Friends of The River v. National Marine Fisheries Service et al

MOTION for SUMMARY JUDGMENT

E.D. Cal.May 12, 2017

Plts. MSJ Motion and Notice of Motion 1 Case No. 2:16-cv-00818-JAM-EFB 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 Christopher A. Sproul (Bar No. 126398) Environmental Advocates 5135 Anza Street San Francisco, California 94121 Telephone: (415) 533-3376 Facsimile: (415) 358-5695 Email: csproul@enviroadvocates.com Patricia Weisselberg (Bar No. 253015) Law Office of Patricia Weisselberg 115 Oakdale Avenue Mill Valley, CA 94941 Telephone: (415) 388-2303 Email: pweisselberg@wans.net Attorneys for Plaintiff FRIENDS OF THE RIVER UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRIENDS OF THE RIVER, a non-profit corporation, Plaintiff, v. NATIONAL MARINE FISHERIES SERVICE, et al., Defendants. Case No. 2:16-cv-00818-JAM-EFB PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND NOTICE OF MOTION Case 2:16-cv-00818-JAM-EFB Document 33 Filed 05/12/17 Page 1 of 2 Plts. MSJ Motion and Notice of Motion 2 Case No. 2:16-cv-00818-JAM-EFB 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 NOTICE OF MOTION PLEASE TAKE NOTICE that Plaintiff Friends of the River ("FOR") hereby moves for summary judgment on its claims under the Endangered Species Act ("ESA") and Administrative Procedure Act ("APA") pursuant to Rules 7(b) and 56 of the Federal Rules of Civil Procedure and Local Rule 260. Pursuant to the Standing Order of U.S. District Court Judge John Mendez, FOR it is not noticing a hearing for this motion. A hearing, if any, will be set pursuant to subsequent order of the Court. By this Motion, FOR requests the relief sought in Plaintiff’s Proposed Order concerning certain actions and decisions of the U.S. Army Corps of Engineers (“the Corps”) and the National Marine Fisheries Service ("NMFS") undertaken or issued in violation of the ESA. Date: May 12, 2017 Respectfully submitted, Christopher Sproul Attorney for Plaintiff Case 2:16-cv-00818-JAM-EFB Document 33 Filed 05/12/17 Page 2 of 2 P's MOTION FOR SUMMARY JUDGMENT 2:16-CV-00818-JAM-EFB 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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRIENDS OF THE RIVER, a non-profit corporation, Plaintiff, v. NATIONAL MARINE FISHERIES SERVICE, et al., Defendants. Case No. 2:16-cv-00818-JAM-EFB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Christopher Sproul (Bar No. 126398) Environmental Advocates 5135 Anza Street San Francisco, California 94121 Telephone: (415) 533-3376 Facsimile: (415) 358-5695 Email: csproul@enviroadvocates.com Patricia Weisselberg (Bar No. 253015) Law Office of Patricia Weisselberg 115 Oakdale Avenue Mill Valley, CA 94941 Telephone: (415) 388-2303 Email: pweisselberg@wans.net Attorneys for Plaintiff FRIENDS OF THE RIVER Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 1 of 34 P's MOTION FOR SUMMARY JUDGMENT i 2:16-CV-00818-JAM-EFB 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 TABLE OF CONTENTS I. INTRODUCTION .....................................................................................................................1 II. STATUTORY BACKGROUND ..............................................................................................1 III. STATEMENT OF FACTS ........................................................................................................2 A. First Corps-NMFS ESA § 7 Consultation. ...........................................................................7 B. Second Corps-NMFS ESA § 7 Consultation. .......................................................................7 C. Third Corps-NMFS ESA § 7 Consultation. ..........................................................................8 D. Fourth Corps-NMFS ESA § 7 Consultation. ........................................................................8 E. Fifth Corps-NMFS ESA § 7 Consultation.............................................................................9 IV. ARGUMENT ...........................................................................................................................10 A. The Corps Has Violated Its ESA § 7 Consultation Duty. ...................................................10 1. The Corps’ Failure To Consult over the Dams Violates ESA § 7. ..........................10 2. The Corps' Failure to Consult over the Licensed Facilities Violates ESA § 7. ......12 B. The 2013 Englebright BA, LOC, and 2014 BiOp Are Arbitrary and Capricious. ..............14 C. The Corps Has Violated Its ESA § 7 Substantive Duty. .....................................................15 D. The Corps Is Liable under ESA § 9 for Taking the Listed Species. ...................................16 1. The Dams Are Causing "Harm" to the Listed Species. ..........................................18 2. The Dams Are Harassing or Trapping the Listed Species. ......................................20 3. The Corps Is Liable for Take Caused by the Powerhouses and Cordua Diversion. 