Grand Canyon Trust v. U.S. Bureau of Reclamation, et al

Filing 172

ORDER granting in part and denying in part 131 Motion for Summary Judgment; granting in part and denying in part 135 Motion for Summary Judgment; granting 165 Motion for Leave to File. Signed by Judge David G Campbell on 5/26/2009.(NVO)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Grand Canyon Trust, Plaintiff, vs. U.S. Bureau of Reclamation, et al., Defendants. ) ) ) ) ) ) ) ) ) ) No. CV-07-8164-PHX-DGC ORDER Plaintiff Grand Canyon Trust (the "Trust") claims that the current operation of Glen Canyon Dam on the Colorado River violates the Endangered Species Act by jeopardizing and taking the endangered humpback chub and by destroying or adversely modifying its critical habitat. The Trust further claims that the Bureau of Reclamation ("Reclamation") and the Fish and Wildlife Service ("FWS") two federal agencies with environmental responsibilities for the Dam have failed to comply with relevant statutes. For the reasons that follow, the Court will grant summary judgment in favor of the Trust on Claim 7, grant summary judgment in favor of Reclamation on Claims 6 and 8, and take Claims 1, 2, and 3 under advisement. The Court will remand a portion of FWS's 2008 biological opinion for further consideration by October 30, 2009, and will establish a schedule for additional activities in this lawsuit once FWS has reconsidered its opinion. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. Background. A. The Parties. The Trust is an organization created to "protect and restore the canyon country of the Colorado Plateau," including its "diversity of plants and animals." Dkt. #59 8. The Trust has filed suit against Reclamation and its Commissioner (collectively, "Reclamation") and against FWS.1 The Trust claims that Reclamation's current operation of Glen Canyon Dam, particularly the Dam's fluctuating releases of water into the Colorado River, jeopardizes and takes the humpback chub and destroys its critical habitat. The Trust also claims that Reclamation and FWS have failed to comply with procedural requirements of the Endangered Species Act, the National Environmental Protection Act, and the Grand Canyon Protection Act. The Court allowed several parties to intervene as defendants, including Arizona, California, Colorado, Nevada, New Mexico, Utah, Wyoming, the Colorado River Commission of Nevada, the Southern Nevada Water Authority, the Colorado River Energy Distributors Association, the Central Arizona Water Conservation District, the Imperial Irrigation District, and the Metropolitan Water District of Southern California. Dkt. #98. B. The Colorado River and Glen Canyon Dam. The Colorado River is the most important water resource in the American West, providing drinking water for more than 25 million people. USGS Circular 1282, State of the Colorado River Ecosystem in Grand Canyon ("2005 SCORE Report"), Dkt. #136, Ex. 18 at 2. The river has formed the Grand Canyon one of the natural wonders of the world and serves as an important point of access to the Canyon and as host for a wide variety of unique resources and species. The river also produces electrical power, with Glen Canyon Dam generating more than 3 million megawatt hours of electricity annually. Id. Given these and other demands, the river is one of the most heavily regulated in the world. Statutes, regulations, compacts, court decisions, treaties, and agreements all combine to form a "Law of the River" that extends back more than 100 years. 1 Reclamation and FWS will be referred to collectively as the "Federal Defendants." -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Glen Canyon Dam is located on the Colorado River just south of the Utah-Arizona border. The Dam forms Lake Powell, a body water that is 186 miles long and the second largest reservoir in the United States. Congress authorized construction of the Dam in 1956 for the purposes of "regulating the flow of the Colorado River, storing water for beneficial consumptive use, [and] making it possible for the States of the Upper Basin to utilize . . . the apportionments made to and among them." 43 U.S.C. 620. The Colorado River Basin Project Act of 1968 required the Secretary of the Interior to adopt criteria for the long-range operation of Glen Canyon Dam. 43 U.S.C. 1552(b). Long Range Operating Criteria for the Dam were adopted by the Secretary on June 4, 1970, and remain largely unchanged today. See 35 Fed. Reg. 8951-02 (June 10, 1970); 70 Fed. Reg. 15873, 15874 (Mar. 29, 2005). They establish a minimum annual water release from Lake Powell of 8.23 million acre feet. Id. at 15875.2 The humpback chub is a "big-river fish" that developed three to five million years ago. The species lives in the relatively inaccessible canyons of the Colorado River. Six humpback chub populations have been identified, five upstream of the Dam and one downstream. Only the downstream population is at issue in this case. The humpback chub was listed as endangered under the statutory predecessor to the Endangered Species Act. 32 Fed. Reg. 4001 (Mar. 11, 1967). In 1973, the chub was formally listed as endangered under the Act. 38 Fed. Reg. 106 (June 4, 1973). In 1994, some 379 miles of the Colorado River were designated by FWS as "critical habitat" for the chub. Dkt. #136, Ex. 11 at 12. "Critical habitat" is habitat essential for the endangered species' survival and therefore in need of special management. 59 Fed. Reg. 13374 (Mar. 21, 1994). The adult population of humpback chub in the Grand Canyon is estimated to have been 10,000 to 11,000 in 1989, dropping to 4,500 or fewer in 2001. Dkt. #136, Ex. 11 at 13, 20. Of some significance for this case are recent studies showing that the chub population An "acre foot" of water is the amount of water needed to cover one acre of land to a depth of one foot. It amounts to 43,560 cubic feet of water, or about 325,851 gallons. A million acre feet is, of course, one million times this amount. -32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 has increased in recent years to a total of between 5,300 and 6,700 in 2006. Id. Recent data also show a greater number of young chub in the mainstem of the Colorado River. Id. at 20. The reasons for these increases are not presently known, but, as will be seen below, they have influenced agency decisions in this case. C. Historical River Conditions and Dam Operations. The Colorado River historically was sediment-rich, with high flows in the spring and lower, steadier, warmer flows in the summer and fall. Glen Canyon Dam changed these characteristics in several important respects. The Dam now captures approximately 84% of the sediment that formerly flowed down the river. The river below the Dam no longer varies on the basis of seasonal run-off. The average water temperature in the river has dropped significantly because the Dam releases water from the deeper reaches of Lake Powell. Dkt. #136, Ex. 11 at 21; 2005 SCORE Report at 4. From 1963 to 1991, the Dam was managed primarily to maximize power generation, an approach that resulted in significant fluctuations of the river level. As power demand increased during the daytime, more water would be released from the Dam to generate more electricity, producing higher river levels. As power demand dropped at night, less water would be released and the river level would also drop. Daily flows from the Dam could fluctuate between 5,000 cubic feet per second ("cfs") and 30,000 cfs under this approach, resulting in single-day changes of up to 13 feet in the river's water level. 