote:

Hello everyone,

I apologize for the mass email, but we need to turn

this around quickly. F-suite has requested a rollout plan for the 316(b) draft opinion by COB tomorrow, and I know that Cathy, Helen, and Donna

are going to be on a retreat.

The draft roll-out plan is attached. I know that

you are busy reviewing the draft opinion, and it is

not necessary for everyone to review the roll-out

plan. Pam, can you review the draft, and Cathy

can you give the “OK” to send to Helen and

Donna?

I am also cc’ing Jonathan so that he is in the loop

(Jonathan, this is a draft, so it will not be posted

on our website, but I wanted you to be aware that

it is out there). Jonathan, do you have phone

numbers for Celeste and Christina? Also, do you

know if Tanya is still our legislative contact?

Thank you!

Jenny

Jennifer Schultz, Ph.D.

Endangered Species Act Interagency Cooperation Division

Office of Protected Resources

NOAA Fisheries

U.S. Department of Commerce

301-427-8443

jennifer.schultz@noaa.gov

www.nmfs.noaa.gov

☒

---------- Forwarded message ---------From: Brianne Smith — NOAA Federal

<brianne.smith@noaa.gov>

Date: Mon, Dec 2, 2013 at 6:10 PM

Subject: Re: rollout plan for the EPA draft

BiOp

To: Jennifer Schultz — NOAA Federal

<jennifer.schultz@noaa.gov>

Cc: Wendy Piniak — NOAA Affiliate <wendy.

piniak@noaa.gov>

No one’s in NOAA Policy now, so you can skip

that person. Celeste Leroux is the NOAA

PCO and Christina Durham would be the lead

for this action.

Thanks!!

Brianne

On Mon, Dec 2, 2013 at 5:58 PM, Jennifer

Schultz — NOAA Federal <jennifer.schultz@

noaa.gov> wrote:

Hi Brianna and Wendy,

No problem, I will put it together tonight

and send it out for review tomorrow. Do either of you have a recent roll-out plan so I

know who is currently serving in the various

roles (NOAA policy, etc.)?

Thanks,

Jenny

Jennifer Schultz, Ph.D.

Endangered Species Act Interagency Cooperation Division

Office of Protected Resources

NOAA Fisheries

U.S. Department of Commerce

301-427-8443

jennifer.schultz@noaa.gov

www.nmfs.noaa.gov

☒

On Mon, Dec 2, 2013 at 3:56 PM, Brianne

Smith — NOAA Federal <brianne.smith@

noaa.gov> wrote:

Hi Jenny,

If you want to roll out by Friday, ideally, I’d

like to have it by no later than COB

tomorrow/early Wed. I need to have some

time to circulate it for review. Do you

know (or can you find out) whether EPA

plans to make the draft available to anyone

(i.e., the Hill or OMB)? If you’d like Christina to reach out to her counterpart at EPA,

she can do that, but I wanted to check with

you first.

thanks,

Brianne

Also,

On Mon, Dec 2, 2013 at 3:37 PM, Jennifer

Schultz — NOAA Federal <jennifer.schultz@

noaa.gov> wrote:

Hi Wendy,

Yes, I can prepare something . . . can i

get it to you and Brianne by Wednesday

COB, or do you need it earlier?

100

Jenny

Jennifer Schultz, Ph.D.

Endangered Species Act Interagency Cooperation Division

Office of Protected Resources

NOAA Fisheries

U.S. Department of Commerce

301-427-8443

jennifer.schultz@noaa.gov

www.nmfs.noaa.gov

☒

On Mon, Dec 2, 2013 at 2:26 PM, Wendy Piniak — NOAA

Affiliate <wendy.piniak@noaa.gov> wrote:

Hi Jenny,

Just checking in for Brianne on the EPA

draft BiOp (scheduled for release still on

the 6th?) — do you have a draft rollout

plan she can send out for review?

Thanks!

