United States District Court, E.D. California
AQUALLIANCE, a non-profit corporation, and CALIFORNIA SPORTFISHING PROTECTION ALLIANCE, a non-profit corporation, Plaintiffs,
UNITED STATES BUREAU OF RECLAMATION, a federal agency; RICHARD J. WOODLEY, in his official capacity; LOWELL PIMLEY, in his official capacity; and DAVID MURILLO, in his official capacity, Defendants, SAN LUIS & DELTA-MENDOTA WATER AUTHORITY, et al., Defendant-Intervenors.
MEMORANDUM DECISION AND ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION (DOC. 7)
LAWRENCE J. O'NEILL, District Judge.
Plaintiffs AquAlliance and the California Sportfishing Protection Alliance ("Plaintiffs"), both non-profit environmental organizations, bring this lawsuit against the United States Bureau of Reclamation ("Reclamation" or "the Bureau"), as well as various federal officers (collectively, "Federal Defendants"), alleging that the Bureau violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq., by approving the "2014 San Luis & Delta-Mendota Water Authority Water Transfer Project" (the "2014 Transfer Project"), which would permit water rights holders or contractors north of the Sacramento-San Joaquin Delta ("Delta") to sell water to members of the San Luis & Delta-Mendota Water Authority ("SLDMWA"), whose members then would make use of the water in areas that lie south of the Delta. Doc. 1 ("Compl.") at ¶ 57. The Bureau's role would be to review any proposed transfers and facilitate those transfers by conveying the water through the Delta by way of the Jones and Banks Pumping Plants and the Delta-Mendota Canal. Id.
In April 2014, the Bureau issued an Environmental Assessment ("EA") and approved a Finding of No Significant Impact ("FONSI") for the 2014 Transfer Project under NEPA, 42 U.S.C. § 4321, et seq. Among other things, the EA and FONSI state that "[s]pecial status fish species, " such as the Delta smelt, "are generally not in the Delta during the transfer period (July-September) and effects to these fish species from transferring water during this timeframe were considered in the [National Marine Fisheries Service and U.S. Fish and Wildlife Service Biological Opinions]." Declaration of Kaylee Allen ("Allen Decl."), Doc. 33-1, Ex. 2 ("Final EA") at 3-13; Allen Decl., Ex. 3 ("FONSI") at 8.
Plaintiffs allege that the Bureau's approval of the 2014 Transfer Project violated NEPA in two ways. First, Plaintiffs assert that the Final EA and FONSI's conclusion that Delta smelt will not be present in the interior Delta is arbitrary and capricious because it fails to acknowledge that, due to hydrologic conditions and pumping practices, the low-salinity zone ("LSZ"), in which Delta smelt normally reside during the relevant time of the year, will move into the central Delta this year. Doc. 8 at 14. Plaintiffs also assert that the Bureau should have prepared a supplemental EA to take into consideration "significant new information" that ostensibly emerged after the issuance of the EA, namely (1) the May 2, 2014 State Water Resources Control Board ("SWRCB") order that relaxed Delta water quality standards; and (2) an analysis performed by Plaintiffs' expert, Tom Cannon, that purports to show that the method used to estimate Delta outflow for management purposes underestimates actual Delta outflow. Id. at 11.
This case was originally filed in the Sacramento Division of the Eastern District of California, but was transferred to the undersigned in the Fresno Division pursuant to Local Rule 123 (Related Cases). Doc. 24. On June 23, 2014, the Court granted the unopposed petition for intervention of SLDMWA and Westlands Water District, one of SLDMWA's member water districts (collectively, "Defendant-Intervenors"). Doc. 31.