2005 SCORE Report at 4. Fluctuations were also seasonal, with more water being released during the high power demand months of the summer and winter, and less during the spring and fall. Environmental concerns about these Dam operations and a mandate from Congress in the Grand Canyon Protection Act led Reclamation to issue a final environmental impact statement for Glen Canyon Dam in 1995 (the "1995 FEIS"). Dkt. #122-2 at 3. The 1995 FEIS evaluated several alternative approaches to operating the Dam and ultimately recommended a system described as "modified low fluctuating flow" or "MLFF." As explained in the FEIS, "this alternative would have the same annual and essentially the same monthly operating plan" as the approach used from 1963 to 1991, but would limit the -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 magnitude of daily and hourly fluctuations in water releases from the Dam. MLFF also included habitat maintenance flows intended "to re-form backwaters and maintain sandbars, which are important for camping beaches and wildlife habitat." Id. at 16. The 1995 FEIS rejected an alternative known as "seasonally adjusted steady flow" or "SASF." SASF did not vary water releases on the basis of electrical power demands, but instead "was developed to enhance the aquatic ecosystem by releasing water at a constant rate within defined seasons and by using habitat maintenance flows. Seasonal variations in minimum flows and habitat maintenance flows were designed with the goal of protecting and enhancing native fish." Id. at 20. Water releases under the SASF alternative would be steady throughout any given month, but total monthly releases would be higher in the spring and lower in the summer and fall, more closely tracking the pre-Dam fluctuations of the river. Id. at 21. Secretary of the Interior Bruce Babbitt accepted the recommendation of the 1995 FEIS and, on October 8, 1996, signed a Record of Decision that selected MLFF as the operating system for the Dam (the "1996 ROD"). Dkt. #27, Ex. 3. With the exception of some brief experimental variations that will be mentioned below, MLFF has remained the Dam's method of operation to the present day. D. The Law ESA Consultation and the Effect of a Biological Opinion. The Endangered Species Act ("ESA") was enacted some 10 years after Glen Canyon Dam was completed. To help ensure that endangered species are not jeopardized, the ESA establishes a three-step procedure. First, an agency proposing to take an "agency action" in this case, Reclamation's operation of the Dam must inquire of the Secretary of the Interior whether any threatened or endangered species may be present in the area of the proposed action. 16 U.S.C. 1536(c)(1). Second, if the answer is yes, the action agency must prepare a "biological assessment" to determine whether such species "is likely to be affected" by the proposed agency action. Id. Third, if the action agency determines in the biological assessment that its proposed action may affect a threatened or endangered species, the agency must engage in formal consultations with another federal agency designated to -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 protect the species, in this case FWS. 50 C.F.R. 402.14(a). FWS must then issue a "biological opinion" stating its view on whether the proposed agency action will affect the endangered species or its habitat. 16 U.S.C. 1536(b)(3)(A). If the opinion concludes that the agency action is likely to jeopardize the protected species, FWS must outline "reasonable and prudent alternatives" or "RPA" that will avoid the jeopardy. Id. If the biological opinion concludes that the agency action will not result in jeopardy, or if it offers an RPA to avoid jeopardy, FWS provides the action agency with an "Incidental Take Statement" specifying the "impact of such incidental taking on the species," any RPA that FWS "considers necessary or appropriate to minimize such impact," and setting forth "the terms and conditions . . . that must be complied with by the Federal agency . . . to implement [those measures]." 16 U.S.C. 1536(b)(4).3 A biological opinion's "Incidental Take Statement constitutes a permit authorizing the action agency to `take' the endangered or threatened species so long as it respects the [FWS] `terms and conditions.'" Bennett v. Spear, 520 U.S. 154, 170 (1997). Thus, if the action agency reasonably abides by the biological opinion and its RPA, the agency will not be found in violation of the ESA. An action agency may elect not to comply with FWS's biological opinion, but it must state "in its administrative record its reasons for disagreeing with the conclusions" of the opinion. Id. at 169 (citations omitted). As the Supreme Court has explained, "[t]he action agency is technically free to disregard the Biological Opinion and proceed with its proposed action, but it does so at its own peril[.]" Id. at 170. That "peril" is possible violation of the ESA and accompanying judicial remedies. Going back to step three, if the biological assessment of the action agency concludes that the action is "not likely to adversely affect" an endangered or threatened species, the action agency may seek informal consultation with FWS. 50 C.F.R. 402.13(a). FWS may issue a written concurrence in the determination or may suggest modifications to avoid the likelihood of harm to the endangered species. 50 C.F.R. 402.13(b). If FWS does not agree that the agency action is not likely to adversely affect the protected species, formal consultation must occur. 50 C.F.R. 402.14. -6- 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 E. The 1994 FWS Opinion, the RPA, and Reclamation's Compliance. At the heart of this case is a biological opinion issued by FWS in 1994 (the "1994 Opinion").4 The opinion concerned Reclamation's selection of MLFF as the operating system for the Dam. FWS concluded that MLFF would jeopardize the humpback chub and adversely modify its habitat. Dkt. #136, Ex. 17 at 3. This conclusion was based on the declining chub population and the effect of MLFF on critical chub habitat, particularly the nearshore sandbars and sun-warmed backwaters that were essential for the growth, feeding, and protection of young chub. Id. at 20, 23-28. The 1994 Opinion noted that the fluctuating flows of MLFF reduce the temperatures of backwaters by inundating them with colder water as river levels rise, and reduce food sources in the backwaters. Id. at 23-24. The opinion also noted that fluctuating water levels could force young chub into the more hazardous mainstream of the river. Id. at 24. As required by the ESA, FWS set forth an RPA that would minimize or avoid the adverse effects of MLFF identified in the 1994 Opinion. Id. at 35. The RPA included several elements. Although the parties have focused primarily on the steady-flow element, all of the RPA elements are relevant to understanding the actions of the parties in this case. 1. RPA Element 1. RPA element 1 called for Reclamation to develop an "adaptive management program" for the operation of Glen Canyon Dam. The program, referred to as "AMP," was intended to create a forum for all agencies, states, tribes, organizations, and persons with interests in the Dam, the Colorado River, and the Grand Canyon to have a voice in Dam operations. As envisioned by the RPA, the AMP would be used to design studies to determine the effect of river flows on endangered species and to implement actions to increase the likelihood of their survival and recovery. Id. at 35. To institute AMP, Reclamation formed the Adaptive The 1994 Opinion was signed on December 21, 1994, but was not transmitted to Reclamation until January 7, 1995. The Trust refers to the opinion as the 1994 Opinion, while Reclamation refers to it as the 1995 Opinion. The Court will refer to it as the 1994 Opinion. -7- 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Management Working Group ("AMWG"), a 25-member body with representatives from Reclamation, FWS, the National Park Service, other federal and state agencies, the seven Colorado River basin states, environmental groups (including the Trust), electrical power groups, Indian Tribes, and recreation groups. 