21 E. The Corps and NMFS Must Reinitiate ESA § 7 Consultation. ...........................................22 F. Friends of the River Has Standing. ......................................................................................24 V. CONCLUSION ........................................................................................................................25 Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 2 of 34 P's MOTION FOR SUMMARY JUDGMENT ii 2:16-CV-00818-JAM-EFB 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 TABLE OF AUTHORITIES Cases Alcaraz v. Vece, 14 Cal.4th 1149 (1997) ............................................................................................................20 Alliance for the Wild Rockies v. United States Dep't of Agric., 772 F.3d 592 (9th Cir. 2014) ...................................................................................................17 Animal Prot. Inst. v. Holsten, 541 F. Supp. 2d 1073 (D. Minn. 2008) ....................................................................................22 Animal Welfare Inst. v. Martin, 588 F. Supp. 2d 70 (D. Me. 2008) ...........................................................................................21 Anim. Welfare Inst. v. Martin, 623 F.3d 19 (1st Cir. 2010) ......................................................................................................22 Ariz. Cattle Growers’ Ass’n v. U.S. FWS, 273 F.3d 1229 (9th Cir. 2001) .................................................................................................17 Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995) ...............................................................................................16, 17, 20, 21 Bailey v. United States, 623 F.3d 855 (9th Cir. 2010). ....................................................................................................3 Bigbee v. Pacific Tel. & Tel. Co., 34 Cal. 3d 49 (1983) ................................................................................................................20 Cantrell v. City of Long Beach, 241 F.3d 674 (9th Cir. 2001) ...................................................................................................25 Cascadia Wildlands v. Kitzhaber, 911 F. Supp. 2d 1075 (D. Or. 2012) ..................................................................................18, 21 City of Mt. Park v. Lakeside at Ansley, LLC, 560 F. Supp. 2d 1288 (N.D. Ga. 2008) ....................................................................................20 Committee To Save Mokelumne River v. EBMUD, 13 F.3d 305 (9th Cir. 1993) .....................................................................................................20 Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 3 of 34 P's MOTION FOR SUMMARY JUDGMENT iii 2:16-CV-00818-JAM-EFB 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 Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988) .................................................................................................14 Cottonwood Envtl. Law Ctr. v. U.S. Forest Service, 789 F.3d 1075 (9th Cir. 2015) .................................................................................................12 Coeur Alaska, Inc. v. Se. Alaska Conserv. Council, 557 U.S. 261 (2009) .................................................................................................................19 Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt, 698 F.3d 1101 (9th Cir. 2012) .................................................................................................16 Defenders of Wildlife v. EPA, 882 F.2d 1294 (8th Cir. 1989) .................................................................................................22 Defenders of Wildlife v. Martin, No. 05-248, 2007, U.S. Dist. LEXIS 13061 (E.D. Wash. Feb. 26, 2007) .........................17, 18 Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781 (9th Cir. 1995). ........................................................................................16, 17, 19 Friends of the Earth, Inc. v. Laidlaw Environmental Servs. (TOC), Inc., 528 U.S. 167 (2000) .................................................................................................................25 Greenlaw v. U.S., 554 U.S. 237 (2008) .................................................................................................................20 Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006 (9th Cir. 2012) .....................................................................................10, 12, 14 League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Connaughton, No. 12-02271, 2013 WL3776305 (July 17, 2013) ...................................................................14 Loggerhead Turtle v. Cnty. Council of Volusia Cnty., Fla., 148 F.3d 1231 (11th Cir. 1998) ...............................................................................................22 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .................................................................................................................25 Murrelet v. Pacific Lumber Co., 83 F.3d 1060 (9th Cir. 1996) .............................................................................................17, 