Before the Court is Plaintiffs' motion for a preliminary injunction that would bar Federal Defendants from approving or carrying out any water transfers under the 2014 Transfer Project. Doc. 8. Although Plaintiffs' motion was not filed until June 13, 2014, in light of the allegation that transfers are scheduled to take place between July 1, 2014 and September 30, 2014, Plaintiffs' motion to shorten time was granted and a hearing was set for July 10, 2014. See Docs. 14 & 22. Federal Defendants and Defendant Intervenors filed oppositions on June 27, 2014. See Docs. 33 & 48. Plaintiffs filed a reply on July 3, 2014. Doc. 64. On July 7, 2014, the Court requested supplemental briefing on several discrete legal issues and vacated the July 10 hearing. Doc. 71. The parties responded to the Court's request on July 9, 2014. Docs. 72-74. Having reviewed the entire record, the Court finds this matter suitable for decision on the papers pursuant to Local Rule 230(g). As set forth below, the Court finds that Plaintiffs are not likely to succeed on the merits of the NEPA claims presented and that, therefore, the pending motion for a preliminary injunction must be DENIED.
II. STANDARD OF DECISION
In order to secure injunctive relief prior to a full adjudication on the merits, a plaintiff must show "that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7, 20 (2008). Injunctive relief is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Id. at 22.
The Ninth Circuit follows a "sliding scale" approach to preliminary injunctions. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011). Under this approach, a weaker showing as to the likelihood of success on the merits may be offset by a stronger showing with respect to the balance of the equities. Id. at 1131-32. For example, if the moving party is unable to establish a likelihood of success on the merits, preliminary injunctive relief may still be had if the movant can show that (1) there are at least "serious questions" going to the merits; (2) the balance of the hardships tips "sharply" in its favor; and (3) the other factors listed in Winter ( i.e., irreparable harm and in the public interest) are satisfied. Id. at 1135. "Serious questions" in the context of preliminary injunctive relief are those that are "substantial, difficult, and doubtful, as to make them a fair ground for litigation and thus for more deliberative investigation." Republic of Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988) (citation and internal quotation marks omitted). They do not need to "promise a certainty of success, nor even present a probability of success, but must involve a fair chance of success on the merits." Id. (citation and internal quotation marks omitted).
The Central Valley Project ("CVP") and the State Water Project ("SWP"), "operated respectively by [Reclamation] and the State of California, are perhaps the two largest and most important water projects in the United States." San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 592 (9th Cir. 2014) (" San Luis v. Jewell "). "These combined projects supply water originating in northern California to more than 20, 000, 000 agricultural and domestic consumers in central and southern California." Id. As part of CVP operations, Reclamation releases water stored in CVP reservoirs in northern California, which then flows down the Sacramento River to the Delta. Id. at 594. Pumping plants in the southern region of the Delta then divert water through the Delta-Mendota Canal and other facilities to various users, including members of SLDMWA.
As a condition of Reclamation's operation of CVP facilities in the Delta, Reclamation must comply with SWRCB Decision 1641 ("D-1641"). See Pac. Coast Fed'n of Fishermen's Assoc'ns v. Gutierrez, 606 F.Supp.2d 1122, 1133 (E.D. Cal. 2008). D-1641 implements the Bay Delta Water Quality Control Plan through modifications to the CVP, SWP, and other water rights permits. See generally Allen Decl., Ex. 12 (hereinafter cited only as "D-1641"). D-1641 affects operations of the CVP by regulating salinity levels in the Delta, setting minimum Delta outflow requirements, and regulating export rates of the federal and state water projects. Id.
Reclamation provides CVP water to users through different types of contracts provided for under Reclamation Law. See Tehama-Colusa Canal Auth. v. U.S. Dep't of the Interior, 721 F.3d 1086, 1091 (9th Cir. 2013) (summarizing the types and priorities of contracts within the CVP). Because of the extreme drought conditions in California, this water year Reclamation anticipates delivering to Sacramento River Settlement Contractors 75% of their contract supplies, and 0% of contract supplies to south-of-Delta water service contractors, including SLDMWA. Final EA 1-3; Decl. of Richard Woodley ("Woodley Decl."), Doc. 47, at ¶ 6.