2005 SCORE Report at 10. The AMWG makes recommendations to the Secretary of the Interior concerning Dam operations, and has been responsible for many of the studies addressed in this order and actions designed to benefit the chub that will be discussed below. FWS concluded in 1999 that Reclamation had successfully completed this element of the RPA. Dkt. #22, Ex. 7 at 2. 2. RPA Element 1A. Element 1A required Reclamation to institute a program of experimental releases from the Dam that included high steady flows in the spring and low steady flows in the summer and fall, and to quantify the effects of such flows on endangered and native fish. The RPA required that the design of such flows be completed by October 1996, with the flows to start in April of 1997. "If sufficient progress and good faith effort is occurring toward initiating experimental flows," the RPA stated, then implementation of the steady flows could occur later in 1997. Dkt. #136, Ex. 17 at 35. FWS warned, however, that if "there is not sufficient progress, Glen Canyon Dam would be operated as SASF flows during spring through fall (April to October) beginning in 1998." Id. Reclamation used the AMP process to institute high flow tests in 1996 and 2004 and a steady flow test from March to September of 2000 (Dkt. #27-3, Ex. 5 at 14-15), but has not implemented the specific steady flows required by RPA element 1A high steady flows in the spring and low steady flows in the summer and fall. Nor has Reclamation implemented SASF, the alternative steady-flow regime required by the RPA. As a result, FWS has on several occasions notified Reclamation that element 1A of the RPA "has not seen sufficient progress." Dkt. #22, Ex. 7 at 3 & Ex. 8 at 3. -8- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 3. RPA Elements 1B, 1C, 2, and 4.5 Element 1B called for Reclamation to investigate a system for the "selective withdrawal" of water from Lake Powell. The purpose would be to withdraw warmer water from the lake and thereby increase river temperatures. Dkt. #136, Ex. 17 at 36. FWS stated in 2002 that Reclamation had made progress on this element. Dkt. #22, Ex. 8 at 4. Reclamation has created preliminary plans for a multi-level water intake structure that could be used to draw warmer water from the lake. 2005 SCORE Report at 47. RPA element 1C called for Reclamation to determine the effects of water temperatures on various native fishes, including the humpback chub. Dkt. #136, Ex. 17 at 37. Reclamation has commissioned a number of studies on this issue, and in 2002 FWS advised Reclamation that work on this element was "progressing well." Dkt. #22, Ex. 8 at 6. Several studies included in the administrative record concern the effects of temperature on the chub. RPA element 2 called for Reclamation to protect humpback chub in the Little Colorado River by developing a management plan for the Little Colorado River. Dkt. #136, Ex. 17 at 38. FWS reported in 2002 that Reclamation had made little progress on this element, but was working with a watershed group for the Little Colorado River and would produce a report in June of 2003. Dkt. #22, Ex. 8 at 6. The parties have not otherwise apprised the Court of progress on this element. RPA element 4 called for Reclamation to establish a second spawning population of humpback chub downstream of the Dam. Dkt. #136, Ex. 17 at 39. The primary spawning colony is located in the lower reaches of the Little Colorado River, near its confluence with the Colorado River. To establish a second spawning population, Reclamation and other agencies, in 2003, relocated 300 young humpback chub to a spot above Chute Falls, a natural barrier on the Little Colorado River. Another 300 chub were moved there in July 2004, followed by another 565 in July 2005. Chub survival and growth rates at this new location have been high. The population above Chute Falls is now reproducing and moving RPA element 3 concerned the razorback sucker, a native fish not at issue in this case. -9- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 downstream in the Little Colorado, and appears to be a new source for humpback chub in the lower portions of the Little Colorado River and in the mainstem of the Colorado River. Dkt. #27, Ex. 5 at 68-69. 4. RPA Summary. Reclamation has completed elements 1 and 4 of the RPA and appears to have made meaningful progress on elements 1B and 1C. The Trust's primary focus in this case is on element 1A and Reclamation's failure to implement experimental high steady flows in the spring and low steady flows in the summer and fall, or alternatively to implement SASF. 5. Other Conservation Measures. In addition to the steps discussed above, the AMP process has produced other conservation measures for the chub. Rainbow trout, a species of fish not native to the Colorado River below the Dam, has thrived in the cold waters created by the Dam. The trout prey on young humpback chub. To address this obstacle to chub survival, the AMP process designed and implemented a program to remove rainbow trout from the key stretch of the Colorado River near the confluence with the Little Colorado. In 2003 and 2004, 16,045 rainbow trout and many other non-native fish were mechanically removed from the river, reducing the population of trout in this stretch by more than 60%. 2005 SCORE Report at 46-47. Rainbow and brown trout were also removed from other tributaries such as Bright Angel Creek in anticipation of establishing chub populations in these locations. Additional conservation measures will be discussed below. F. The 2008 FWS Opinion. As part of the AMP process, Reclamation created a 2008 Experimental Plan that called for two modifications to MLFF that were designed to benefit the chub a high water release in March of 2008 to build beach and backwater habitat, and steady flows in September and October of each year from 2008 to 2012 (the "2008 Experimental Plan"). As required by the ESA, Reclamation performed an Environmental Assessment for this plan and concluded that the environmental impact would not be significant. - 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Reclamation consulted with FWS concerning the 2008 Experimental Plan and, on February 27, 2008, FWS issued a biological opinion (the "2008 Opinion"). The 2008 Opinion noted recent studies that have shown increases in the humpback chub population, with at least one study concluding that the increases must have started between 1996 and 1999, before Reclamation began conducting experimental flows and removing non-native fish from the river. The 2008 Opinion concluded that "some combination of conditions under MLFF has benefitted the humpback chub, and that more recent conservation actions [such as the removal of rainbow trout] likely have as well[.]" Dkt. #136, Ex. 11 at 52. With respect to the two elements of the 2008 Experimental Plan, FWS opined that "implementation of the March 2008 high flow test and the five-year implementation of MLFF with steady releases in September and October, as proposed, is not likely to jeopardize the continued existence of the humpback chub . . . and is not likely to destroy or adversely modify designated critical habitat for the humpback chub." Id. at 51. The 2008 Opinion also noted that Reclamation intended to undertake eight conservation measures to benefit the chub: (1) Reclamation and FWS will reinitiate consultation concerning the chub if the population drops in any single year below 3,500 adult chub; (2) Reclamation, through AMP, will develop a comprehensive plan for the management and conservation of chub in the Grand Canyon; (3) Reclamation will work with the National Park Service to establish spawning populations of the chub in tributaries of the Colorado River such as Havasu, Shinumo, and Bright Angel Creeks; (4) Reclamation, through AMP, will continue to control non-native fish that prey on the chub; (5) Reclamation will takes steps to minimize variations in flow between months variations that can adversely affect backwater habitat; (6) Reclamation will undertake a nearshore ecology study to examine the effects of flow variations on nearshore habitat; (7) Reclamation