Aqualliance v. U.S. Bureau of Reclamation

287 F.Supp.3d 969

AQUALLIANCE, et al., Plaintiffs,

v.U.S. BUREAU OF RECLAMATION, et al., Defendants.

1:15–CV–754–LJO–BAM

United States District Court, E.D. California.

Signed February 15, 2018

Jason Flanders, Anthony M. Barnes, Aqua Terra Aeris Law Group, Oakland, CA, Michael Bruce Jackson, Michael B. Jackson, Attorney at Law, Quincy, CA, Patrick M. Soluri, Soluri Meserve, A Law Corporation, Sacramento, CA, for Plaintiffs.

Anna K. Stimmel, GOVT, U.S. Department of Justice, Washington, DC, Bradley H. Oliphant, US Department of Justice, Env. & Natural Resources Division, Denver, CO, Daniel Joseph O'Hanlon, Elizabeth Louise Leeper, Hanspeter Walter, Rebecca Rose Akroyd, Kronick, Moskovitz, Tiedemann & Girard, Jeffrey K. Dorso, Andrea A. Matarazzo, Pioneer Law Group, LLP, Jon David Rubin, San Luis & Delta–Mendota Water Authority, Sacramento, CA, for Defendants.

MEMORANDUM DECISION AND ORDER RE CROSS–MOTIONS FOR SUMMARY JUDGMENT (ECF Nos. 45, 48, 49, 50)

Lawrence J. O'Neill, UNITED STATES CHIEF DISTRICT JUDGE

I. INTRODUCTION

Plaintiffs,¹ various water resource management and conservation organizations, challenge Defendants'² "10–year water transfer program to move water from sellers located upstream of the Sacramento/San Joaquin Delta ('Delta') to willing buyers south of the Delta" (the "Project"). ECF No. 16, First Amended Complaint ("FAC") at ¶ 2. Specifically, Plaintiffs assert Reclamation's and the Authority's creation and approval of the Project's Final Long–Term Water Transfers Environmental Impact Statement/Environmental Impact Report³ ("FEIS/R") violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq. , the Central Valley Project Improvement Act ("CVPIA"), Public Law 102–575⁴ , and the California Environmental Quality Act ("CEQA"), Cal. Pub. Res. Code §§ 21000 et seq. Plaintiffs also assert FWS's approval of the Project's Final Biological Opinion ("BiOp") and Incidental Take Statement ("ITS") violated the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq. FAC at ¶ 1.

Before the Court are the parties' cross-motions for summary judgment. ECF Nos. 45, 48, 49, 50. The parties did not request a hearing on the motions and the Court did not set one. For the following reasons, the Court GRANTS IN PART AND DENIES IN PART each of the pending motions.

II. FACTUAL AND PROCEDURAL BACKGROUND

Reclamation manages the Central Valley Project ("CVP") (Administrative Record ("AR")⁵ 25427), one of "the largest and most important water projects in the United States." San Luis & Delta–Mendota Water Auth. v. Jewell , 747 F.3d 581, 591 (9th Cir. 2014) (" San Luis v. Jewell "). "The CVP consists of a series of dams[;] ... 21 reservoirs; 11 hydropower plants; and 500 miles of canals and aqueducts," id. at 594 (citation omitted), that deliver irrigation water to the Sacramento and San Joaquin Valleys, and water to cities and industries in Sacramento, the San Joaquin Valley, and the east and south San Francisco Bay Areas. AR 25427. The key purpose of the CVP is "to transfer water from the Sacramento River [in Northern California] to water-deficient areas in the San Joaquin Valley and from the San Joaquin River to the southern regions of the Central Valley." San Luis v. Jewell , 747 F.3d at 591 (citation omitted).

The Project "extends from Shasta County in the northern portion of the Sacramento Valley to Kings County in the southern portion of the San Joaquin Valley and extends as far west as Santa Clara County." AR 16700. The Project's stated purpose "is to facilitate and approve voluntary water transfers from willing sellers upstream of the Delta to water users south of the Delta and in the San Francisco Bay Area" when those sales use CVP and/or State Water Project ("SWP") infrastructure. AR 25368, 14786.