Wendy

~~~~~~~~~~~~~~~~~~~~~

Wendy E. D. Piniak, Ph.D.

Protected Resources Office of the Director

NOAA Fisheries

Department of Commerce

Office: 301-427-8416

Mobile: 717-880-4793

101

wendy.piniak@noaa.gov

www.nmfs.noaa.gov/pr

-Brianne Smith

Office of the Assistant Administrator

National Marine Fisheries Service

NOAA

(301) 427-8022

brianne.smith@noaa.gov

-Brianne Smith

Office of the Assistant Administrator

National Marine Fisheries Service

NOAA

(301) 427-8022

brianne.smith@noaa.gov

-Ron Dean

Office of Protected Resources

NOAA National Marine Fisheries Service

1315 East-West Highway Rm. 13755

Silver Spring, MD 20910

301.427.8445

102

To:

From:

Sent:

Subject:

Stoner, Nancy[Stoner.Nancy@epa.gov]

Wood, Robert

Tue 12/3/2013 1:01:34 PM

Re: Plan to talk to Bob P about 316(b) and

ESA.

I believe it does no become public until the BiOps are

finalized. I’m checking to verify.

From:

Sent:

To:

Cc:

Subject:

Stoner, Nancy

Tuesday, Dec. 03, 2013 7:53:56 AM

Wood, Robert; Southerland, Elizabeth

Kopocis, Ken

Re: Plan to talk to Bob P about 316(b) and

ESA.

So is it public on Friday or just later it becomes public

that there was a draft BiOp with a jeopardy opinion?

From:

Sent:

To:

Cc:

Subject:

Wood, Robert

Tuesday, Dec. 03, 2013 7:51:37 AM

Stoner, Nancy; Southerland, Elizabeth

Kopocis, Ken

Re: Plan to talk to Bob P about 316(b) and

ESA.

As far as I know, Services plan to give EPA draf Jeopardy opinions for review this Friday 12/6. I am trying

103

to verify both the date and the type of opinion with Services and Cortney. Will let you know asap if any new

information.

Also, as you know from Jenny’s email, they plan to put

all meeting notes, emails and draft opinions in the record.

I expect to talk to Paul Souza sometime this morning to

catch up.

From:

Sent:

To:

Cc:

Subject:

Stoner, Nancy

Tuesday, Dec. 03, 2013 7:28:41 AM

Southerland, Elizabeth; Wood, Robert

Kopocis, Ken

Plan to talk to Bob P about 316(b) and ESA.

What intel do we have?

To:

From:

Sent:

Subject:

Stoner, Nancy[Stoner.Nancy@epa.gov]

Southerland, Elizabeth

Tue 12/3/2013 12:48:51 PM

Re: Plan to talk to Bob P about 316(b) and

ESA.

Will do. I will also tell him we will need to elevate if we

can’t get final OMB comments asap on non ESA issues.

104

From:

Sent:

To:

Subject:

Stoner, Nancy

Tuesday, Dec. 03, 2013 7:47:03 AM

Southerland, Elizabeth

Re: Plan to talk to Bob P about 316(b) and

ESA.

Maybe you should call Jim.

From:

Sent:

To:

Cc:

Subject:

Southerland, Elizabeth

Tuesday, Dec. 03, 2013 7:44:18 AM

Stoner, Nancy; Wood, Robert

Kopocis, Ken

Re: Plan to talk to Bob P about 316(b) and

ESA.

Rob wasn’t able to reach Courtney yesterday but can

keep trying today. In the meantime, Services confirmed their draft Biop expected this Friday will be in

the record.

From:

Sent:

To:

Cc:

Subject:

Stoner, Nancy

Tuesday, Dec. 03, 2013 7:28:41 AM

Southerland, Elizabeth; Wood, Robert

Kopocis, Ken

Plan to talk to Bob P about 316(b) and ESA.

What intel do we have?

105

Wellman, Lois

Drew Crane

Gary”s edits

Monday, Dec. 09, 2013 10:23:16 AM

316b_BiOp-Draft_V5 (1).docx

Attachment Withheld - b5 Deliberative Process

From:

To:

Subject:

Date:

Attachments:

Drew,

I made the edits Gary requested. Please refer to the

highlighted portion of the letter (2nd page) for Gary’s

instructions for you. He said to do the other stuff he

gave you first. Once this is done I can email him and

we have an autopen with his signature we can use to

send it out. Please let me know if you have any questions.

Lois

-Lois Wellman

AES Administrative Assistant

Office of the Assistant Director for Ecological Services

U.S. Fish & Wildlife Service

1849 C St. NW

MIB 3345

Washington, DC 20240

(202)208-4646/(202)208-5618 fax

Lois_Wellman@fws.gov

106

Kopocis, Ken[Kopocis.Ken@epa.gov]; Feldt,

Lisa[Feldt.Lisa@epa.gov;)

Neugeboren,

Steven

[Neugeboren.Steven@epa.gov]

From:

Garbow, Avi

Sent:

Thur 12/12/2013 8:32:54 PM

Subject: FW: Next steps

Draft RPA.docx

To:

See below and attached.

Avi Garbow

General Counsel

U.S. Environmental Protection Agency

(202) 564-8040

From:

Boling, Edward [mailto:ted.boling@sol.doi.

Sent:

To:

Cc:

Subject:

Thursday, Dec. 12, 2013 3:32 PM

Garbow, Avi

Lois J. Schiffer

Re: Next steps

gov]

Avi:

Attached per our conversations, are the current draft

RPAs for further discussion. I’ve heard from Gary

Frazer that Rob Wood has scheduled a meeting for tomorrow at 9:30am and that FWS is flying people back

from Denver in time for that meeting. Please feel free

to call me to discuss. If not reachable at the numbers

below, I’m always available at [REDACTED]

107

Best,

Ted Boling

Deputy Solicitor — Parks & Wildlife

U.S Department of the Interior

1849 C Street NW Washington, DC 20240

202-208-4423 (main)

202-208-3125 (direct )

202-208-5584 (fax)

Ted.Boling@sol.doi.gov

On Thu, Dec 12 2013 at 12:04 PM, Boling, Edward

<ted.boling@sol.doi.gov> wrote:

Avi — following up on vm, I’d like to touch base with

you about transmitting a document to EPA.

I’m available on the direct line below or on cell at [ RE-

DACTED]

Ted Boling

Deputy Solicitor — Parks & Wildlife

U.S Department of the Interior

1849 C Street NW

Washington, DC 20240

202-208-4423 (main)

202-208-3125 (direct)

108

202-208-5584 (fax)

Ted.Boling@sol.doi.gov

Kopocis, Ken[Kopocis.Ken@epa.gov]

Southerland, Elizabeth

Tue 12/17/2013 6:30:14 PM

FW: Services paper on RPA’s/conditions.

Revised Combined NMFS and USFWS RPA-12.17.

2013 noon PBL (3).docx

To:

From:

Sent:

Subject:

Elizabeth Southerland, Director

Office of Science & Technology

Office Water

Room 5233A - MC - 4301T

Washington, D.C. 20460

Direct: (202) 566-0328

Fax: (202) 566-0441

109

Lois Schiffer — NOAA Federal [mailto:lois.

schiffer@noaa.gov]

Sent:

Tuesday Dec. 17, 2013 12:15 PM

To:

Southerland, Elizabeth; Wood, Robert; Boling,

Ted; Rick Sayers; Christine Blackburn; Donna Wieting

— NOAA Federal; cathy.tortorici@noaa.gov; Jennifer Schultz — NOAA Federal; Pamela Lawrence —

NOAA Federal

Subject: Services paper on RPA’s/conditions.

From:

-Lois Schiffer

General Counsel

National Oceanic & Atmospheric Administration

U.S. Department of Commerce

Phone: 202-482-4080

Cell: 202-573-1583

Email: Lois.Schiffer@noaa.gov

110

United States Department of the Interior

FISH AND WILDLIFE SERVICE

Washington, D.C. 20240

In Response Refer To:

FWS/AES/DER/BCH/056189

Mr. Robert Wood

Director

Engineering and Analysis Division

Office of Water

U.S. Environmental Protection Agency

Washington, D.C. 20460

Dear Mr. Wood:

In accordance with section 7 of the Endangered Species

Act (ESA) of 1973, as amended (16 U.S.C. 1531

et seq.), and the Interagency Cooperation Regulations

(50 CFR 402), this transmits our final biological opinion

(Opinion) on the U.S. Environmental Protection

Agency’s (EPA) issuance and implementation of the final regulations implementing Section 316(b) of the

Clean Water Act (CWA). Section 7(a)(2) of the ESA of

1973, as amended (16 U.S.C. 1536(a)(2)), requires Federal agencies to insure that any action they authorize,

111

fund, or carry out is not likely to jeopardize the continued existence of any endangered or threatened species

or result in the destruction or adverse modification of

critical habitat. When a Federal agency’s action may

affect listed species or critical habitat, formal consultation with the National Marine Fisheries Service (NMFS)

and/or the U.S. Fish and Wildlife Service (USFWS) is

required (50 CFR 402.14(a)). EPA requested formal

consultation even though EPA was of the opinion that

its action would not cause adverse effects to listed species and critical habitat. After review of the proposed

regulation, biological evaluation, and other available

information we determined that the proposed action is

likely to adversely affect threatened and endangered

species and designated critical habitat.

Federal agencies may request a conference on a proposed action that may affect proposed species or proposed critical habitat. While the EPA request for consultation indicates proposed species were addressed in

the biological evaluation, a conference opinion was not

requested, nor was the information presented in the biological evaluation sufficient to complete a conference

opinion for all proposed species. Therefore, we are not

providing a conference opinion at this time.

EPA proposes to issue and implement final regulations

(40 CFR 122 and 125; Rule) to establish requirements

for cooling water intake structures (CWIS) at existing

facilities under section 316(b) of the CWA. This document transmits a joint NMFS and USFWS Opinion on

the proposed action and its effects on ESA-listed species

and designated critical habitat. We based our Opinion

on information provided in the draft Rule and Preamble,

the Services’ interpretations of that rule as agreed upon

112

by EPA on April 8, 2014, the biological evaluation for the

CWA section 316(b) Rulemaking provided by EPA on

June 18, 2013, consultation meetings, peer-reviewed publications, recovery plans, government reports, grey literature, scientific and commercial data, and other sources of

information. We prepared our Opinion in accordance

with section 7(a)(2) of the statute (16 U.S.C. 1536(a)(2)),

associated implementing regulations (50 CFR 402), and

agency policy and guidance (USFWS and NMFS 1998).

We appreciate your commitment in the conservation

of endangered species. If you require further assistance or have any questions, please contact Ms. Cathy

Tortorici, Chief, Interagency Cooperation Division,

NMFS, at 301-427-8495 or by e-mail at cathy.tortorici@

noaa.gov, or Ms. Patrice Ashfield, Chief, Branch of Consultations and Habitat Conservation Planning, USFWS,

at 703-358-2478 or by e-mail at patrice_ashfield@fws.gov.

Sincerely,

Attachment

113

Endangered Species Act Section 7 Consultation

Programmatic Biological Opinion