and FWS will create a humpback chub refuge in a fish hatchery to protect against catastrophic loss of the chub in the Colorado River; and (8) Reclamation will continue to help other stakeholders in the Little Colorado River watershed develop a plan that protects watershed levels for the chub. Id. at 9-11, 52-55. FWS found that these conservation measures increase its - 11 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 confidence "that all adverse effects of the proposed action are reduced to the point that the [2008 Experimental Plan] will not jeopardize the species or result in adverse modification of critical habitat." Id. at 52. Significantly for this lawsuit, the 2008 Opinion also stated, in a single sentence and with little explanation, that it "replaces" the 1994 Opinion the opinion that found MLFF violates the ESA. By replacing the 1994 Opinion, the 2008 Opinion also had the effect of replacing the RPA, including the element 1A requirement that Reclamation implement its own program of steady flows or SASF. Needless to say, the parties have very different views concerning the 2008 Opinion. Reclamation cites the 2008 Opinion as conclusive evidence that it is not violating the ESA by current Dam operations. The Trust argues that the 2008 Opinion is invalid, that it was created as a defense to this lawsuit, that the 1994 Opinion still controls, and that the Dam operations therefore continue to violate the ESA. G. This Suit and the Parties' Motions. The Trust filed suit on December 7, 2007, asserting five claims: (1) Reclamation is violating the ESA by jeopardizing the humpback chub, (2) Reclamation is violating the ESA by destroying or adversely modifying the chub's critical habitat, (3) Reclamation is violating the ESA by "taking" the chub, (4) Reclamation is violating the ESA by failing to consult with FWS on the development of annual operating plans for the Dam, and (5) Reclamation is violating the National Environmental Policy Act ("NEPA") by failing to prepare environmental assessments or environmental impact statements for each of the Dam's annual operating plans. Dkt. #1. After Reclamation issued the 2008 Experimental Plan and FWS issued the 2008 Opinion, the Trust filed a supplemental complaint asserting three more claims: (6) Reclamation's Environmental Assessment for the 2008 Experimental Plan fails to comply with NEPA, (7) FWS's 2008 Opinion violates the ESA, and (8) the 2008 Experimental Plan violates the Grand Canyon Protection Act ("GCPA"). Dkt. #23. On February 15, 2008, the Trust moved for summary judgment on the first five claims. Dkt. #15. Reclamation responded with a motion to dismiss or, in the alternative, cross-motion for summary judgment. Dkt. #25. After extensive briefing and argument, the - 12 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Court granted summary judgment for Reclamation on Claims 4 and 5, but denied the remaining motions. See Dkt. #123. Because the outcome of Claims 1, 2, and 3 depends heavily on the validity of the 2008 Opinion, the Court deferred ruling on these claims until Claims 6, 7, and 8 were fully briefed. Id. The briefing has now been completed and oral argument was held on April 9, 2009. The remainder of this order will address the legal standards that govern this case, the validity of the 2008 Environmental Assessment (Claim 6), the validity of the 2008 Opinion (Claim 7), the validity of the 2008 Experimental Plan under the GCPA (Claim 8), the merits of Claims 1, 2, and 3, and appropriate remedies. II. Legal Standard. A. Standard of Review. Because the ESA, NEPA, and GCPA contain no standards for judicial review of agency actions, the Court must evaluate the administrative decisions of Reclamation and FWS using the Administrative Procedures Act ("APA"). See Or. Natural Res. Council v. Allen, 476 F.3d 1031, 1036 (9th Cir. 2007) ("As the ESA does not itself specify a standard of review of its implementation, we apply the general standard of review of agency action established by the [APA]."); Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 934 n.4 (9th Cir. 2006) ("When reviewing administrative decisions involving the ESA, we are guided by section 706 of the Administrative Procedure Act."); Akiak Native Cmty. v. U.S. Postal Serv., 213 F.3d 1140, 1146 (9th Cir. 2000) (APA standard used in reviewing NEPA claim). The Court may set aside an agency's decision under the APA only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. 706(2)(A); Pac. Coast Fed'n of Fishermen's Ass'n v. Nat'l Marine Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir. 2001). "Agency action should be overturned only when the agency has `relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.'" Id. (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 - 13 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (1983)). "This standard of review is highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision." Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007) (internal quotes and citation omitted). B. Scope of Review. Review under the APA usually is restricted to the administrative record. See, e.g., Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife Serv., 273 F.3d 1229, 1236 (9th Cir. 2001) ("[t]he reviewing court may not substitute reasons for agency action that are not in the record"); 5 U.S.C. 706(2) ("the court shall review the whole record or those parts of it cited by a party"). The Court may consider materials outside of the administrative record "(1) if necessary to determine whether the agency has considered all relevant factors and has explained its decision, (2) when the agency has relied on documents not in the record, . . . (3) when supplementing the record is necessary to explain technical terms or complex subject matter, [or] . . . (4) when plaintiffs make a showing of agency bad faith." Ctr. for Biological Diversity, 450 F.3d at 943. With the exception of the remedies discussion at the end of this order and a few documents addressed in the Court's order of April 6, 2009 (Dkt. #157), the Court's decision is limited to the administrative record supplied by the parties. Citations are to exhibits provided with the parties' briefing and found in the Court's electronic docket. III. Claim 6 Is Reclamation's 2008 Environmental Assessment Valid? The Trust alleges that Reclamation's Environmental Assessment of the 2008 Experimental Plan violates NEPA's procedural requirements. A. NEPA Requirements. "NEPA is a procedural statute that does not mandate particular results, but simply provides the necessary process to ensure that federal agencies take a hard look at the environmental consequences of their actions." Sierra Club v. Bosworth, 510 F.3d 1016, 1018 (9th Cir. 2007) (quotations and citation omitted). NEPA directs federal agencies to prepare a detailed environmental impact statement or "EIS" for every "major Federal action significantly affecting the quality of the human environment[.]" 