21 Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 4 of 34 P's MOTION FOR SUMMARY JUDGMENT iv 2:16-CV-00818-JAM-EFB 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 National Parks Conservation Ass'n v. Jewell, 62 F. Supp. 3d 7 (D.D.C. 2014) ...............................................................................................15 Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 422 F.3d 782 (9th Cir. 2005) ...................................................................................................25 Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 481 F.3d 1224, 1233-1234 (9th Cir. 2007) ..............................................................................14 Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917 (9th Cir. 2008) ("NWF") ..................................................................11, 12, 14, 15 Nat'l Wildlife Fed'n v. NMFS, 254 F. Supp. 2d 1196 (D. Or. 2003) ..................................................................................15, 16 Native Ecosystems v. Krueger, 946 F. Supp. 2d 1060 (D. Mont. 2013) ....................................................................................13 NRDC v. Jewell, 749 F.3d 776 (9th Cir. 2014) ...................................................................................................10 Or. Natural Desert Ass'n v. Tidwell, 716 F. Supp. 2d 982 (D. Or. 2010) ....................................................................................17, 18 Oregon Wild v. U.S. Forest Service, 193 F. Supp. 3d 1156 (D. Or. 2016). .......................................................................................14 Organized Village of Kake v. USDA, 795 F.3d 956 (9th Cir. 2015) .............................................................................................14, 15 Our Children's Earth v. Stanford, No. 13-00402, 2015 U.S. Dist. LEXIS 176517 (N.D. Cal. Dec. 11, 2015) .............................19 Pac. Rivers v. Brown, No. 02-243, 2002 U.S. Dist. LEXIS 28121 (D. Or. Dec. 23, 2002) ........................................18 Pacificans For A Scenic Coast v. CalTrans, No. 15-02090, 2016 U.S. Dist. LEXIS 55672 (N.D. Cal April 25, 2016) .................................3 Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir. 1994) ...................................................................................................12 Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 5 of 34 P's MOTION FOR SUMMARY JUDGMENT v 2:16-CV-00818-JAM-EFB 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 Palila v. Hawaii Dep’t of Land & Natural Resources, 639 F.2d 491 (9th Cir. 1981) ....................................................................................................17 Palila v. Hawaii Dep't of Land & Natural Resources, 852 F.2d 1106 (9th Cir. 1988) .................................................................................................21 Paulsen v. Daniels, 413 F.3d 999 (9th Cir. 2005) ...................................................................................................15 Pyramid Lake Paiute Tribe of Indians v. United States Dep't of Navy, 898 F.2d 1410 (9th Cir. 1990) ................................................................................................16 Resources Ltd. v. Robertson, 35 F.3d 1300 (9th Cir. 1994) ...................................................................................................16 Rowland v. Christian, 69 Cal. 2d 108 (1968) ..............................................................................................................20 Salmon Spawning and Recovery Alliance v. Gutierrez, 545 F.3d 1220 (9th Cir. 2008) ...........................................................................................22, 25 San Francisco BayKeeper v. Whitman, 297 F.3d 877 (9th Cir. 2002) .....................................................................................................3 San Luis & Delta-Mendota Water Authority v. Jewell, 747 F.3d 581 (9th Cir. 2014) .......................................................................................11, 14, 16 Sasser v. EPA, 990 F.2d 127 (4th Cir. 1993) ...................................................................................................20 Seattle Audubon Soc'y v. Sutherland, No. 06-1608, 2007 U.S. Dist. LEXIS 31880 (W.D. Wash. May 2, 2007) ..............................22 Sierra Club v. Abston Const. Co., Inc., 620 F.2d 41 (5th Cir. 1980) .....................................................................................................20 Sierra Club v. Lyng, 694 F. Supp. 1260 (E.D. Tex. 1988) ........................................................................................18 Sierra Club v. Marsh, 816 F.2d 1376 (9th Cir. 1987) .................................................................................................25 Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 6 of 34 P's MOTION FOR SUMMARY JUDGMENT vi 2:16-CV-00818-JAM-EFB 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 Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991) .............................................................................................18, 