on the

U.S. Environmental Protection Agency’s

Issuance and Implementation of the

Final Regulations

Section 316(b) of the Clean Water Act

U.S. Fish and Wildlife

Service

Endangered Species

Program

Division of Environmental Review

Arlington, Virginia

National Marine Fisheries Service

Office of Protected

Resources

Endangered Species Act

Interagency Cooperation

Division

Silver Spring, Maryland

May 19, 2014

114

Table of Contents

1.0 Consultation History ................................................... 1

2.0 Description of the Proposed Action ........................... 2

2.1 EPA Requirements ............................................... 4

2.2 Owner or Operator Requirements ...................... 4

2.2.1 Permit Application ..................................... 5

2.2.3 BTA Standards for Impingement

Mortality .................................................................. 7

2.2.4 BTA Standards for Entrainment ............. 9

2.2.5 Monitoring .................................................. 9

2.2.6 Reporting ................................................... 10

2.2.7 Incidental Take ......................................... 11

2.3 Director Requirements ...................................... 11

2.3.1 Permit Application ................................... 12

2.3.2 Permit Requirements .............................. 12

2.3.3 Impingement ............................................. 14

2.3.4 Entrainment .............................................. 14

2.3.5 Monitoring and Reporting ...................... 16

2.3.6 Incidental Take ......................................... 16

2.3.7 Permit Modification ................................ 16

2.3.8 Permit Modification ................................ 17

3.0 Approach to the Assessment ..................................... 17

4.0 Action Area .................................................................. 18

5.0 Status of the Species .................................................. 21

6.0 Environmental Baseline............................................ 28

7.0 Effects of the Action .................................................. 35

7.1 Programmatic Approach ................................... 35

1.1.1 Scope .......................................................... 37

1.1.2 Stressors .................................................... 40

1.1.3 Minimization of likely adverse

effects ..................................................................... 56

115

1.1.4 Identifies, informs, encourages, and

screen applicants for potential eligibility

under the Rule ...................................................... 62

1.1.5 Monitoring and evaluation of

adverse effects ....................................................... 63

1.1.6 Compliance ................................................ 64

1.1.7 Adaptive management ............................. 65

8.0 Cumulative Effects .................................................... 66

9.0 Integration and Synthesis of Effects....................... 67

10.0 Conclusion ................................................................. 71

11.0 Incidental Take Statement ..................................... 75

12.0 Reasonable and Prudent Measures ........................ 76

13.0 Terms and Conditions .............................................. 76

14.0 Conservation Recommendations ............................ 78

15.0 Reintiation Notice .................................................... 78

16.0 Literature Cited ........................................................ 80

116

1.0

Consultation History

On July 9, 2004, U.S. Environmental Protection Agency

(EPA) promulgated regulations establishing requirements for Cooling Water Intake Structures (CWIS) at

existing facilities (69 FR 41576). On January 25, 2007,

the Second Circuit remanded parts of the regulations to

EPA (Riverkeeper, Inc., v. EPA, 475 F.3d 83 (2nd Circuit 2007) holding that EPA impermissibly balanced

costs and benefits in developing the requirements. On

July 9, 2007, EPA suspended the regulations (72 FR

37107). On April 1, 2009, the U.S. Supreme Court reversed, holding that EPA could consider costs and benefits in its regulatory decisions under section 316(b)

(Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208 (2009).

On November 22, 2010, EPA signed a settlement agreement with Riverkeeper, Inc. to establish rulemaking

dates, which included final action by July 27, 2012. On

July 17, 2012, the parties agreed to an amendment to extend the date for the final Rule until July 27, 2013.

On April 20, 2011, pursuant to section 316(b) of the

Clean Water Act (CWA), EPA proposed regulations establishing requirements for CWISs at existing facilities

(76 FR 22174). In its proposed Rule, EPA replaces with

amendments the suspended regulations establishing requirements for CWISs at existing facilities.

On July 20, 2012, EPA met with the National Marine

Fisheries Service (NMFS) to commence informal ESA