42 U.S.C. 4332(c). NEPA - 14 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 permits an agency to prepare a lesser "environmental assessment" to determine whether the environmental impact of a proposed action is sufficiently significant to warrant an EIS. See 40 C.F.R. 1508.9. If the environmental assessment indicates that the agency's action "may have a significant effect upon the . . . environment, an [EIS] must be prepared." Sierra Club, 510 F.3d at 1018 (citation and italics omitted). "If the proposed action is found to have no significant effect, the agency must issue a finding to that effect," known as a finding of "no significant impact" or "FONSI," "accompanied by a convincing statement of reasons to explain why a project's impacts are insignificant." Id. (internal quotes and citation omitted). In this case, Reclamation prepared an Environmental Assessment and FONSI with respect to the 2008 Experimental Plan. See Dkt. 136, Exs. 1 & 5. An environmental assessment need not be extensive. Relevant regulations require the assessment to "[b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact," and to include "brief discussions of the need for the proposal, of alternatives . . . , of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted." 40 C.F.R. 1508.9. The Ninth Circuit has provided the following guidance for reviewing an environmental assessment: We note, first, that the scope of our review for such a claim is quite narrow. We ordinarily must defer to the informed discretion of the responsible federal agencies . . . [D]eference is accorded agency environmental determinations not because the agency possesses substantive expertise, but because the agency's decision-making process is accorded a presumption of regularity. Although not immune from judicial scrutiny, agency decisions are subjected to the narrow "arbitrary and capricious" standard. Accordingly, we consider only whether the [agency's] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Akiak Native Cmty, 213 F.3d at 1146 (quotation marks, citation, and footnote omitted). B. Did the Environmental Assessment Consider Sufficient Alternatives? The Trust contends that Reclamation considered too few alternatives in the 2008 Environmental Assessment. Specifically, the Trust argues that because MLFF constitutes a significant portion of the 2008 Experimental Plan, Reclamation should have considered alternatives to MLFF such as SASF. - 15 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Review of this argument begins with the purpose of the 2008 Experimental Plan. "The stated goal of a project necessarily dictates the range of `reasonable' alternatives[.]" City of Carmel-By-The-Sea v. U.S. Dep't. of Transp., 123 F.3d 1142, 1155 (9th Cir. 1997); see also Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C. Cir. 1991) ("We uphold an agency's definition of objectives so long as the objectives the agency chooses are reasonable, and we uphold its discussion of alternatives so long as the alternatives are reasonable and the agency discusses them in reasonable detail."). "The statutory and regulatory requirement that an agency must consider `appropriate' and `reasonable' alternatives does not dictate the minimum number of alternatives that an agency must consider." Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1245-46 (9th Cir. 2005) (consideration of only preferred alternative and no-action alternative acceptable); Akiak Native Cmty., 213 F.3d at 1148 (agency's consideration of two alternatives sufficient under NEPA). 1. The Purpose of the 2008 Experimental Plan. The stated purpose of the 2008 Experimental Plan was to engage in Dam releases designed to benefit the humpback chub while complying with federal law and meeting the project purposes of the Dam, including power generation. Dkt. #136, Ex. 1 at 5.6 The releases were to include a spring high flow event during a period of enriched sediment conditions to rebuild sandbars, beaches, and chub habitat, followed by five years of fall steady flows to benefit the chub. Reclamation explained that it sought to preserve recent increases in the humpback chub population while attempting to take further actions to benefit the chub, and therefore proposed a plan that was deliberately conservative. Id. at 5, 11. The plan included only two incremental steps a single spring high flow and five years of fall This is not unlike the purpose that Secretary Babbitt identified for the 1996 ROD: the goal "was not to maximize benefits for the most resources, but rather to find an alternative dam operating plan that would permit recovery and long-term sustainability of downstream resources while limiting hydropower capacity and flexibility only to the extent necessary to achieve recovery and long-term sustainability." Dkt. #27, Ex. 3 at G-11. - 16 - 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 steady flows and the only alternative addressed in the Environmental Assessment was a "no action" alternative which would continue operations under MLFF. The Environmental Assessment evaluated the two steps proposed in the Experimental Plan and found that they would not adversely affect the chub or its habitat. The March 2008 high flow of 41,500 cfs for 60 hours, which was timed to take advantage of increased sediment recently discharged into the Colorado River by the Paria River (a tributary 15 river miles downstream from the Dam), would be an "essential step" in conserving the sediment necessary for chub spawning and in determining the long-term sustainability of sediment resources in the river. Id. at 10. The five years of September-October steady flows would be timed to coincide with the emergence of young chub from the Little Colorado River into the mainstem of the Colorado. The steady flows would likely increase the warmth and productivity of backwaters used by young chub to feed and grow. Id. at 11. As the Environmental Assessment summarized: Creation and improvement of backwater rearing habitat expected from the high flow test could expand the spatial extent of backwater habitat. Steady flows could result in more hydraulically stable nearshore rearing habitats, slightly warmer temperatures and increased abundance of invertebrate prey items. Collectively, these effects should result in improved growth and survival of young-of-year humpback chub and other native fish prior to the onset of winter. Id. at 29 (citation omitted). Reclamation accordingly concluded that the 2008 Experimental Plan "is a logical next step in the implementation of adaptive management and for the conservation of the humpback chub." Id. at 12. 2. The Trust's Arguments. The Trust argues that the Environmental Assessment's consideration of only two alternatives the 2008 Experimental Plan and a "no action" alternative fails to satisfy NEPA's requirement that all reasonable and appropriate alternatives be evaluated. The Trust first argues that the "no action" alternative was not viable because it did not satisfy the purposes of the Plan and is a violation of the ESA. Dkt. #132 at 12-13. But NEPA regulations mandate consideration of a "no action" alternative in an EIS, see 40 C.F.R. - 17 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1502.14, strongly suggesting that such an alternative should also be considered in an environmental assessment. The Trust next argues that the Environmental Assessment failed to consider four alternatives developed under the AMP program as a long term experimental plan ("LTEP"). The LTEP alternatives include (1) continuing MLFF with periodic beach and habitat building flows and some winter power enhancement flows; (2) a beach and habitat building flow followed by steady flows in September and October (essentially the approach adopted in the 2008 Experimental Plan); (3) continuing MLFF but decreasing downramp rates and daily minimum flows; and (4) implementing SASF. Dkt. #91, Ex. 21 at 1-2. The Trust does not complain that alternatives 1 and 3 were not considered in the Environmental Assessment. The first alternative is similar to the "no action" alternative that was considered it would continue MLFF with occasional high flows and the third alternative was developed by electric power interests and would implement none of the changes the Trust views as important. The second alternative is essentially the 2008 Experimental Plan. Thus, of the four LTEP alternatives developed by Reclamation, the Trust argues primarily that only one of the alternatives SASF should have been addressed in the Environmental Assessment. See Dkt. #132 at 13-14.7 In its reply brief, the Trust argues that the Environmental Assessment failed to explain why a two-month steady flow period was adopted instead of a longer period. The Court finds, however, that the Environmental Assessment provides a sufficient explanation. The Assessment notes that longer periods of steady flow might cause an increase in the nonnative, warm-water fish that prey on the chub and compete for food and habitat. Dkt. #136, Ex. 1 at 11. The Assessment did not close the door on longer periods, noting that they would be considered if the chub population decreased under the Experimental Plan. Id. at 12. The Court finds this explanation to be sufficient. NEPA requires that a more extensive EIS "briefly discuss the reasons" for the elimination of an alternative. 