22 Sprecher v. Adamson Companies, 30 Cal. 3d 358 (1981) ..............................................................................................................20 Strahan v. Coxe, 127 F.3d 155 (1st. Cir. 1997) ...................................................................................................22 Strahan v. Holmes, 595 F. Supp. 2d 161 (D. Mass. 2009) ......................................................................................21 Strahan v. Roughead, 910 F. Supp. 2d 358 (D. Mass. 2012) ......................................................................................21 Swinomish Indian Tribal Cmty. v. Skagit County Dike Dist., 618 F. Supp. 2d 1262 (W.D. Wash. 2008) ...................................................................17, 18, 20 S. Yuba River Citizens League v. NMFS, 629 F. Supp. 2d 1123 (E.D. Cal. 2009) (“SYRCL I") ...............................................................19 S. Yuba River Citizens League v. NMFS, 723 F. Supp. 2d 1247 (E.D. Cal. 2010) ("SYRCL II") .............................1, 3, 5, 7, 8, 10, 19, 24 S. Yuba River Citizens League v. NMFS, No. S-06-2845, 2010 U.S. Dist. LEXIS 125403 (E.D. Cal. Nov. 16, 2010) (“SYRCL III"). ............................................................................................................................1 S. Yuba River Citizens League v. NMFS, No. 06-2845, 2011 U.S. Dist. LEXIS 49164 (April 28, 2011) ("SYRCL IV") ...........................1 S. Yuba River Citizens League v. NMFS, 804 F. Supp. 2d 1045 (E.D. Cal. 2011) ("SYRCL V") ......................................................1, 5, 25 S. Yuba River Citizens League v. NMFS, No. 13-00059, 2013 U.S. Dist. LEXIS 114477 (E.D. Cal. Aug. 13, 2013) .............................15 Turtle Island Restoration Network v. NMFS, 340 F.3d 969 (9th Cir. 2003) ...................................................................................................12 TVA v. Hill, Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 7 of 34 P's MOTION FOR SUMMARY JUDGMENT vii 2:16-CV-00818-JAM-EFB 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 28 437 U.S. 153 (1978) .............................................................................................................2, 19 United States v. Town of Plymouth, 6 F. Supp. 2d. 81 (D. Mass. 1998) ...........................................................................................22 U.S. v. Earth Sciences, Inc., 599 F.2d 368 (10th Cir. 1979) .................................................................................................20 W. Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2011) ...............................................................................................3, 13 Wash. Toxics Coal. v. EPA, 413 F.3d 1024 (9th Cir. 2005) .....................................................................................12, 13, 14 Wild Fish Conservancy v. Salazar, 628 F.3d 513 (9th Cir. 2010) ..................................................................................................15 Wilson v. City of New Bedford, 108 Mass. 261 (1871) ..............................................................................................................20 Statutes 5 U.S.C. § 706(2)(A)............................................................................................................................14 16 U.S.C. § 662. .....................................................................................................................................3 16 U.S.C. § 1531(b) ...............................................................................................................................2 16 U.S.C. § 1532(19). ............................................................................................................................2 16 U.S.C. § 1536(a)(2) .....................................................................................................................2, 10 16 U.S.C. § 1536(b)(3) ..........................................................................................................................2 16 U.S.C. § 1536(b)(3)(A) .....................................................................................................................2 16 U.S.C. § 1536(b)(4) ..........................................................................................................................2 16 U.S.C. § 1536(c) ...............................................................................................................................2 16 U.S.C. § 1538(a)(1)(B) .....................................................................................................................2 33 U.S.C. § 661 ......................................................................................................................................3 33 U.S.C. §§ 664, 685 ..........................................................................................................................11 33 U.S.C. §§ 683, 684 ..........................................................................................................................11 