A. Delta Smelt.
The Delta is "the lone habitat for the delta smelt, a threatened species under the Endangered Species Act." San Luis v. Jewell, 747 F.3d at 592. It is undisputed that the delta smelt is in "imminent danger of extinction." Id. at 595-96. "The 2008 delta smelt population was estimated at 1.5% of [its] 1980 level... and 2009 levels were estimated to be the lowest on record." Id. at 596 n. 4.
"In 2008, Reclamation requested a biological opinion [("2008 BiOp")] from the U.S. Fish and Wildlife Service [("FWS")], in accord with the [Endangered Species Act ("ESA")], on whether its continued operations would jeopardize the smelt." Id. at 592. In its 2008 BiOp, FWS informed Reclamation that continued, long-term CVP operations would jeopardize the continued existence of the delta smelt, but proposed a multi-component "reasonable and prudent alternative" ("RPA") that would avoid jeopardy, which Reclamation has adopted and is implementing. Id; Allen Decl., Ex. 4 (2008 BiOp) at 294-300.
The 2008 BiOp references as relevant to CVP impacts upon delta smelt two related measures of describing salinity in the Delta. San Luis v. Jewell, 747 F.3d at 595 (citing 2008 BiOp at 147). The first standard is the LSZ, which "is the transition point between the freshwater of the inland rivers and brackish water flowing eastward from San Francisco Bay and the Pacific Ocean, and includes water ranging in salinity from 0.5 parts per thousand to six parts per thousand." Id. (citing 2008 BiOp at 191). The second standard, "X2, " represents the point in the Delta where the average daily salinity at the bottom of the water column is two parts per thousand. Id. "The LSZ, which encompasses a larger region of the Delta, is generally centered around X2.... The agencies use X2 as a marker for the LSZ as well as a habitat indicator for fish and as a regulatory standard." Id.
The 2008 BiOp found that X2 generally tracks the "center point of the LSZ, which is considered suitable spawning habitat for the smelt." Id. at 616 (citing 2008 BiOp at 236). In 2010, FWS further explained:
From late spring through fall and early winter, delta smelt are located at the LSZ, which moves depending upon San Francisco Bay-Delta water outflow [citation]. Reduced Delta water outflow causes the LSZ to move upstream, which seems to concentrate delta smelt in a smaller area along with other competing planktivorous fishes [citation]. Causes of such reduced outflows include smaller upstream releases from dams, increased water exports from the State and Federal facilities, and upstream water diversions for flooding rice fields [citation]. Low freshwater outflows in the fall have been correlated with a reduced abundance index for young delta smelt the following summer [citation]. Delta smelt are also believed to require relatively turbid (not clear) waters to capture prey and avoid predators [citation]. Increased water clarity during the summer and fall has been shown to be negatively correlated with subsequent summer delta smelt abundance indices [citation]. Since 1978, delta smelt have become increasingly rare in summer and fall surveys of the San Joaquin region of the San Francisco Bay-Delta [citation]. The primary reason appears to be the comparatively high water clarity in the region, although high water temperatures are also likely a contributing factor [citation]. The increased water clarity in delta smelt rearing habitat is attributed to the interruption of sediment transport by upstream dams [citation] and the spread of the exotic invasive water plant [citation], which traps suspended sediments [citation].
75 Fed. Reg. 17, 667-01, 17, 669 (Apr. 7, 2010).
B. SWRCB Winter/Spring Temporary Urgency Change Orders.
This Court recently recognized the historic nature of drought conditions facing Californians in 2014:
There is no dispute that California is in the midst of an historic, extreme drought. In early May 2014, the California Department of Water Resources ("DWR") projected hydrologic conditions in both the Sacramento Valley and the San Joaquin Valley will be Critically Dry for Water Year 2014. On January 17, 2014, the Governor of California issued a drought emergency proclamation, followed by a second proclamation on April 25, 2014. In light of the current conditions, the [SWRCB] issued several Temporary Urgency Change Orders to the CVP and SWP ("the Projects"), temporarily modifying implementation of  D-1641, which regulates salinity levels in the Delta by requiring minimum outflow requirements and regulating exports by the Projects. Among other things, the State Water Board's Temporary Urgency Change Orders require the Projects to take measures to maintain upstream storage, including reducing Delta outflow requirements and reducing allowable exports. Id. Among other things, relevant federal and state agencies collaborated to develop the [CVP] and [SWP] Drought Operations Forecast ("Drought Operations Plan") in order to meet requirements placed on the Projects by the State Water Board and to meet requirements under the [ESA].