40 C.F.R. 1502.14(a). The less extensive environmental assessment is to be "a concise public document" that "briefly" explains its analysis. 40 C.F.R. 1508.9(a). The Environmental Assessment's discussion of the steady flows satisfies this requirement of a brief explanation. - 18 - 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Given the narrowly circumscribed purpose of the 2008 Experimental Plan, the Court concludes that Reclamation's omission of SASF was not unreasonable. In light of recent gains in chub population, the purpose of the project was deliberately conservative: to implement a high flow event during a sediment-rich period in the spring to rebuild beaches and chub habitat, and to implement fall steady flows to aid young chub, all without violating Reclamation's other obligations under the Law of the River or the purposes of the Dam such as power generation. SASF did not fit this narrow objective; it would have worked a much more dramatic change in Dam operations and river conditions. Because SASF was not consistent with the measured approach adopted by Reclamation, NEPA does not require that it be considered. As the Ninth Circuit has explained, "[a]lternatives that do not advance the purpose of the . . . Project will not be considered reasonable or appropriate." Native Ecosystems Council, 428 F.3d at 1247; see also City of Angoon v. Hodel, 803 F.2d 1016, 1021 (9th Cir. 1986) (per curiam) ("When the purpose is to accomplish one thing, it makes no sense to consider the alternative ways by which another thing might be achieved."); Trout Unlimited v. Morton, 509 F.2d 1276, 1286 (9th Cir. 1974) ("The range of alternatives . . . need not extend beyond those reasonably related to the purposes of the project."). The Trust argues that Reclamation cannot define the purpose of a project so narrowly as to unreasonably restrict the alternatives considered. See City of Carmel-By-The-Sea, 123 F.3d at 1155. This is a correct statement of the law, but the Court does not find the approach taken by Reclamation in the 2008 Experimental Plan to be unreasonable. Not wanting to jeopardize the chub's recent population gains by too dramatic a change, Reclamation opted for a conservative approach. In addition to the unknown effects of dramatic change, Reclamation noted that longer periods of steady flow might cause an increase in warm-water predators and competitors of the chub. Dkt. #136, Ex. 1 at 11-12.8 Given the deference due The warm-water predators about which Reclamation and FWS were concerned should be distinguished from the cold-water predators primarily rainbow trout that have been mechanically removed from key stretches of the river. As Reclamation notes in the Environmental Assessment, "[t]o date, efforts to control warm water nonnative fish predators - 19 - 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the administrative agency charged with managing the Dam, the Court cannot conclude that the purpose of the Experimental Plan was unreasonably narrow. The Trust might wish for a broader purpose, but NEPA is a procedural statute. See Sierra Club, 510 F.3d at 1018. It does not mandate a broader purpose. As the Trust itself notes, NEPA "is not predicated on whether the Experimental Plan is a `wise decision.' The only relevant issue is whether Reclamation satisfied NEPA's mandate to analyze a range of reasonable alternatives." Dkt. #144 at 3; see also The Lands Council v. McNair, 537 F.3d 981, 1000 (9th Cir. 2008) (NEPA exists to ensure a process as opposed to imposing substantive requirements on federal agencies). Given the narrow purpose of the Plan, the Court concludes that it did. What is more, by arguing that the Environmental Assessment should have put MLFF in question and considered alternatives such as SASF, the Trust really is arguing that Reclamation should redo the 1995 FEIS. The 1995 FEIS was a NEPA document and was considerably more detailed than the 2008 Environmental Assessment. The 1995 FEIS evaluated MLFF, SASF, and several other alternatives for Dam operations. See Dkt. #123 at 17-20. The FEIS process spanned five years and included wide publication, numerous public meetings, and Reclamation's receipt of more than 17,000 comments. Dkt. #27, Ex. 3 at G-5. The 1996 ROD, which selected MLFF, committed that "any operational changes will be carried out in compliance with NEPA." Dkt. #27, Ex. 3 at G-10. The two components of the 2008 Experimental Plan are operational changes from MLFF and were evaluated under NEPA in the Environmental Assessment.9 NEPA is designed "to ensure that federal agencies take a hard look at the environmental consequences of their actions." Sierra Club, 510 F.3d at 1018. Reclamation [have] not been shown to be effective." Dkt. #136, Ex. 1 at 11. The Trust acknowledges that "[s]imilar experimental actions in prior years did not conduct a re-evaluation of MLFF impacts under NEPA." Dkt. #144 at 6. The Trust does not suggest, however, that it ever objected to this incremental approach. - 20 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 took a hard look at MLFF and SASF in the 1995 FEIS and the Trust has provided no basis for the Court to conclude that NEPA mandates a second hard look.10 C. Additional Trust Arguments. The Trust makes four additional arguments about the 2008 Environmental Assessment. The Court will address each briefly. First, the Trust asserts that the Environmental Assessment should have considered the effects of MLFF on the chub and its habitat because MLFF was the system that would be used ten months of the year under the 2008 Experimental Plan. Alternatively, the Trust argues that MLFF was the "no action" alternative and should have been evaluated for that reason. Reclamation responds that the Trust waived these arguments by failing to raise them in the Trust's comments on the draft Environmental Assessment. The Court agrees. The Trust's comment did not assert that the assessment was flawed because it failed to evaluate MLFF. See Dkt. #136, Ex. 4. Failure to raise an objection in response to a draft NEPA document forfeits that objection for purposes of later litigation. Dep't of Transp. v. Public Citizen, 541 U.S. 752, 764-65 (2004). Second, the Environmental Assessment states that it is "tiered" to the 1995 FEIS. Dkt. #136, Ex. 1 at 3. The Trust contends that tiering, although permitted by the regulations, The Trust argues that the analysis of MLFF in the 1995 FEIS was inadequate, but this argument comes several years too late. There is a six-year limitation period for NEPA claims. Sierra Club v. Penfold, 857 F.2d 1307, 1315 (9th Cir. 1988). If the Trust wanted to obtain judicial review of the 1995 FEIS and its recommendation of MLFF, it should have sought such review within the period of limitations. (The Trust was involved in the NEPA process that led to the 1995 FEIS. See, e.g., Dkt. #27, Ex. 3 at G-7.) The Trust also argues that the Environmental Assessment should have considered the effects of MLFF when analyzing the "cumulative" effects of the 2008 Experimental Plan. But this really is just another attack on MLFF. The Trust does not suggest that either of the two experiments outlined in the Plan would adversely affect the chub and add to any cumulative negative effects. See Dkt. #132 at 16. Finally, the Trust argues that much scientific data on MLFF has developed since the 1995 FEIS. This is true, but the existence of such data does not broaden the narrow purpose of the 2008 Experimental Plan. And the Trust does not claim in this lawsuit that Reclamation should prepare a supplemental FEIS based on new data. See 40 C.F.R. 