Section 7(a)(2) consultation.

On October 1, 2012, EPA met with the U.S. Fish and

Wildlife Service (USFWS) to commence informal ESA

section 7 consultation. The USFWS and NMFS (i.e.,

the Services) met with EPA numerous times to discuss

117

their action, its impacts to listed species, and measures

to minimize impacts.

On April 4, 2013, EPA sent the Services an early draft

of the Rule.

On April 12, 2013, the Services provided comments on

the early draft of the Rule.

On June 18, 2013, EPA submitted a section 7 consultation initiation package, which included the draft Rule,

draft Preamble, and biological evaluation. We initiated

formal consultation on June 18, 2013.

On June 27, 2013, EPA signed a modified settlement

agreement with Riverkeeper, Inc. to extend the date for

the final Rule until November 4, 2013, to allow for the

completion of formal section 7 consultation with the Services. This deadline was subsequently extended to

January 14, 2014 and then to April 17.

Between June 27 and November 4, the Services met

with EPA frequently to discuss EPA’s action.

On November 4, 2013, we received a revised version of

the proposed 316(b) Rule from Office of Management

and Budget.

On November 15, 2013, we sent the Description of the

Action to EPA for review.

On November 26, 2013, EPA sent corrections and comments on the Description of the Action and we incorporated their edits into the final Description of the Action.

From December 6, 2013, through March 11, 2014, the

Services and EPA engaged in numerous exchanges

about possible revisions to the processes embodied in

EPA’s draft final Rule.

118

On March 14, 2014, EPA sent the Services the final Rule

and Preamble.

On March 31, 2014, the Services provided EPA with a

document seeking clarification on the Services’ understandings of key elements in EPA’s proposed action).

On April 8, 2014, EPA provided confirmation on the Services’ description and understanding of the key elements of EPA proposed action. (Attached as Appendix

2.0

Description of the Proposed Action

EPA proposes to issue and implement a final Rule to establish requirements for CWIS at existing facilities and

modify certain requirements for new facilities under an

existing rule. EPA will amend specific parts of the

Rule, which implement section 316(b) of the CWA, that

had previously been suspended (72 FR 37107) in response to the 2nd Circuit Court of Appeals’ decision in

Riverkeeper, Inc., v. EPA. These parts include: 40

CFR 122.21(r)(1)(ii) and (5), 125.90(a), (c), and (d), and

125.91 through 125.99. In response to the Court’s remand, EPA in its final regulation also proposes to remove the restoration-based compliance alternative and

associated monitoring and demonstration requirements

for new facilities (125.84(c) and (d)(1)) 1 . In addition,

EPA proposes to modify other parts of its regulations

The removal of the restoration-based compliance alternative and

associated monitoring and documentation requirements for new facilities are non-discretionary actions on the part of EPA and therefore, the effects of these actions are not being addressed in this biological opinion.

119

implementing section 316(b) to establish new requirements for all existing power generating facilities and existing manufacturing and industrial facilities that withdraw more than two million gallons of water per day

(mgd) from waters of the United States and use at least

25 percent of the water they withdraw exclusively for

cooling purposes (76 FR 22173). In summary, in response to litigation, EPA will issue a final Rule to establish modified or new requirements for facilities that withdraw water for CWIS.

Section 316(b) of the CWA requires that the location, design, construction, and capacity of CWIS reflect the best

technology available (BTA) for minimizing adverse environmental impacts. Under the regulation, the term

“cooling water intake structure” means the total physical structure and any associated waterways used to withdraw cooling water from waters of the United States.

For purposes of the final Rule, adverse environmental

impacts include, but are not limited to, impingement and

entrainment at CWIS, including adverse effects to federally-listed species (species listed as threatened or endangered under the ESA or ESA-listed species) and

designated critical habitat, and changes in flow regime,

caused by the withdrawal of water. Impingement is

defined as the entrapment of any life stages of fish and

shellfish on the outer part of an intake structure or

against a screening device during periods of intake water withdrawal. Entrapment is defined as the condition where impingeable fish and shellfish lack the means

to escape the cooling water intake. Entrainment is defined as any life stages of fish and shellfish in the intake

water flow entering and passing through a cooling water

intake structure and into a cooling water system, including the condenser or heat exchanger.