Friant Water Auth. v. Jewell, 2014 WL 2197993, ___ F.Supp.2d ____, at *7 (E.D. Cal. May 27, 2014) (internal citations omitted).
Relevant to this case, the SWRCB's first TUC Order of the year, issued on January 31, 2014, modified the minimum Delta outflow levels to allow for a Net Delta Outflow Index ("NDOI") of no less than 3, 000 cubic feet per second ("cfs") in February, and "restricted exports in the Delta at the SWP and CVP pumping facilities to health and safety needs of no more than 1, 500 cfs, with the exception of transfers." See Allen Decl., Ex. 20 at 2. Because compliance with the unmodified requirements of D-1641 is assumed in the 2008 BiOp, in conjunction with each TUC petition and in order to ensure compliance with the ESA, Reclamation sought concurrence from FWS that there would be no additional adverse effects on delta smelt or its critical habitat due to the requested changes to D-164 beyond the effects recognized in the 2008 BiOp. See Declaration of Ren Lohoefener ("Lohoefener Decl."), Doc. 47-2, at ¶¶ 6-7. The first of these concurrence requests occurred in conjunction with the January TUC petition. In a memorandum dated January 31, 2014, FWS concurred that the January 31 proposed modifications to D-1641, including the transfer exemption to outflow, would not cause any additional adverse effects on delta smelt or its critical habitat beyond those already analyzed in the 2008 BiOp. Id. at ¶ 6; Allen Decl., Ex. 25 at 2.
Although the proposed departure from D-1641 was not anticipated in the Project Description of the BiOp, or the modeling in the biological assessment, the proposed relaxation, based on the provisions provided in the TUC Petition and existing hydrologic and biological conditions for the month of February appear to be within the range of effects previously analyzed in the 2008 BiOp. Therefore, the Service concurs with Reclamation's determination that the proposed modifications will have no additional adverse effects on delta smelt or its critical habitat. As described on p 280 of the BiOp, we will continue to utilize the adaptive process on a weekly basis to proactively meet the biological needs of the delta smelt within the constraints of the critically dry water year conditions.
In the petition, Reclamation and DWR have proposed to convene a team of managers from Reclamation, DWR, SWRCB, California Department of Fish and Wildlife (DFW), National Marine Fisheries Service (NMFS), and the Service in order to coordinate management of water supplies and protection of natural resources during the course of the declared drought emergency.
During any period in which Reclamation and DWR are operating the Projects under a temporary change order, there will be close coordination on current and projected operations on a weekly basis through existing meetings (Smelt Working Group, Delta Conditions Team, Water Operations Management Team, etc.). The Service will continue to make weekly determinations under our RPA actions (to include consideration of operations pursuant to a temporary change order) regarding whether changes in operations arc necessary to protect listed fish species....
Allen Decl., Ex. 25 at 2 (emphasis added). FWS concurred with other TUC Orders and other drought-related operational changes for the first part of the year on February 28 and March 14. See Allen Decl., Exs. 10 & 21.
C. Reclamation's Long-Term Water Transfer Planning & NEPA Compliance.
In recent years Reclamation has reviewed and approved numerous short-term plans that facilitate the voluntary transfer of water from willing sellers north of the Delta to willing buyers south of the Delta who may be experiencing water shortages. See Allen Decl., Ex. 5 at 5, Ex. 2 at 23; Woodley Decl. at ¶ 3. "Such transfers are used more often in dry years when water supplies are limited and there is greater capacity at CVP facilities to convey water across the [Delta] through the export facilities because of the limited availability of CVP water supplies." Woodley Decl. at ¶ 2. On January 17, 2014, and April 25, 2014, the Governor of California issued Emergency Drought Proclamations emphasizing the importance of transfers as a tool to be used during drought conditions. See Allen Decl., Ex. 11. Reclamation is currently preparing an Environmental Impact Statement ("EIS") under NEPA that would cover potential future water transfers for a period of up to 10 years, and anticipates releasing a draft to the public in September 2014. Woodley Decl. at ¶ 12.
