Jan 122015


Thursday, Jan. 8 - The justices will consider whether to grant the writ of certiorari at a conference on Friday, Jan. 9. Their decision will be announced Monday.

See SCOTUSBlog for briefs and this L.A. Times article by David Savage for background.

The Ninth Circuit opinion petitioners want reviewed is here.

The summary of that Ninth Circuit opinion (which does not constitute any portion of the court's ruling) is below.

The panel reversed in part and affirmed in part the district
court’s judgment invalidating a 2008 biological opinion by
the U.S. Fish and Wildlife Service that concluded that the
Central Valley and State Water Projects jeopardized the
continued existence of the delta smelt and its habitat.

The Central Valley Project and the State Water Project,
operated respectively by the U.S. Bureau of Reclamation and
the State of California, supply water originating in northern
California to agricultural and domestic consumers in central
and southern California. The source of the water—the
estuary at the confluence of the San Francisco Bay and the
Sacramento-San Joaquin Delta—is the lone habitat for the
delta smelt, a threatened species under the Endangered
Species Act (“ESA”). After the Bureau of Reclamation
requested a biological opinion (“BiOp”), the U.S. Fish and
Wildlife Service (“FWS”) concluded that the Central Valley
operations would threaten the delta smelt and, as required by
the ESA, proposed alternatives to ameliorate the effect on the
smelt, including reducing the water exported to southern
California. The plaintiffs-appellees—various water districts,
water contractors, and agricultural consumers—brought suit
under the Administrative Procedure Act against various
federal defendants. The district court concluded that the 2008
BiOp was arbitrary and capricious.

Concerning the scope of the record, the panel held that the
district court overstepped its bounds in admitting additional
declarations from the parties’ experts. The panel held that it
would consider the BiOp and evidence submitted by the
parties that the FWS considered in making its decision, and
the testimony of the four experts the district court appointed
pursuant to Federal Rule of Evidence 706.

Concerning the merits, the panel held that the 2008
BiOp’s reliance on raw salvage figures to set the upper and
lower Old and Middle Rivers flow limits was not arbitrary
and capricious. The panel also held that the 2008 BiOp’s
determination of X2 (the point in the Bay-Delta at which the
salinity is less than two parts per thousand) was not arbitrary
and capricious. The panel further held that the BiOp’s
incidental take statement was not arbitrary and capricious
because it included adequate explanation and support for its
determinations. The panel also held the record supported the
BiOp’s conclusions regarding the indirect effects of project
operations. The panel disagreed with the district court’s
determination that the FWS’s own regulations and the
Administrative Procedure Act required the FWS to explain
that the reasonable and prudent alternatives satisfied 50
C.F.R. § 402.02’s non-jeopardy factors. The panel held that
the FWS’s consideration of these factors could be reasonably
discerned from the record to satisfy any explanation

Concerning the cross appeal, the panel held that the FWS
did not violate the ESA by not separating the discretionary
from nondiscretionary actions when it set the environmental
baseline. The panel also held that the Bureau of Reclamation
did not violate the ESA by accepting the 2008 BiOp. The
panel affirmed the district court’s judgment with respect to
the National Environmental Policy Act (“NEPA”) claims, and
held: NEPA does not require the FWS to prepare an
Environmental Impact Statement in conjunction with the
issuance of the BiOp; and the Bureau of Reclamation’s
provisional adoption and implementation of the BiOp
triggered its obligation to comply with NEPA. The panel
affirmed the district court’s order remanding to the Bureau of
Reclamation so that it can complete an Environmental Impact
Statement evaluating the effects of its adoption and
implementation of the BiOp.