120

EPA tailored the Rule toward the protection of fish and

shellfish. However, federally-listed aquatic organisms

that do not fall into the classification of fish and shellfish

are also impacted by impingement, entrainment, and entrapment (e.g., manatees, turtles). The Rule provides

that the Director may establish in the permit additional

control measures, monitoring and reporting requirements that are designed to minimize incidental take, reduce or remove more than minor detrimental effects (as

defined on page 4 of this Opinion) to federally-listed species and designated critical habitat, or avoid jeopardizing federally-listed species or destroying or modifying

designated critical habitat. As such, and based on communication received from EPA on April 8, 2014, (Appendix A), the Rule’s application to “fish and shellfish” and

the Director’s authority to establish additional

measures to protect listed species and habitat will encompass all taxa of listed species, including their critical

habitat. This consultation also considers the direct and

indirect effects to federally-listed species caused by facilities operating CWIS under requirements of the Rule,

including but not limited to; impingement, entrainment,

loss of prey, changes in water quality, and flow alteration.

The Rule regulates existing facilities and new units at

existing facilities that withdraw cooling waters from waters of the United States and have, or require, a National Pollutant Discharge Elimination System

(NPDES) permit, issued under section 402 of the CWA.

The NPDES permit program is administered by State

Directors in authorized States. However, EPA retains

the NPDES permit program for facilities located in:

Idaho, Massachusetts, New Hampshire, New Mexico, Dis-

121

trict of Columbia, American Samoa, Guam, Johnston Atoll, Midway Island, Northern Mariana Islands, Puerto

Rico, and Wake Island, as well as certain Federal facilities and facilities located on Tribal Lands.

The Rule applies to owners or operators of existing facilities with CWISs that withdraw > 2 mgd and use at

least 25 percent of the water for cooling purposes. It

also applies to the State or EPA Regional Director (i.e.,

the Director 2 ), who establishes controls under CWA

Section 316(b) authority on withdrawals through the

NPDES permitting process.

Regulatory requirements are described in full in the Rule (40 CFR 122 and

40 CFR 125) and further explained in the Preamble.

Here, we summarize the Rule, Preamble and relevant

correspondence from EPA to describe EPA’s action

with sufficient detail to evaluate its impact on ESAlisted species and designated critical habitat.

2.1

EPA Requirements

When EPA is the NPDES permitting authority and has

determined the issuance of the permit may affect ESAlisted species or designated critical habitat, they then

must request consultation under section 7(a)(2) of the

ESA. As discussed in Section 2.3, regarding State or

Tribal-issued CWIS permits, in the Preamble, EPA reaffirms its commitment to the procedures stipulated in

the 2001 Memorandum of Agreement (MOA) signed by

EPA, and the Services (66 FR 11202). EPA has incorporated as part of its action relevant sections of the

MOA, as described in the Preamble to the Rule and,

based on correspondence with EPA received on April 8,

See 40 CFR 122.2 for the Definition of Director as used in the

Rule.

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2014 (attached as Appendix A), EPA commits to the following implementation of their NPDES oversight authorities in situations where the Services contact EPA

with concerns that a State or Tribal permit will have

than

minor

detrimental

effects

federally-listed species or critical habitat that cannot be

resolved with the State or Tribal permitting authority:

EPA will coordinate with the State or Tribe to

ensure that the permit will comply with all applicable CWA requirements and will discuss appropriate measures protective of federally-listed

species and critical habitat;

ii.

EPA will work with the State or Tribe to reduce

or remove the detrimental impacts of the permit,

including, in appropriate circumstances, by objecting to and federalizing the permit where consistent with EPA’s CWA authority; and

iii. EPA will exercise the full extent of its CWA authority, to object to a permit proposed by a State

where EPA finds (giving deference to the views

of the Services) that a State or Tribal permit is

likely to jeopardize the continued existence of

such species or result in the destruction or adverse modification of such critical habitat.

Based on correspondence received from

EPA on April 8, 2014, EPA will give deference to the views of the Services with regard to effects on federally-listed fish and

wildlife resources.

EPA has stated adverse environmental impacts include adverse effects to listed species (USEPA

2013f ), and Section 316(b) of the CWA requires that