These transfers, which have occurred for decades (AR 25367), are proposed as a means to address the "severe reduction in CVP water supplies" that occur "during dry hydrological years" in the San Francisco Bay Area and the San Joaquin Valley. AR 25365, 25367. The transferred water would be made available through groundwater substitution, cropland idling, crop shifting, reservoir release, and conservation. AR 14786, 25375–25377. The Project would make up to 511,094 acre-feet⁶ ("AF") of water available for transfer each year through these measures, depending on hydrological conditions. AR 25461. Buyers and sellers are required to submit CVP transfer proposals to Reclamation, who must approve them. AR 25436; CVPIA § 3405(a)(1). Similarly, transfer proposals with State Water Contractors ("SWC") and transfers that use SWP facilities require approval by the California Department of Water Resources ("DWR"). AR 25444.

This case concerns the FEIS/R issued by Reclamation and the Authority, and the BiOp issued by FWS, which evaluate the Project's potential environmental and species-related impacts through 2024. AR 25365 (FEIS/R); AR 047711 (BiOp). The FEIS/R's stated purpose is to "provide a streamlining tool by providing a comprehensive, long-range, project-level view of the potential environment impacts associated with a range of potential transfer activities over a ten-year period, to both expedite approval of water transfers and to reduce participant uncertainty." AR 27451.

Plaintiffs contend, and Defendants dispute, that: "(1) the FEIS/R violates NEPA, (2) the FEIS/R violates CEQA, (3) the FWS's BiOp and [ITS] are arbitrary and capricious, and (4) Reclamation arbitrarily and capriciously failed to re-initiate ESA consultation for impacts to special-status aquatic species" in violation of Section 7 of the ESA. ECF No. 45 at 12.

III. STANDARDS OF DECISION

A. NEPA

NEPA requires that federal agencies prepare "a detailed statement by the responsible official on ... the environmental impact" of any federal actions "significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C) ; Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin. , 538 F.3d 1172, 1185 (9th Cir. 2008). NEPA's purpose is twofold: (1) to ensure that agencies carefully consider information about significant environmental impacts and (2) to guarantee relevant information is available to the public. Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) ; Ctr. for Biological Diversity , 538 F.3d at 1185. "NEPA is a procedural statute," designed to ensure "that federal agencies take a 'hard look' at the environmental consequences of their proposed actions before deciding to proceed." Native Ecosystems Council v. Weldon , 697 F.3d 1043, 1051 (9th Cir. 2012) (quoting Methow Valley , 490 U.S. at 350–51, 109 S.Ct. 1835 ). "Although NEPA establishes procedures by which agencies must consider the environmental impacts of their actions, it does not dictate the substantive results of agency decision making." Id. (citing Methow Valley , 490 U.S. at 350, 109 S.Ct. 1835 ). "A court generally must be at its most deferential when reviewing scientific judgments and technical analyses within the agency's expertise under NEPA." Id. (internal citations omitted). The Council of Environmental Quality ("CEQ") has promulgated regulations governing how NEPA is implemented along with specific instructions regarding the preparation of EISs. 40 C.F.R. §§ 1505.1 – 1508.28.

B. APA

The Administrative Procedure Act's ("APA"), 5 U.S.C. §§ 701 – 06, standard of review applies to Plaintiffs' NEPA and ESA claims. San Luis v. Jewell , 747 F.3d at 601. The APA provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. Under the APA, the Court shall "hold unlawful and set aside agency action, findings, and conclusions found to be":

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

* * *(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; [and/or]

(D) without observance of procedure required by law[.]

* * *

Id. § 706(A). When assessing claims pursuant to the APA, a court, reviewing only the AR, must determine "whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Sierra Club v. Mainella , 459 F.Supp.2d 76, 90 (D.D.C. 2006) (quoting Occidental Eng'g Co. v. INS , 753 F.2d 766, 769 (9th Cir. 1985) ). In other words, a court's "review is guided by whether the agency's analysis is reasonable and offers sufficient detail to ensure that environmental consequences have been fairly evaluated." Protect Our Communities Found. v. Jewell , 825 F.3d 571, 582 (9th Cir. 2016) (citations and quotation marks omitted).

A reviewing court "must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated in part on other grounds as recognized in Califano v. Sanders , 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Although a court's inquiry must be thorough, the standard of review is highly deferential; the agency's decision is "entitled to a presumption of regularity," and a court may not substitute its judgment for that of the agency. Id. at 415–16, 91 S.Ct. 814.

Courts should defer to the agency on matters within the agency's expertise unless the agency completely failed to address a factor that was essential to making an informed decision. Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv. , 422 F.3d 782, 798 (9th Cir. 2005). A court "may not substitute its judgment for that of the agency concerning the wisdom or prudence of [the agency's] action." River Runners for Wilderness v. Martin , 593 F.3d 1064, 1070 (9th Cir. 2010). As the Ninth Circuit explained in River Runners :

In conducting an APA review, the court

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