San Luis & Delta-Mendota Water Authority et al v. Salazar et al

Filing 588

ORDER DIRECTING QUESTIONS TO 706 EXPERTS, signed by Judge Oliver W. Wanger on 2/19/10. (Coffman, Lisa)

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 1 The Court, having considered the parties input and objections, has the following instructions for and asks the following questions of the 706 Experts: Preliminary Instructions: Your responses to these questions The Delta Smelt Consolidated Cases 1:09-CV-00407 OWW DLB QUESTIONS FOR 706 EXPERTS UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

should be limited to information contained in the Biological Opinion ("BiOp"), administrative record, declarations, and pleadings in this case (collectively referenced as "the record"). You need not comb the entire administrative record to find answers to these questions. Rather, you may rely on the BiOp, However, if you the parties' pleadings, and the declarations to help identify relevant portions of the administrative record. you are free to use them as you see fit. Court's attention. do find other relevant documents in the administrative record, Your answers should be provided in the form of a written memorandum directed to the If a question cannot be answered based on the If record, please indicate why the question cannot be answered. to the Court.

you need further clarification, please communicate your requests

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Questions: 1. Please explain the evidence in the record that supports the Fish and Wildlife Service's ("FWS") conclusion that entrainment has "sporadically significant" effect on population dynamics? a. If not encompassed in the answer to the above question, please explain any other evidence in the record that supports FWS's general conclusion that entrainment has an effect on subsequent abundance? 2. Please explain the evidence in the record that supports FWS's contention(s) regarding the existence of "break points" (i.e., that at certain flows less negative or equal to -5000 cfs, entrainment of smelt increases noticeably)? a. Does the Johnson study cited in the BiOp, or any other document in the record, such as AR 9454, provide support for this? b. What role does figure B-13 play in FWS's rationale for flow restrictions? c. Was relevant population data available as of the date of issuance of the BiOp (December 15, 2008) for use in evaluating the impact of negative OMR flows on entrainment? d. If so, was it unreasonable for FWS to rely in part on the information represented in figure B-13 (which compares OMR flows against raw salvage numbers)? e. Does Dr. Deriso's independent analysis of data in the record take into consideration all relevant factors (e.g., geographic distribution)? f. Does the record contain evidence supporting FWS's conclusion that the specific flow regimes imposed by 2

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the BiOp are necessary to minimize entrainment of delta smelt by project operations? 3. Please explain the evidence in the record that supports the use of turbidity as an indicator for the timing of upstream migration of delta smelt? 4. Please explain any record evidence of historical delta smelt migration patterns that reflect migration of delta smelt into the South and Central delta each year, independent of operation of the pumps? 5. Is FWS's comparison of historical baseline data to CALSIM runs scientifically reasonable, in light of FWS's conclusion that CALSIM runs intended to represent historical conditions did not accurately nor precisely match historical baseline data? 6. Were FWS's decisions (in light of the justifications offered by FWS) regarding the years it chose to construct the incidental take statement scientifically reasonable? 7. Please explain the evidence in the record demonstrating that project operations exacerbate the effect/impact of other "stressors" (e.g., toxics)?

SO ORDERED Dated: February 19, 2010 /s/ Oliver W. Wanger Oliver W. Wanger United States District Judge

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