33 U.S.C. § 1311(a) .............................................................................................................................20 Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 8 of 34 P's MOTION FOR SUMMARY JUDGMENT viii 2:16-CV-00818-JAM- EFB 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 33 U.S.C. §§ 2309(a), 2283(b)(1) ........................................................................................................11 33 U.S.C. § 2316. .................................................................................................................................11 33 U.S.C. § 2330(a) .............................................................................................................................12 Administrative Regulations 50 C.F.R. § 17.3 ...................................................................................................................................21 50 C.F.R. § 222.102 .................................................................................................................17, 18, 20 50 C.F.R. § 402.01(b) ............................................................................................................................2 50 C.F.R. § 402.02 .........................................................................................................................10, 15 50 C.F.R. § 402.03 .........................................................................................................................10, 15 50 C.F.R. § 402.12 .................................................................................................................................2 50 C.F.R. § 402.13 .............................................................................................................................2, 9 50 C.F.R. § 402.14. ................................................................................................................................2 50 C.F.R. § 402.16(b) ..........................................................................................................................22 50 C.F.R. § 402.16(c)...........................................................................................................................23 50 C.F.R. § 223.203 ...............................................................................................................................2 64 Fed. Reg. 60,727 (Nov. 8, 1999).........................................................................................18, 19, 20 71 Fed. Reg. 834 (Jan. 5, 2006) ...........................................................................................................19 71 Fed. Reg. 17757 (April 7, 2006) .......................................................................................................8 80 Fed. Reg. 26832 (May 11, 2015) ....................................................................................................17 Other Authorities Fed. R. Civ. P. 56(a) ..............................................................................................................................1 Energy and Water Development Appropriations Act of 2014, Division D of Public Law 113-76 .....12 Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 9 of 34 P's MOTION FOR SUMMARY JUDGMENT 1 2:16-CV-00818-JAM-EFB 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. INTRODUCTION The Yuba River’s threatened fish are in crisis. Thousands of spring-run Chinook salmon and steelhead, listed as protected species under the Endangered Species Act ("ESA"), used to return yearly to spawn in the river; in the last year fewer than 200 spring Chinook returned and less than 40 adult steelhead did. Reedy Decl. ¶¶ 18, 20, 24. Green sturgeon, another ESA-listed fish in the Yuba, is also in dire condition. Two dams owned, operated and maintained by the Army Corps of Engineers ("Corps") and Corps-licensed power plants and water diversions are the primary cause of these species’ decline in the Yuba River. Due to litigation by Friends of the River ("FOR") and other groups, the Corps has used its discretionary authority to implement a few measures to benefit these fish. However, these measures have fallen far short and have not benefitted the sturgeon at all. A 2012 National Marine Fisheries Service ("NMFS") biological opinion found that the Corps' actions were likely jeopardizing these three species’ survival and recovery and required major changes from the Corps. But the Corps refused to implement most of NMFS’s directives, wrongly contending it lacked the authority to do so. Apparently bowing to outside pressure rather than reasoned reconsideration, NMFS reversed course in a 2014 biological opinion and letter of concurrence that effectively acquiesced in the Corps’ unlawful determination that it need not engage in ESA § 7 consultation concerning the dams and its Yuba River licenses. Summary judgment is proper under Fed. R. Civ. P. 56(a) declaring the Corps and NMFS in violation of procedural ESA § 7 consultation duties and declaring the