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

Filing 842

STIPULATION and ORDER for Interim Remedy through June 30, 2011, signed by Judge Oliver W. Wanger on 2/25/2011. (Kusamura, W)

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KAMALA D. HARRIS, State Bar No. 146672 Attorney General of California ROBERT W. BYRNE, State Bar No. 213155 Supervising Deputy Attorney General CLIFFORD T. LEE, State Bar No. 74687 CECILIA L. DENNIS, State Bar No. 201997 ALLISON GOLDSMITH, State Bar No. 238263 Deputy Attorneys General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] Attorneys for Plaintiff Intervenor California Department of Water Resources IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

1:09-cv-407 OWW THE DELTA SMELT CASES ______________________________________ Consolidated With: SAN LUIS & DELTA-MENDOTA WATER Case No. 1:09-cv-422 OWW GSA Case No. 1:09-cv-631 OWW GSA AUTHORITY, et al. v. SALAZAR, et al. ______________________________________ Case No. 1:09-cv-892 OWW GSA Partially Consolidated With: STATE WATER CONTRACTORS v. Case No. 1:09-cv-480 OWW GSA SALAZAR, et al. Case No. 1:09-cv-01201-OWW-DLB ______________________________________ COALITION FOR A SUSTAINABLE STIPULATION AND ORDER FOR DELTA, et al. v. UNITED STATES FISH INTERIM REMEDY THROUGH JUNE AND WILDLIFE SERVICE, et al. 30, 2011 ______________________________________ Date: February 25, 2011 METROPOLITAN WATER DISTRICT Time: 8:30 a.m. OF SOUTHERN CALIFORNIA v. Courtroom: 3 UNITED STATES FISH AND WILDLIFE SERVICE, et al. Judge: Honorable Oliver W. Wanger ______________________________________ STEWART & JASPER ORCHARDS, et al. v. UNITED STATES FISH AND WILDLIFE SERVICE, et al. ______________________________________ FAMILY FARM ALLIANCE v. KENNETH SALAZAR, et al.

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STIPULATION AND ORDER FOR INTERIM REMEDY THROUGH JUNE 30, 2011 (1:09-cv-407 OWW )

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WHEREAS on December 14, 2010, the Court entered its "Memorandum Decision re Cross Motions for Summary Judgment" (Doc. 757) in the above-captioned Consolidated Delta Smelt Cases. The Memorandum Decision concluded that parts of the December 15, 2008 Biological Opinion (BiOp) addressing the impacts of the coordinated operations of the federal Central Valley Project (CVP) and the State Water Project (SWP) on the Delta smelt and its reasonable and prudent alternatives were arbitrary, capricious, and unlawful; WHEREAS on December 27, 2010, the Court entered an "Amended Order on CrossMotions for Summary Judgment" (Doc. 761). The Amended Order remanded the BiOp to Defendant United States Fish and Wildlife Service (USFWS) without vacatur for further consideration. This amended order remains in effect except as modified by this stipulation; WHEREAS the parties seek to settle and compromise issues relating to the interim operation of the CVP and the SWP related to effects to Delta smelt through June 30, 2011; WHEREAS USFWS intends that its determinations regarding, and the CVP and SWP compliance with, the OMR flow criteria identified in this stipulation will provide equivalent protection for Delta smelt through June 30, 2011, as the protection set forth in the BiOp. The parties hereby agree and stipulate to enter into the following agreement for interim operations of the CVP and the SWP: 1. This agreement is for the limited purpose of resolving CVP and SWP operations

through June 30, 2011. This agreement shall become effective immediately upon entry of this Stipulation and Order by the Court. 2. Operating Criteria for Interim Remedy

Once Action 2 or Action 3 is triggered under the BiOp by USFWS, the Interim Remedy will provide for a 14-day average Old and Middle River (OMR) flow in a range between -1,250 cfs to -6,100 cfs. The simultaneous 5-day running average of the OMR requirements shall be within 25 percent of the 14-day average. USFWS will set and may modify OMR flows within this range based upon best available science using real time data concerning overall Delta smelt distribution, turbidity, salvage, incidental take, temperature and other relevant physical and 2
STIPULATION AND ORDER FOR INTERIM REMEDY THROUGH JUNE 30, 2011 (1:09-cv-407 OWW )