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the location, design, construction, and capacity of

CWIS reflect the BTA for minimizing adverse environmental impacts.

Further, the phrase “more

than minor detrimental effects” as used in the Rule,

Preamble to the Rule, the 2001 MOA, and in EPA’s

commitment to the implementation of their NPDES

oversight authorities as described above, means “adverse effects” as that term is used in the ESA implementing regulations, consultation handbook, and MOA

(66 FR 11207) and is one type of “adverse environmental impact” as that term is used under section 316(b)

of the CWA. EPA has also defined minimize in the

Rule as “to reduce to the smallest amount, extent, or

degree reasonably possible.” In summary, EPA will

exercise its oversight authority on proposed/draft permits where the Services contact EPA with concerns

that a State or Tribal permit will have more than minor detrimental effects on Federally-listed species or

designated critical habitat. Such situations may include where a permit does not minimize adverse effects

to listed species to the smallest amount, extent, or degree reasonably possible.

2.2

Owner or Operator Requirements

In the Rule, EPA establishes certain requirements of

the owner or operator of an existing facility * * * .

6.0

Environmental Baseline

Clean Water Act

Several laws and regulations have been put in place to

help improve the state of our aquatic resources, the

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principal one being the CWA. The original 1948 statute was totally re-written in 1972 to produce its current

purpose: “to restore and maintain the chemical, physical,

and biological integrity of the Nation’s waters” (Federal

Water Pollution Control Act, Public Law 92-500).

Congress made substantial amendment to the CWA

in the Water Quality Act of 1987 (P.L. 100-4) in response to the significant and persistent water quality

problems.

To achieve its objectives, the CWA generally prohibits

all point source discharges into the nation’s waters, unless otherwise authorized under the CWA. One of the

main ways that point source discharges are regulated is

through permits issued under the NPDES authorized under the CWA. For example, the NPDES program regulates discharges of pollutants like bacteria, oxygenconsuming materials, and toxic pollutants like heavy

metals, pesticides, and other organic chemicals. EPA

has also promulgated regulations setting effluent limitations guidelines and standards under sections 301,

304, and 306 of the CWA for more than 50 industries [40

CFR parts 405 through 471]. These effluent limitations guidelines and standards for categories of industrial dischargers are based on pollutants of concern discharged by industry; the degree of control that can be

attained using pollution control technology; consideration of various economic tests appropriate to each level

of control; and other factors identified in sections 304

and 306 of the CWA (such as non-water quality environmental impacts including energy impacts) (F76 FR

22174-22288). These effluent limitations have been credited for helping reduce the amount of pollutants like

toxic metals entering the aquatic environment (Smail et

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al 2012). While provisions of the CWA have helped significantly improve the quality of aquatic ecosystems,

nonpoint sources of water pollution, which are believed

to be responsible for the majority of modern water quality problems in the United States, are not subject to CWA

permits or regulatory requirements. Instead, nonpoint

sources of pollution are regulated by programs overseen

by the States.

Water quality is important to all of the listed resources

identified above in Tables 2 and 3. In some cases, the

deterioration of water quality has led to the endangerment of aquatic species; in all cases, activities that

threaten water quality also threaten these listed resources. Endangered and threatened species have experienced population declines that leave them vulnerable to a multitude of threats. Because of reduced abundance, low or highly variable growth capacity, and the

loss of essential habitat, these species are less resilient

to additional disturbances. In larger populations, stressors that affect only a limited number of individuals could

once be tolerated by the species without resulting in

population level impacts, whereas in smaller populations, the same stressors are more likely to reduce the

likelihood of survival. It is with this understanding of

the environmental baseline that we consider the effects

of the proposed action, including the likely effect that

CWIS’s will have on endangered and threatened species and their designated critical habitat.

Impingement and Entrainment

In the biological evaluation (pages 3, 10, 21-36, and others), EPA describes impingement and entrainment as

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potential stressors likely to be produced as a result of its