Eighth Circuit Judge Arnold dissented from Parts III,
IV.A., IV.B, IV.E, and V.B. of the majority opinion, and
concurred in the rest. Judge Arnold would uphold the district
court’s limited admission of evidence outside the
administrative record as relevant to the Old and Middle River
flow limits and determination of X2, and agreed with the
district court that the FWS’s determination as to the flow
prescription and X2 was arbitrary and capricious. Judge
Arnold disagreed with the basis of the district court’s
conclusion that the non-jeopardy elements must be addressed
in the BiOp or administrative record, but would affirm on the
issue. Finally, Judge Arnold believes the district court should
have found the Bureau of Reclamation independently liable
under the ESA for relying on a legally flawed BiOp.
Judge Rawlinson concurred in the bulk of the majority
opinion, but dissented from Part V.C.2. Judge Rawlinson
disagreed only with the rationale and conclusion that the
Bureau of Reclamation’s adoption and implementation of the
BiOp triggered its obligation to comply with NEPA by
preparing an Environmental Impact Statement that is
generally required under the ESA.

Sep 032014

U.S. District Judge Lawrence O'Neill rejected a request by California irrigators to stop extra flows provided by the Bureau of Reclamation to help prevent a die-off of chinook salmon in the Klamath River (San Luis & Delta-Mendota Water Authority v. Jewell, 13-1232 LJO-GSA, Cal. E.D.).

"[T]he flow augmentation releases are designed to prevent a potentially serious fish die-off from impacting salmon populations entering the Klamath River estuary," O'Neill said in his Aug. 27 order. "There is no dispute -- and the record clearly reflects -- that the 2002 fish kill had severe impacts on commercial fishing interests and tribal fishing rights, and that another fish kill would likely have similar impacts."

The judge issued a similar ruling last year, when the same groups sought to stop increased flows to protect the fish.

"The Court finds that, although Reclamation has not presented an entirely consistent approach to determining the need for [Flow Augmentation Releases], the circumstances justify the planned 2014 FARs as a measure needed to prevent a fish kill that could significantly impact this year’s fall-run Chinook in the lower Klamath."

Biologists' principal concern is that the low water levels make the fish more susceptible to an epizootic outbreak of Ich, a fresh-water ciliated protozoan parasite.

In his conclusion, the judge wrote:

The Court concludes that, even though Plaintiffs are likely to (and in all likelihood soon will) succeed on the merits of at least one of their claims against Reclamation in connection with the 2013 FARs, the balance of the harms does not warrant an injunction at this time. Even if the Court were prepared immediately to issue a final ruling on the merits in favor of Plaintiffs, an injunction would not be automatic. The potential harm to the Plaintiffs from the potential, but far from certain, loss of added water supply in 2015 does not outweigh the potentially catastrophic damage that “more likely than not” will occur to this year’s salmon runs in the absence of the 2014 FARs.

In a "Note," he added:

Federal Defendants are hereby on notice that the Court will view future FARs (and requests to enjoin them) in light of all the circumstances, including the fact that Federal Defendants repeatedly have treated as “emergency” circumstances that appear to merit a consistent, reasoned, policy rationale. All involved deserve a reasonable opportunity to challenge any such rationale, and all interested, including the Court, deserve to be able to give to these issues “the time and attention [they] deserve.” San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 606 (9th Cir. 2014). Failure to heed this notice may disappoint Defendants in future orders.

Coverage (scroll over for hed)

Eureka Times-Standard (Jeff Barnard, AP, and Will Houston, Times-Standard) (8/27)

Bay Area Indy Media (Dan Bacher) (8/28)

May 232012

Click the button for audio of the teleconference with Interior Secretary Ken Salazar
and Assistant Secretary for Water and Science Anne Castle. (Give the file a few seconds to load.)

Press release (reprinted below)

Final FONSI (for high-flow experimental releases) and more documents

Final FONSI (for non-native fish control) and more documents

Salazar Announces Improvements to Glen Canyon Dam Operations
to Restore High Flows and Native Fish in Grand Canyon

Adaptive management strategy meets water and power supply needs


Contact: Adam Fetcher (DOI) 202-208-2416, Lisa Iams (Reclamation) 801-524-3673

WASHINGTON – Secretary of the Interior Ken Salazar announced today that, as part of the Interior’s Glen Canyon Dam Adaptive Management Program, and in cooperation with five Interior agencies, the Bureau of Reclamation is approving two long-term research and experimental programs of high-flow releases and native fish protection to preserve and improve the Grand Canyon and its resources. Together, these decisions represent the most important experimental modification of operations of Arizona’s Glen Canyon Dam in over sixteen years.

