The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION DENYING WITHOUT PREJUDICE RENEWED APPLICATION FOR TEMPORARY RESTRAINING ORDER (DOC. 562)
Plaintiffs, San Luis & Delta Mendota Water Authority (the "Authority") and Westlands Water District ("Westlands"), move for a Temporary Restraining Order ("TRO") against the implementation of Reasonable and Prudent Alternative ("RPA") Component 1, Action 2 set forth in the United States Fish and Wildlife Service's ("FWS") December 15, 2008 Biological Opinion, which addresses the impacts of the coordinated operations of the federal Central Valley Project ("CVP") and State Water Project ("SWP") on the threatened delta smelt (Hypomesus transpacificus ) ("2008 Smelt BiOp"). Doc. 562, filed Feb. 9, 2010.
Plaintiffs State Water Contractors; Metropolitan Water District of Southern California; Kern County Water Agency and Coalition for a Sustainable; Stewart & Jasper Orchards, et al.; and Family Farm Alliance joined the TRO motion. Docs. 571-75. Intervenor California Department of Water Resources ("DWR"), the operator of the SWP, filed a statement of non-opposition. Doc. 570. The motion came on for hearing, on shortened notice, on February 2, 2010. The parties were represented by counsel, as noted in the record.
The 2008 Smelt BiOp, prepared pursuant to Section 7 of the Endangered Species Act ("ESA"), 16 U.S.C. § 1536(a)(2), concluded that "the coordinated operations of the CVP and SWP, as proposed, are likely to jeopardize the continued existence of the delta smelt" and "adversely modify delta smelt critical habitat." 2008 Smelt BiOp at 276-78. As required by law, the BiOp includes an RPA designed to allow the projects to continue operating without causing jeopardy or adverse modification. Id. at 279. The RPA includes various operational components designed to reduce entrainment of smelt during critical times of the year by controlling and reducing water flows in the Delta. Id. at 279-85.
Component 1 (Protection of the Adult Delta Smelt Life Stage) consists of two Actions related to Old and Middle River ("OMR") flows. Action 1, which is designed to protect upmigrating delta smelt, is triggered during low and high entrainment risk periods based on physical and biological monitoring. Action 1 requires OMR flows to be no more negative than -2,000 cubic feet per 10 second ("cfs") on a 14-day average and no more negative than -11 2,500 cfs for a 5-day running average. Id. at 281, 329. At issue in this case is Action 2 of Component 1, which is designed to protect adult delta smelt that have migrated upstream and are residing in the Delta prior to spawning. Action 2 is triggered immediately after Action 1 ends or if recommended by the Smelt Working Group ("SWG"). Flows under Action 2 can be set within a range from -5000 to -1250 cfs, depending on a complex set of biological and environmental parameters. Id. at 281-282, 352-56. Component 2 (Protection of Larval and Juvenile Delta Smelt), requires OMR flows to remain between -1,250 and -5,000 cfs beginning when Component 1 is completed, when Delta water temperatures reach 12° Celsius, or when a spent female smelt is detected in trawls or at salvage facilities. Id. at 282, 357-27 358. Component 2 remains in place until June 30 or when the Clifton Court Forebay water temperature reaches 25° Celsius. Id. at 282, 368.
Component 3 (Improve Habitat for Delta Smelt Growth and Rearing) requires sufficient Delta outflow to maintain average mixing point locations of Delta outflow and estuarine water inflow ("X2") from September to December, depending on water year type, in accordance with a specifically described "adaptive management process" overseen by FWS. Id. at 282-283, 369. Under Component 4 (Habitat Restoration), DWR is to create or restore 8,000 acres of intertidal and subtidal habitat in the Delta and Suisun Marsh within 10 years. Id. at 283-284, 379. Under Component 5 (Monitoring and Reporting), the Projects gather and report information to ensure proper implementation of the RPA actions, achievement of physical results, and evaluation of the effectiveness of the actions on the targeted life stages of delta smelt, so that the actions can be refined, if needed. Id. at 284-285, 328, 375, 37. On February 8, 2010, Federal Defendants gave Plaintiffs 48 hours notice, required by the Court, that they planned to implement Component 1, Action 2 as of 5:00PM February 10, 2010.*fn1 The SWG recommended that protective measures were necessary in part because, since February 3, a total of 5 delta smelt had been salvaged at the pumps. See Doc. 579-3, Smelt Working Group Notes, Feb. 8, 2010. (Because the salvage facility only operates for a portion of the day, observed salvage figures are routinely multiplied by four, to achieve an "expanded salvage" number of 20.) As of the hearing on this motion, the cumulative expanded salvage for the year stood 24 (or 6 fish). Id.
The total allowable take for the entire water year is 123, meaning that salvage has already reached 20% of the take limit for this year. Although the majority of the SWG recommended that OMR flows be set at -2000 cfs to accommodate water contractors, FWS determined that an adaptive approach could be implemented, pursuant to which OMR flows would initially be limited to no more negative than -4000 cfs. If observed salvage exceeds 1 smelt per day (for an expanded take of 4), flows will be further decreased by 1000 cfs, a process that is to continue until salvage is reduced to no more than 1 smelt per day, flows average no more negative than -1250 cfs, or the SWG makes a revised recommendation. See Doc. 579-3, FWS Determination of Actions Required Under Component 1 of the 2008 OCAP Biological Opinion, Feb. 8, 2010.
III. SUMMARY OF PLAINTIFFS' MOTION
Plaintiffs seek temporary injunctive relief on the grounds that: (1) the district court has already found that the United States Bureau of Reclamation ("Reclamation") failed to comply with the National Environmental Policy Act ("NEPA") in implementing the 2008 Smelt BiOp RPAs; and.
(2) the 2008 Smelt BiOp violates the ESA and is arbitrary, capricious, and contrary to law because:
(a) FWS has failed to show that limiting entrainment is necessary to avoid jeopardy, because, among other things, the best available science does not demonstrate a statistically significant connection between entrainment and smelt abundance from year to year, and the smelt are not present in sufficient numbers at or near the pumps to expose them to jeopardy; and (b) the severe OMR flow restrictions in RPA Action 2 are unsupported buy the data in the 2008 Smelt BiOp. Plaintiffs further claim that the implementation of Component ...