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South Yuba River Citizens League v. National Marine Fisheries Service

June 15, 2009

SOUTH YUBA RIVER CITIZENS LEAGUE, A NON-PROFIT CORPORATION, AND FRIENDS OF THE RIVER, A NON-PROFIT CORPORATION; PLAINTIFFS,
v.
NATIONAL MARINE FISHERIES SERVICE, CAROLOS M. GUIERREZ, AS SECRETARY OF COMMERCE, RODNEY MCINNIS, AS REGIONAL ADMINISTRATOR OF THE NATIONAL MARINE FISHERIES SERVICE SOUTHWEST REGION, UNITED STATES ARMY CORPS OF ENGINEERS, PETE GEREN, AS ACTING SECRETARY OF THE ARMY, COLONEL RONALD L. LIGHT, AS DISTRICT ENGINEER, SACRAMENTO WATER DISTRICT, AND YUBA COUNTY WATER AGENCY, DEFENDANTS.
DRY CREEK MUTUAL WATER COMPANY, BROPHY WATER DISTRICT, HALLWOOD IRRIGATION COMPANY, RAMIREZ WATER DISTRICT, AND CORDUA IRRIGATION DISTRICT DEFENDANT -- INTERVENORS.



RESTATED STIPULATION OF SETTLEMENT BETWEEN PLAINTIFFS AND DEFENDANT YUBA COUNTY WATER AGENCY; [AMENDED] ORDER DISMISSING PLAINTIFFS' CLAIMS AND RELIEF AGAINST YCWA

Plaintiffs South Yuba River Citizens League and Friends of the River, and defendant Yuba County Water Agency, in that certain litigation styled South Yuba River Citizens League, et al. v. National Marine Fisheries Service, et al., Case No. 2:06-CV-02845-LKK-JFM, by and through 4 their respective attorneys of record, hereby stipulate and agree as follows: Definitions As used herein, the following terms shall have the following meanings:

(a) "Best efforts" shall mean diligently pursue implementation of the referenced procedure, improvement, or process, subject to and in accordance with all applicable laws, without unnecessary delay.

(b) "Brophy Diversion" shall mean the South Yuba-Brophy Diversion constructed by the South Yuba Water District and Brophy Water District in the mid-1980s, including the fish screen.

(c) "CDFG" shall mean the California Department of Fish and Game.

(d) "CEQA" shall mean the California Environmental Quality Act (Pub. Resources Code, §§ 21000 et seq.) and the CEQA Guidelines (California Code of Regulations, title 14, §§ 15000 et seq.).

(e) "Corps" shall mean United States Army Corps of Engineers.

(f) "Effective Date" shall mean the date the Court issues its Order approving this Settlement.

(g) "ESA" shall mean the Endangered Species Act, 16 U.S.C. §§ 1531 et seq.

(h) "Federal Defendants" shall mean National Marine Fisheries Service, Rodney McInnis, Gary Locke, United States Army Corps of Engineers, Pete Geren, and Col. Thomas C. Chapman.

(i) "FOR" shall mean Friends of the River on behalf of itself, its officers, its directors, its members, its successors, its assigns and all those in privity with it.

(j) "Listed Species" shall mean the Central Valley spring-run Chinook salmon and Central Valley steelhead, which are listed as threatened species under the ESA.

(k) "NMFS" shall mean National Marine Fisheries Service.

(l) "Plaintiffs" shall mean individually and collectively SYRCL and FOR as well as their officers, directors, members, successors, assigns and all those in privity with either SYRCL and FOR.

(m) "Settlement" means this Stipulation of Settlement.

(n) "Settlement Party" or "Settlement Parties" shall mean any or all Plaintiffs and YCWA.

(o) "SYRCL" shall mean South Yuba River Citizens League on behalf of itself, its officers, its directors, its members, its successors, its assigns and all those in privity with it.

(p) "[T]he 1984 agreement between South Yuba and CDFG" means the Exhibit A to Declaration of Curt Aikens in Support of YCWA's Opposition to Plaintiffs' Motion for Preliminary Injunction (Document 219-2) filed in this Action.

(q) "[T]his Action" means South Yuba River Citizens League, et al. v. National Marine Fisheries Service, et al., Case No. 2:06-CV-02845-LKK-JFM.

(r) "YCWA" shall mean the Yuba County Water Agency.

THIS SETTLEMENT

1. Currently pending before this Court is Plaintiffs' Renewed Motion for Preliminary Injunction regarding Plaintiffs' Sixth Claim for Relief (for violations of the ESA) against YCWA in addition to other claims alleged against the Federal Defendants. Plaintiffs and YCWA have reached agreement on the resolution of Plaintiffs' Sixth Claim for Relief in the Sixth Amended Complaint as well as all relief relating to the Brophy Diversion, on the terms and conditions stated in this Settlement.

2. The Settlement Parties agree that a goal of this Settlement is to improve conditions for Listed Species at the Brophy Diversion by implementation of the procedures, processes and improvements as set forth in herein. The Settlement Parties also agree that a goal of this Settlement is to avoid any adverse water supply impacts that may result from improving conditions for Listed Species at the Brophy Diversion.

3. The Settlement Parties acknowledge that, in addition to certain specified obligations, this Settlement establishes a framework for accomplishing processes set forth in this Settlement, specifically the process for reducing potential predation in the channel leading to the Brophy Diversion by partially filling in the channel, and that completion of this process may require the performance of activities, such as environmental review, design, and construction, the details of which will be developed subsequently under the terms of this Settlement. The Settlement Parties further acknowledge that the implementation of this Settlement may occur over several years and agree to cooperate in good faith to achieve the goals of this Settlement. YCWA agrees to diligently pursue implementation of the goals as set forth in this Settlement.

4. Plaintiffs acknowledge that YCWA has initiated environmental review for a project to build a new fish screen at the Brophy Diversion that meets NMFS and CDFG screening criteria, but that until the status of Daguerre Point Dam is resolved, installation of a new fish screen at the Brophy Diversion may not be practicable. Plaintiffs further acknowledge that upon completing installation of a new fish screen at the Brophy Diversion that meets NMFS and CDFG screening criteria, the provisions in this Settlement will no longer be necessary.

Debris Inspection and Removal Procedure Provision

5. YCWA will inspect the feeder and return channels at the Brophy Diversion for debris two times per week throughout the year with the exception of any week during the month of October when no diversions are occurring. During any week in the month of October when no diversions are occurring at the ...


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