The two programs authorize changes in flow releases from the dam to meet water and power needs, but also to allow better conservation of sediment downstream, more targeted efforts to control non-native fish predation, and continued scientific experimentation, data collection, and monitoring to better address the important resources in the Colorado River below Glen Canyon Dam.

“We’ve gained tremendous knowledge about the unique resources of the Grand Canyon in the Colorado River downstream of Glen Canyon Dam over the past sixteen years,” said Secretary Salazar. “Today’s decisions constitute a milestone in the history of the Colorado River and will provide a scientific foundation to improve future operations to benefit resources in the Grand Canyon, as well as the millions of Americans who rely on the river for water and power.”

The first program establishes a long-term protocol for testing high-flow releases from Glen Canyon dam to determine whether multiple high flow events can be used to rebuild and conserve sandbars, beaches, and associated backwater habitats that have been destroyed or lost over the years of the dam’s construction and operation. The experimental protocol will simulate natural flood conditions in order to provide key wildlife habitat, potentially reduce erosion of archaeological sites, enhance riparian vegetation, maintain or increase camping opportunities, and improve the wilderness experience along the Colorado River in Grand Canyon National Park. The protocol is designed to take full advantage of sediment provided by tributaries of the Colorado River as a result of rainstorms and monsoons.

The protocol for high-flow experimental releases applies scientific information gained in previous high flow releases in 1996, 2004, and 2008 and provides the necessary, flexible framework to conduct further experimental releases through 2020 to determine the optimal timing, duration, frequency, and conditions that will maximize ecological and riparian benefits downstream in the Grand Canyon. For more information on the program, click here.

The second program outlines a series of actions and research to control non-native fish and protect endangered native fish in the Colorado River below Glen Canyon Dam. Conservation of native fish, particularly the endangered humpback chub, will be enhanced by reducing the threat of predation and competition from non-native fish and improving critical habitat. The actions will also ensure continued compliance with the Endangered Species Act and a Final Biological Opinion issued by the U.S. Fish and Wildlife Service in 2011. Extensive government-to-government tribal consultations and analyses were conducted to ensure the required non-native fish control actions can be implemented in a way that respects tribal perspectives. For more information on the program, click here.

“Implementation of these two programs marks a huge step forward in integrating the management of a dam that’s critical to the delivery of water and power to millions of people in the Southwest with better conservation of the incredible values of the Grand Canyon,” said Assistant Secretary for Water and Science Anne Castle. “We are refining our operations to reflect what we’ve learned and address the concerns expressed by several Native American tribes about the management of fish at locations honored as sacred sites by many of the tribes and pueblos.”

The actions outlined in both detailed Environmental Assessments completed today include important scientific research and monitoring components that are fundamental to the adaptive management process. Reclamation has primary responsibility for operation of Glen Canyon Dam and the National Park Service has primary responsibility for Grand Canyon National Park and Glen Canyon National Recreation Area.

"The National Park Service is a strong supporter of high flow tests to help determine how best to rebuild and sustain the beaches and sand bars below Glen Canyon Dam. We appreciate the extensive collaboration required to develop these research programs which are critical to preserving the awesome resources and visitor experience along the Colorado River in Grand Canyon National Park," said Jonathan B. Jarvis, Director of the National Park Service.

Today’s actions represent the most comprehensive experiment for protection of the Grand Canyon since Secretary of the Interior Bruce Babbitt signed a Record of Decision in 1996 and conducted the first high flow release. The experiments will help answer critical questions about the complex interactions between dam releases and resource responses, and also advance the goal of the Grand Canyon Protection Act to improve resource conditions.



Glen Canyon Dam High-Flow Experiments Provide Insights for Future Flow Management of the Colorado River (2/8/11)