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biological factors. As of the date of this stipulation, no actions have been triggered under the BiOp this year. If OMR flows are triggered, USFWS anticipates setting initial OMR flows within a range of -5,000 cfs and -6,100 cfs in an experimental fashion if USFWS determines that the best available science and consideration of all of the factors listed above indicate that such flows would be adequately protective of smelt and consistent with avoiding jeopardy to listed species and adverse modification to designated critical habitat. Any determination to change OMR flow from the initial flow level will be based on best available science using real time data concerning overall Delta smelt distribution, turbidity, salvage, incidental take, temperature and other relevant physical and biological factors. USFWS will consider the technical information provided through the enhanced coordination process set forth below in making its determinations. This agreement does not affect Reclamation's obligation to operate the CVP to meet other legal requirements or DWR's obligation to operate the SWP to meet other legal requirements. 3. Enhanced Coordination Process

The existing Smelt Working Group (SWG) and Water Operations Management Team (WOMT) will be used to advise USFWS on smelt conservation needs and water operations. In addition, a Delta Condition Team (DCT) consisting of scientists and engineers from the state and federal agencies, water contractors, and environmental groups will meet on Monday mornings to review the real time operations and Delta conditions, including data from new turbidity monitoring stations and new analytical tools such as the Delta smelt behavior model. The members of the DCT will provide their individual information to the SWG in accordance with a process provided by the SWG, which will meet later on Monday morning to assess risks to Delta smelt based upon Delta conditions and the other factors set forth in paragraph 2 above. The SWG and individuals of the DCT may provide, in accordance with a process provided by the WOMT, their information to the WOMT for its consideration in developing a recommendation to USFWS for actions to protect Delta smelt and other listed fish. The WOMT will supply information for USFWS to consider, including impacts to other species, and water supply impacts. After meeting with the WOMT, USFWS shall make the final determination on OMR flow criteria to be 3
STIPULATION AND ORDER FOR INTERIM REMEDY THROUGH JUNE 30, 2011 (1:09-cv-407 OWW )

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implemented by Reclamation and DWR and shall explain its determination in writing based on the best available science. USFWS will increase the transparency of the decision process by documenting the basis for decisions and providing all supporting documentation to interested parties via USFWS's website. USFWS will finalize a determination regarding OMR flow criteria and provide it to the Court consistent with the 48 hour notification described below. 4. Notice to the Court

USFWS will submit a notice to the Court 48 hours in advance of the implementation by Reclamation and DWR of any determinations that will result in a change to OMR flows. The notice to the Court will include an explanation for the change based on the factors identified in paragraphs 2 and 3 above, and, to the extent that the WOMT has provided information to USFWS on water supply impacts, the notice to the Court will include these impacts. If USFWS submits a notice to the Court, any party may provide information on economic impacts and other information that it deems relevant, through its own notice to the Court. Any party may seek judicial review of and relief from such changes to OMR flows. Should any Plaintiff or PlaintiffIntervenor seek judicial review under paragraph 4 of this stipulation, the terms of this stipulation shall immediately and henceforth become inoperative. 5. This agreement does not limit the rights of Plaintiffs and Plaintiff-Intervenor to seek

an interim remedy in the Consolidated Delta Smelt Cases for project operations after June 30, 2011. Nor does this agreement limit the rights of Plaintiffs and Plaintiff-Intervenor to move for injunctive relief in the Consolidated Salmonid Cases (Case No. 1:09-cv-1053-OWW), nor does it otherwise affect that case nor the 2009 Biological Opinion on the CVP and SWP issued by the National Marine Fisheries Service that is at issue in that case. This agreement also does not limit the rights of Federal Defendants and Defendant-Intervenors from raising any and all defenses to any interim remedies and requests for injunctive relief put forward by Plaintiffs in this matter and in the Consolidated Salmonid Cases. 6. Execution of this stipulation shall not be deemed an admission of any issue of fact or

law by any party, and shall not be deemed a waiver of any claim or defense or basis for appeal 4
STIPULATION AND ORDER FOR INTERIM REMEDY THROUGH JUNE 30, 2011 (1:09-cv-407 OWW )

