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Judge Wanger Rules That the Bureau of Reclamation Violated NEPA in Accepting and Implementing the National Marine Fisheries Service’s Biological Opinion on Salmon March 16, 2010 by Brian D. Poulsen bpoulsen@somachlaw.com |
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On March 5, 2010, Judge Oliver Wanger of the United States District Court, Eastern District of California, invalidated the Bureau of Reclamation’s (Reclamation) decision to accept and implement the National Marine Fisheries Service’s (NMFS) June 4, 2009 biological opinion (BiOp) addressing the impact of coordinated operations of the Central Valley Project (CVP) and State Water Project (SWP) (collectively, Projects) on certain salmonid and other species, and its corresponding Reasonable and Prudent Alternative (RPA). The Court’s ruling follows a previous, and nearly identical ruling invalidating the Bureau’s implementation of the U.S. Fish & Wildlife Service’s (FWS) December 15, 2008 BiOp and RPA for Delta smelt. See Judge Wanger Rules That Bureau of Reclamation Violated NEPA In Accepting and Implementing U.S. Fish & Wildlife Service’s Biological Opinion On Delta Smelt, December 8, 2009. In both cases, the Court ruled that Reclamation failed to comply with the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., by provisionally accepting and implementing the BiOps and RPAs without first completing an environmental impact statement (EIS) to consider their significant effects on the human environment. Background On October 22, 2004, NMFS issued a BiOp on the effects of the coordinated operations of the Projects on winter-run Chinook, spring-run Chinook, and steelhead salmon. The BiOp found that Project operations would not cause jeopardy or adversely modify critical habitat for the species at issue. Thereafter, a coalition of environmental and fishing organizations challenged the BiOp’s conclusions in Pac. Coast Fed’n of Fishermen’s Ass’ns v. Gutierrez, No. 1:06-cv-00245-OWW-GSA, 2008 U.S. Dist. LEXIS 31462. On April 16, 2008, the Federal District Court for the Eastern District of California held the 2004 BiOp unlawful and inadequate for failure to consider all the relevant factors pertaining to recovery of certain species and associated critical habitat impacts. The Court subsequently ordered NMFS to issue a new salmon BiOp. Pursuant to that mandate, NMFS issued a new BiOp on June 4, 2009. That BiOp found that the coordinated Project operations would likely jeopardize the continued existence and adversely affect the critical habitat of certain salmonid and other species. Accordingly, the BiOp included an RPA that imposes certain restrictions on the coordinated operation of the Projects. On the same day, Reclamation provisionally accepted the RPA and informed NMFS that it would immediately begin to implement the near-term actions of the RPA. Thereafter, several urban and agricultural water suppliers, including San Luis & Delta Mendota Water Authority, Westlands Water District, Stockton East Water District, State Water Contractors, Kern County Water Agency, Coalition for a Sustainable Delta, Oakdale Irrigation District, and Metropolitan Water District of Southern California (collectively, Plaintiffs) filed suit in Consolidated Salmonid Cases, No. 1:09-cv-1053 OWW DLB (E. D. Cal. filed June 15, 2009). In challenging the BiOp, Plaintiffs alleged that the issuance and implementation of the BiOp/RPA are “major federal actions” that will inflict harm on the human environment, and that NMFS and Reclamation should have, but did not conduct an environmental assessment or prepare an EIS under NEPA. The Court Decision As in its challenge to the Delta smelt BiOp, the essence of Plaintiff’s contention is that NMFS and Reclamation failed to comply with NEPA in the issuance, implementation, and acceptance of the BiOp. NEPA requires all federal agencies to prepare an EIS to evaluate the potential environmental consequences of any proposed “major federal action significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(c). Accordingly, the Court’s analysis of the salmon BiOp proceeds in two steps by analyzing (1) whether there is a “major federal action,” and (2) if so, whether such major federal action will “significantly affect the quality of the human environment.” Once again, the Court declined to decide whether the issuance of the BiOp constituted a “major federal action,” subject to compliance with NEPA. The Court held that implementation, rather than issuance, of the BiOp and RPA is the potential “major federal action.” The Court, quoting from its decision on the Delta smelt BiOp, stated, “Reclamation was not ‘bound’ by the BiOp until it chose to proceed with the [Operations Criteria and Plan] and implement the RPA. Once Reclamation did so, operation of the Projects [i.e., implementation of the RPA] became the relevant agency ‘action’ ....” The Court held that Reclamation’s provisional acceptance and implementation of the BiOp and its RPA constitute “major federal action” because they represent a significant change to the operational status quo. In distinguishing routine changes, which would not constitute “major federal action,” the Court held that Reclamation’s implementation of the BiOp is a major federal action because it substantially alters the status quo in the Projects’ operations. The BiOp and its RPA require significant alterations to the procedure or standards for Project operations, including new boundaries for Old and Middle River flows between January through June. Thus, implementing the BiOp and its RPA constitutes major federal action under NEPA. Having determined that Reclamation’s provisional acceptance and implementation of the BiOp and its RPA constitute major federal action, the Court next analyzed whether such action would “significantly affect the human environment.” The Court noted that the undisputed facts indicate that implementation of the RPA will materially reduce water exports by 5 – 7 percent, or approximately 330,000 acre-feet. That such reductions have the potential to significantly impact the environment, the Court said, “is beyond reasonable dispute.” Thus, the Court held that Reclamation unlawfully failed to comply with NEPA by not preparing an EIS for the acceptance and implementation of the BiOp. Such implementation causes a change to the operational status quo of the existing Projects, rendering the decision a major federal action, and will significantly affect the human environment. Conclusions and Implications What remedies the Court will impose remains undecided. Once again, the Court left unanswered the question of whether issuance of the BiOp required NEPA compliance. This is important because requiring NMFS to conduct an EIS before issuing the BiOp and its corresponding RPA would almost certainly alter the export restrictions currently required by the BiOp. Rather than merely requiring Reclamation to conduct an EIS prior to implementing the RPA, a pre-RPA EIS would require NMFS to consider a host of factors not previously considered in drafting the BiOp/RPA, such as resulting job loss, agricultural losses, and increase in groundwater pumping, resulting from such export restrictions. Nevertheless, this issue may be of little consequence because the Court noted, “Both Reclamation and NMFS participate in implementing the RPAs. Under NEPA, it is up to both agencies to allocate their NEPA compliance responsibilities on remand.” The Court has scheduled a preliminary injunction hearing for late March and early April 2010, to decide the remedies issue. It is noteworthy that in concluding its decision, the Court noted “an injunction should not issue where ‘enjoining government action allegedly in violation of NEPA might actually jeopardize natural resources.’” [Internal citation omitted]. The Court’s decision in Consolidated Salmonid Cases is available here. For more information, please contact Brian Poulsen at bpoulsen@somachlaw.com. Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice. In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn. |