1502.9(c)(1)(ii); Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371-73 (1989); Friends of the Clearwater v. Dombeck, 222 F.3d 552, 557-58 (9th. Cir. 2000). - 21 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 is improper in this case for several reasons, including Reclamation's failure to identify specific portions of the 1995 FEIS to which the Assessment is tiered. The Trust failed to raise this issue in its comment on the draft Environmental Assessment. See Dkt. #136, Ex. 4. The argument therefore is waived. Dep't of Transp., 541 U.S. at 764-65. Third, the Trust argues that the Environmental Assessment's FONSI ignores impacts on Grand Canyon National Park. This argument, again, focuses primarily on MLFF. As already noted, the 2008 Experimental Plan did not introduce MLFF; that system was introduced and evaluated in the 1995 FEIS. The Environmental Assessment did specifically consider the effect of the Experimental Plan's two components on Park values. Dkt. #136, Ex. 1 at 1, 5 & Ex. 5 at 7. The Trust does not demonstrate that these two components the March 2008 high flow and the fall steady flows for five years will adversely impact Park values. The Trust cites suggestions by the National Park Service that MLFF flows erode beaches and habitat and that SASF flows should be implemented. Dkt. #91, Ex. 23. These comments also focus primarily on MLFF. Given the narrow purpose of the Plan, the Court cannot conclude that the Environmental Assessment and its FONSI are legally flawed under NEPA by failing to consider the effects of MLFF. Moreover, the Ninth Circuit has held that disagreements by other government agencies do not render an environmental assessment invalid under NEPA. See Akiak Native Cmty., 213 F.3d at 1146-47. Finally, the Trust argues that Reclamation should have prepared a full EIS in light of the "highly controversial" nature of the 2008 Experimental Plan. Again, however, the controversy on which the Trust relies is the use of MLFF. The 2008 Experimental Plan proposed two modest additions designed to capitalize on current sediment conditions in the river and recent gains in chub population. The Trust has not shown that those two proposals are highly controversial. Moreover, mere disagreement with a project or the existence of information supporting an opponent's view do not render a project "highly controversial" for purposes of NEPA. Native Ecosystems, 428 F.3d at 1240. "Simply because a challenger can cherry pick information and data out of the administrative record to support its position does - 22 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 not mean that a project is highly controversial or highly uncertain." Id. The Court does not find that an EIS is required for the 2008 Experimental Plan on the basis of high controversy. D. Claim 6 Conclusion. Given the deference owed to agencies under the APA, the limited purpose of the 2008 Experimental Plan, and the procedural nature of NEPA, the Court concludes that the Environmental Assessment considered appropriate and reasonable alternatives and does not amount to a clear error of judgment. The Trust has not overcome the "presumption of regularity" afforded the Environmental Assessment. See Akiak Native Cmty., 213 F.3d at 1146. The Court will enter summary judgment in favor of Reclamation on Claim 6. IV. Claim 7 Does the 2008 FWS Opinion Violate the ESA? The 2008 Opinion issued by FWS constitutes a final agency action subject to judicial review. See Bennett, 520 U.S. at 177-78; Or. Natural Res. Council v. Allen, 476 F.3d 1031, 1035-36 (9th Cir. 2007). The Trust contends that it is legally insufficient under the ESA. The 2008 Opinion contains a detailed discussion of the Experimental Plan's high flow experiment and concludes that although it might initially have an adverse impact on young chub caught in the high water, it likely will construct more sandbars and backwaters than previous high flow experiments because of the substantial amount of sediment in the river in early 2008. Dkt. #136, Ex. 11 at 44-45. FWS concludes that these formations will be favorable to chub spawning and survival. Id. The 2008 Opinion also contains a detailed discussion of the Experimental Plan's twomonth steady flows in September and October of each year. Id. at 44-47. FWS opines that the effect of these flows "on habitat persistence is most likely to be positive" and that water temperatures are likely to be warmer, benefitting the chub. Id. at 46-47. FWS also determines that the steady flows should increase food sources available for chub in the backwaters. Id. at 48. The Trust generally does not challenge these conclusions.11 The Trust does argue that the 2008 Opinion fails to address the effects of MLFF on chub nearshore habitat. This is not correct. The 2008 Opinion notes that the 1996 high flow experiment deposited more sandbars at a faster rate than predicted, but that "many sandbars - 23 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The key portion of the 2008 Opinion for purposes of this case is the statement that it "replaces" the 1994 Opinion that found MLFF to be a violation of the ESA. Id. at 2. As counsel for the Federal Defendants conceded at oral argument, the 2008 Opinion thereby represents FWS's new opinion that MLFF does not violate the ESA. This is a sharp departure from FWS's longstanding opinion. The 1994 Opinion was clear: "the proposed operation of Glen Canyon Dam according to operating and other criteria of the MLFF . . . is likely to jeopardize the continued existence of the humpback chub . . . and is likely to destroy or adversely modify designated critical habitat." Dkt. #136, Ex. 17 at 3. In 1999, FWS stated that Reclamation had not taken sufficient steps to implement the steady flows required by RPA element 1A. Dkt. #22, Ex. 7 at 3. Reclamation took the same position in 2002, stating that RPA element 1A "has not seen sufficient progress." Dkt. #22, Ex. 8 at 3. FWS reiterated this position in 2006 and noted that "daily fluctuations are detrimental to native fish populations." Dkt. #91, Ex. 21 at 3. In 2007, just one year before it issued the 2008 Opinion, FWS issued a report that confirmed the adverse effects of MLFF on chub habitat. Dkt. #91, Ex. 22. The report observed that "[t]he much hoped for outcome of modest improvement in sandbar resources, as originally proposed and predicted in the [1995 FEIS], has not been realized. . . . Loss of sand habitats in the ecosystem was documented under the No-Action Era (1964-1990), but has continued since dam operations have been altered to mitigate sandbar erosion [through MLFF]." Id. at 213. "Although MLFF limitations on the daily allowable peak discharges built during the 1996 high flow test eroded in as little as several days following the experiment." Dkt. #136, Ex. 11 at 23. FWS attributes this erosion to MLFF. Id. at 24, 45. The 2008 Opinion also considers the effect of MLFF on the March 2008 high flow designed to build nearshore habitat: "MLFF flows in the months following the March 2008 test flow will consist of moderately low fluctuating flows . . . , with maximum flow and range fluctuations of 9,300-17,300 cfs occurring in July and August of 2008. Thus if the high flow test is successful in creating backwaters they should persist over a longer period than previous tests." Id. at 45. The Court cannot accept the Trust's claim that FWS failed to consider the possible effects of MLFF on the March 2008 high flow event. - 24 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 were intended to reduce sand export and bar erosion, it appears that the annual pattern of monthly volumes released from the dam (with peak daily flows at their highest during the summer sediment input months of July and August) is the greatest factor preventing accumulation of new sand inputs from tributaries over multi-year time scales." Id. at 214. Thus, "[t]he [1995 FEIS] assumption that sand would accumulate on the bed of the river over multiple years