D. 2014 Water Transfer Project & Draft EA.
SLDMWA members are among the CVP contractors located south of the Delta who will experience severe shortages of water this year and have been seeking potential transfers of water. See Final EA at 1-2. Accordingly, the 2014 Transfer Project proposes "the transfer of water in contract year 2014 to Participating Members of the SLDMWA." Id. at 2-1. Reclamation's role in those transfers will be to approve and facilitate the transfer through use of federal facilities. See id. at 1-2.
In order to evaluate the potential environmental effects of Reclamation's "proposed action" approving and facilitating of the transfer of up to 175, 226 AF of water in 2014, and to determine whether the proposed action would result in significant environmental impacts, Reclamation prepared and released a Draft Environmental Assessment ("Draft EA") on March 13, 2014 for public comment. See Allen Decl., Ex. 1. The Draft EA states:
Water transfers would slightly increase river flows downstream of the point of diversion relative to the No Action Alternative during the transfer period. Reclamation is consulting frequently with USFWS and NMFS on CVP and SWP operations relative to the [BiOps] and special status fish species in the Delta. Special status fish species would not be affected by the Proposed Action beyond those impacts considered by the BOs and current consultations with NMFS and USFWS.
Id. at 15. The Draft EA also mentions the fact that on January 31, 2004 the SWRCB approved a Temporary Urgency Change ("TUC") Order that relaxed certain Delta regulatory requirements governed by D-1641 and states that Reclamation will operate to the TUC Order as it may be amended and as necessary to address critically dry conditions. Id.
E. Plaintiffs' Comments on the Draft EA.
On April 2, 2014, AquAlliance, through counsel Thomas Lippe and member Barbara Vlamis, submitted comments on the EA. Mr. Lippe's comments related to air quality impacts. Allen Decl., Ex. 2 at 115-21. Ms. Vlamis's comments referenced an analysis by Thomas Cannon entitled "Summer 2013: The demise of Delta smelt under D-1641 Delta Water Quality Standards, " and stated:
On page 3-13, the EA/IS continues its discussion to support the finding of Less Than Significant Impact for, "[a]ny species identified as a candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by the California Department of Fish and wildlife or U.S. Fish and Wildlife Service, " with NMFS excluded as noted above (p.3-11). The EA/IS concludes that, "The incremental effects of transfers on special status fish species in the Delta from water transfers would be less than significant." What data and analysis support this conclusion and where is the material found? Analysis conducted by Thomas Cannon contradicts the Less Than Significant Impact finding with disturbing results from the summer of 2013. His research reveals that summer water transfers are devastating, especially in dry years when the low salinity zone is in the western Delta and smelt are stuck within the Delta and threatened by warm water, which has been made available for transfer by either fallowing or groundwater substitution, and predators[.]
Id. at 134 (emphasis added) (footnote omitted).
Reclamation responded to both of those submissions in its Final EA. See id. at 165-67, 175. Specifically, in response to Ms. Vlamis's comment, the EA cited to FWS's 2008 BiOp for the proposition that delta smelt are not near the pumps in the summer months and would not be affected by transfers, stating:
Water transfers are a small portion of total Project deliveries during the summer months. Resource agencies, including USFWS and NMFS, evaluated the effects of water transfers in the Biological Opinions and placed limitations on transfers during the July - September period to reduce potential effects. The agencies found that transfers would not affect special status fish species given these constraints. The cited paper by Thomas Cannon does not specifically mention water transfers at all throughout the document. USFWS evaluated impacts to Delta smelt ...