action. Impingement affects juvenile (e.g., young- ofyear) and adult stages of ESA-listed species, while entrainment affects vulnerable early life stages (USEPA

2013c). As stated in the biological evaluation, impingement and entrainment from CWIS:

“. . . may represent a substantial portion of annual

reproduction.

Consequently, [impingement and

entrainment] may either lengthen species recovery

time, or hasten the demise of these species much

more so than for species that are abundant. For

this reason, the population-level and social values of

[ESA-listed species] losses are likely to be disproportionately higher than the absolute number of losses

that occur. Unfortunately, available quantitative and

qualitative data on the effects of CWIS on [ESAlisted] species are extremely limited. However, it is

known that adverse effects of CWIS on [ESA-listed]

species may occur in several ways:

•

Individual organisms among [ESA-listed]

species may suffer direct mortality as a consequence of impingement and entrainment.

This direct loss of individuals may be particularly important because [ESA- listed] species have severely depressed population levels that are approaching local, national, or

global extinction.

•

Individuals may suffer injury, which may reduce survival probability, reproductive potential and fitness.

•

[ESA-listed] species may suffer indirect

harm if the CWIS substantially alters the

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food web in which these species interact.

This might occur as a result of altered populations of predator or prey species, the removal of foundation species, or (for species

with parasitic life history stages) the loss of

host species.”

The biological evaluation provided limited data regarding the effect of impingement and entrainment on ESAlisted species. However, we were able to accumulate

some information from a small subset of facilities that

have completed section 7 consultations or habitat conservation plans regarding the effect of impingement and

entrainment to sea turtles. We analyzed data from 14

facilities representing 7 to 33 years of monitoring per

facility. Annual entrapment at each facility ranged

from 0 to 949 turtles. For all facilities during all years,

a total of 15,595 turtles were entrapped, an average of

46 turtles per facility per year (standard deviation =

165). The annual number of deaths at each facility was

between 0 to 28 turtles. Data presented by the facilities for all years indicated that a total of 385 entrapped

turtles died. This data represents a minimized impact

on sea turtles that can be expected from impingement

and entrainment, as the facilities summarized here had

worked with NMFS through the ESA section 7 or the

section 10 process to reduce their impacts on sea turtles.

For further information on potential impacts to sea turtles, see Appendix C.

While quantitative and qualitative data on the effects of

CWIS on the suite of ESA-listed species that may be affected by implementation of the Rule is limited, effects

to more common species have been documented through

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various monitoring studies conducted at individual facilities. These studies provide further insight as to the

effect impingement and entrainment may have on federally-listed species. For example, Bay Shore Power

Plant located on Lake Erie near the mouth of the

Maumee River conducted an impingement and entrainment study in 2005 and 2006. At the time of the study,

the plant took in an estimated 638 million gallons of

water/day for cooling water purposes (Ager et al 2008).

The study estimated over 2.2 billion larval fish (approximately 10 percent of the larval population in the river),

208 million fish eggs, and 13 million juvenile fish were

entrained on an annual basis. Additionally, an estimated 46 million fish were impinged annually (Ager et

al 2008). While four species comprised the majority of

entrainment and impingement losses, over 50 different

species of fish were impinged or entrained during the

course of the study.

An ecological assessment prepared by the U.S. Army

Corps of Engineers (USACE) for the Upper Mississippi

River and Illinois Waterways in 2000 provides a summary of the aggregate effects of impingement and entrainment from multiple facilities along a watercourse.

The assessment contained a review of impingement and

entrainment rates of fish attributed to 40 power plants.

Eleven of the 40 plants had studies on impingement and/or

entrainment rates, with most studies being 15 to 20 years

old (West 2000). From the data available, the USACE

estimated six of the power plants accounted for over 64

million fish entrained and over 56 million fish impinged

on an annual basis (West 2000). Similar to the Bay

Shore study, over 50 different species of fish were impa

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