is now known to be flawed." Id. The 2008 Opinion changed all of this, but without directly addressing the effect of MLFF on the chub or its habitat. The opinion never explains why FWS's long-held position is incorrect. It never discusses the many studies that seem to confirm that MLFF destroys chub habitat. But in fairness, the 2008 Opinion does contain at least a limited explanation of its departure from the 1994 Opinion. That explanation is set forth here in full: In 1995, in a consultation on the operations of Glen Canyon Dam, specifically on the MLFF, we anticipated that operation of Glen Canyon Dam (the monthly, daily, and hourly operations as defined in the MLFF and the 1996 ROD) would jeopardize the continued existence of the species. Populations in the upper Colorado River basin have declined as of January 2008. The Grand Canyon population, which was the population analyzed in the 1995 biological opinion, appears to have recently improved to around 6,000 adult fish. This is less than the number of adult fish thought to be present in the Grand Canyon in 1995, and indeed the status of the species is reduced overall from what it was in 1995. Much of the scope of dam operations for the next five years under the [2008 Experimental Plan] will contain elements of the 1996 (MLFF) and 2007 (Shortage Guidelines) RODs, such as the range of daily flow fluctuation and seasonal variations in monthly volume. However, the most recent and best available estimates of humpback chub population trend (Coggins 2007) indicate that there has been increased recruitment into the population from some year classes starting in the mid- to late-1990s, during the period of MLFF operations, causing the decline in humpback chub to stabilize and begin to reverse. This improvement in the population trend has been attributed in part to the results of nonnative fish mechanical removal, increases in temperature due to lower reservoir elevations and inflow events, the 2000 low steady summer flow experiment, and other experimental flows and actions (USGS 2006a). Considering though that the most recent population modeling indicates the increase was due to increased recruitment as early as 1996 but no later than 1999 (Coggins 2007), the increase in recruitment began at least four and as many as nine years prior to implementation of nonnative fish control, incidents of warmer water temperatures, the 2000 low steady summer flow experiment, and the 2004 high flow test. The exact causes of the increase in recruitment, and whether it is attributable to conditions in the mainstem or in the Little Colorado River are unclear. Nevertheless, removal of nonnative fish, increased temperature due to drought, and habitat conditions resulting from natural and experimental actions will likely be beneficial to humpback chub, and further increases in recruitment are likely based on recent catch rates of sub-adult humpback chub - 25 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Coggins 2007). These results indicate that some combination of conditions under MLFF has benefitted humpback chub, and that more recent conservation actions likely have as well, and are likely to continue to. Dkt. #136, Ex. 11 at 51-52. FWS's rationale seems to progress as follows: (1) the 1994 Opinion predicted the chub would decline under MLFF; (2) although there has been a general decline since 1995, the chub population has stabilized and increased in the last few years; (3) modeling suggests that the increase started under MLFF in the late 1990s, before other helpful conditions and measures had occurred; (4) although the exact cause of the population increase is not known, it appears the increase will continue and even accelerate under MLFF, particularly with the helpful conditions and measures taken to date and the two components of the 2008 Experimental Plan; and (5) therefore, FWS can no longer conclude that MLFF is detrimental to the chub or will cause further declines. For several reasons, the Court finds this logic to be insufficient, even under deferential APA review. First, even if it is conceded that recent science shows a stabilization and increase of the chub population, the 2008 Opinion does not explain why MLFF no longer destroys or adversely modifies the chub's critical habitat, particularly the mainstem sandbars and backwaters considered necessary for the growth and feeding of young chub. The opinion acknowledges that the fluctuating water levels of MLFF erode backwater sandbars and beach habitat, reduce food production, and decrease water temperatures. Dkt. #136, Ex. 11 at 16, 21-25, 45. After conceding these points, the opinion devotes only one paragraph to critical habitat, stating that "[c]ritical habitat . . . along the Colorado River will be affected in the ways described above." Id. at 48-49. This statement would seem to suggest that the critical habitat will continue to be adversely modified by MLFF, and yet the paragraph goes on to assert without citing any study that the number of backwaters are likely to increase and that the "quality of nearshore habitats, especially during September and October should also improve, becoming warmer and more productive relative to current conditions." Id. at 49 (emphasis added); see also id. at 55. The opinion seems to be saying that the two components of the Experimental Plan will make things better than they would be without the - 26 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plan. This might support an opinion that the two components of the Plan will not themselves destroy or adversely modify critical habitat, but it provides no basis for concluding that MLFF does not do so. All of the studies cited in the 2008 Opinion seem to suggest otherwise. As noted above, an agency cannot entirely fail to consider an important aspect of a problem, nor can it offer an explanation for its decision that runs counter to the evidence before it. Motor Vehicle Mfrs. Ass'n of U.S., 463 U.S. at 43; Pac. Coast Fed'n of Fishermen's Ass'n, 265 F.3d at 1034. The 2008 Opinion fails adequately to address the effect of MLFF on chub habitat.12 Second, the 2008 Opinion constitutes a significant change of course by FWS. Only one year earlier, FWS told Reclamation that MLFF erodes sandbars and destroys chub habitat. Dkt. #91, Ex. 22 at 213-14. Federal agencies certainly have the discretion to change positions, "[b]ut an agency changing its course must supply a reasoned analysis." Motor Vehicle Mfrs. Ass'n, 463 U.S. at 57 (quotation omitted). As the Ninth Circuit has explained, "an agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored, and if an agency glosses over or swerves from prior precedents without discussion it may cross the line from the tolerably terse to the intolerably mute." Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668, 687-88 (9th Cir. 2007) (internal quotation omitted). Other than the insufficient paragraph quoted above, FWS provides no explanation for its departure from the 1994 Opinion. During oral argument, counsel for the Federal Defendants was unable to identify any study showing that MLFF does not harm critical habitat. After the argument, counsel submitted a supplemental brief (Dkt. #161) citing a 2004 modeling study by Korman and others. See Dkt. #151, Ex. 31. The 2008 Opinion relied on the Korman study to conclude that the September-October steady flows would be more beneficial to chub habitat than MLFF flows during the same period (Dkt. #136, Ex. 11 at 45-46), but not in support of the conclusion that MLFF does not destroy or adversely modify critical chub habitat (id. at 4849). If FWS relied on this modeling study for its new opinion to the exclusion of other studies that have found MLFF detrimental to nearshore habitat (see id. at 21-25, 45) it must explain why. - 27 - 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Third, the ESA requires FWS to consider not only whether a propose

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