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raised by any party. This stipulation is for the limited purpose of addressing CVP and SWP operations through June 30, 2011, and shall not be binding or considered precedential for any other purpose. By entering into this agreement, the parties do not necessarily concede any of the findings or conclusions contained in the Court's prior orders and decisions. 7. The parties request that the Court set a status conference on or about June 1, 2011, to

address the time frame within which the USFWS will complete consultation in order to issue a new Biological Opinion and to set forth a schedule to determine criteria for interim operations pending completion of that Biological Opinion. Dated: February 24, 2011 Respectfully submitted, KAMALA D. HARRIS Attorney General of California ROBERT W. BYRNE Supervising Deputy Attorney General CLIFFORD T. LEE CECILIA L. DENNIS ALLISON GOLDSMITH Deputy Attorneys General /s/ Cecilia L. Dennis CECILIA L. DENNIS Deputy Attorney General Attorneys for Plaintiff Intervenor California Department of Water Resources

Dated: February 24, 2011

BEST, BEST & KREIGER LLP /s/ Gregory K. Wilkinson GREGORY K. WILKINSON Attorneys for Plaintiff State Water Contractors

Dated: February 24, 2011

DIEPENBROCK HARRISON /s/ Eileen M. Diepenbrock EILEEN M. DIEPENBROCK Attorneys for Plaintiffs San Luis & DeltaMendota Water Authority and Westlands 5 Water District

STIPULATION AND ORDER FOR INTERIM REMEDY THROUGH JUNE 30, 2011 (1:09-cv-407 OWW )

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1 Dated: February 24, 2011 2 3 4 5 6 7 8 /s/ Christopher J. Carr 9 10 11 12 13 /s/ Brandon M. Middleton 14 15 16 17 Dated: February 24, 2011 18 19 20 21 22 23 24 25 26 27 28 6
STIPULATION AND ORDER FOR INTERIM REMEDY THROUGH JUNE 30, 2011 (1:09-cv-407 OWW )

NOSSAMAN LLP /s/ Paul S. Weiland PAUL S. WEILAND Attorneys for Plaintiff Coalition for a Sustainable Delta and Kern County Water Agency

Dated: February 24, 2011

MORRISON & FOERSTER LLP

CHRISTOPHER J. CARR Attorneys for Plaintiff The Metropolitan Water District of Southern California Dated: February 24, 2011 PACIFIC LEGAL FOUNDATION

BRANDON M. MIDDLETON Attorneys for Plaintiffs Stewart & Jasper Orchards, Arroyo Farms, LLC, and King Pistachio Grove THE BRENDA DAVIS LAW GROUP /s/ Brenda W. Davis BRENDA W. DAVIS Attorneys for Plaintiff Family Farm Alliance Dated: February 24, 2011 IGNACIA S. MORENO Assistant Attorney General Environment and Natural Resources Division U.S. Department of Justice /s/ Ethan C. Eddy ETHAN C. EDDY Attorneys for the Federal Defendants

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Dated: February 24, 2011

NATURAL RESOURCES DEFENSE COUNCIL /s/ Katherine Poole KATHERINE POOLE Attorneys for Defendant Intervenor Natural Resources Defense Council

Dated: February 24, 2011 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 FOR GOOD CAUSE SHOWN, SO ORDERED: Dated: February 25, 2011

EARTHJUSTICE /s/ George Torgun GEORGE TORGUN Attorneys for Defendant Intervenor The Bay Institute and Natural Resources Defense Council

/s/ OLIVER W. WANGER U.S. DISTRICT COURT JUDGE

STIPULATION AND ORDER FOR INTERIM REMEDY THROUGH JUNE 30, 2011 (1:09-cv-407 OWW )

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