Corps’ 2013 biological assessment and the 2014 biological opinion arbitrary and capricious. See S. Yuba River Citizens League v. NMFS, 723 F. Supp. 2d 1247 (E.D. Cal. 2010) ("SYRCL II") (invalidating prior NMFS biological opinion). Summary judgment is further proper finding the Corps in violation of substantive ESA § 7 duties not to jeopardize the fish and ESA § 9’s prohibition on taking the species. The Corps and NMFS should further be ordered to complete a new consultation by a date certain and the Corps should be enjoined to implement interim protective measures. SYRCL v. NMFS, No. 06-2845, 2011 U.S. Dist. LEXIS 49164, at *6-*13 (April 28, 2011) ("SYRCL IV") (ordering completion of new biological opinion by date certain), 804 F. Supp. 2d 1045, 1057-1067 (E.D. Cal. 2011) ("SYRCL V") (requiring interim protective measures). II. STATUTORY BACKGROUND Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 10 of 34 P's MOTION FOR SUMMARY JUDGMENT 2 2:16-CV-00818-JAM-EFB 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 plain intent of Congress in enacting the ESA was "to halt and reverse the trend toward species extinction, whatever the cost.” TVA v. Hill, 437 U.S. 153, 184 (1978). The ESA provides "a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved” and to provide a program for the conservation of such species. 16 U.S.C. § 1531(b). To achieve these goals, the ESA makes it unlawful for any person “to take” listed endangered or threatened species, i.e., to “kill," "harm," "trap," or "harass" the species. ESA §§ 9(a)(1)(B), 3(19); 16 U.S.C. §§ 1538(a)(1)(B), 1532(19). Additionally, ESA § 7(a)(2), inter alia, requires Federal agencies to insure that their actions are not likely to jeopardize the survival of a protected species or cause destruction or adverse modification of a species’ designated critical habitat. 16 U.S.C. § 1536(a)(2). To comply with these mandates, Federal agencies ("action agencies") must consult with NMFS before undertaking any action which is likely to result in adverse effects to ESA-listed marine or anadromous species, or which will cause destruction or adverse modification of such species’ critical habitat, using the best scientific and commercial data available. 16 U.S.C. § 1536(a)(2); 50 C.F.R. §§ 402.01(b), 223.203. To assist this consultation, action agencies must provide NMFS with a biological assessment outlining the action and the effects of that action on the species. 16 U.S.C. § 1536(c); 50 C.F.R. § 402.12. For actions that are not likely to adversely affect listed species, the action agency and NMFS can conduct "informal consultation," which concludes with a written concurrence letter from NMFS that the action is unlikely to have such adverse impacts. 50 C.F.R. § 402.13. For actions that are likely to have such adverse impacts, formal consultation is required, which concludes when NMFS issues a “biological opinion” indicating whether the action will cause species jeopardy or adversely modify critical habitat. 16 U.S.C. § 1536(b)(3); 50 C.F.R. § 402.14. If NMFS so finds, it will identify any “reasonable and prudent alternatives” (“RPAs”) that it concludes would avoid such species jeopardy or adverse habitat modification. 16 U.S.C. § 1536(b)(3)(A). If the action or RPAs will take a listed species, but not cause species jeopardy or adverse habitat modification, then NMFS may issue an Incidental Take Statement (“ITS”) allowing that take providing certain conditions are met. 16 U.S.C. § 1536(b)(4). Taking a listed species without complying with an ITS constitutes violation of ESA § 9. III. STATEMENT OF FACTS This lawsuit, like FOR’s prior ESA citizen suit against NMFS and the Corps, concerns Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 11 of 34 P's MOTION FOR SUMMARY JUDGMENT 3 2:16-CV-00818-JAM-EFB 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 "operations associated with Englebright and Daguerre Point Dams on the Yuba River in Yuba and Nevada Counties, CA" and the Corps' "issuance of permits, licenses and easements to non-Federal entities for their operations of water diversions and hydroelectric facilities at or near the dams" ("the Action"). SYRCL II, 723 F. Supp. 2d at 1253 (quoting from NMFS biological opinion description of the Corps "action" for purposes of ESA § 7 consultation). Pursuant to the 1893 Act To Create The California Debris Commission and Regulate Hydraulic Mining In The State Of California ("1893 Act"), the Corps built Daguerre Point Dam ("Daguerre") in 1906 on land owned then and now by the Corps.1 C4053-54; C29455.2 Also pursuant to the 1893 Act and the 1935 Rivers and Harbors Act ("1935 Act"), the Corps constructed Englebright Dam ("Englebright") in 1941 on Corps land.3 C4076. Englebright is 260 feet tall and is located on the Yuba River 12 miles upstream of Daguerre. C29455. Englebright impounds Englebright Reservoir. Id. Daguerre is 575 feet long, 25 feet tall, and is located approximately 11.4 miles upstream of the confluence of the Yuba and Feather Rivers.4 C29455-46. Pursuant to its authority under the 1893 and 1935 Acts, the Corps inspects, maintains, and repairs Englebright and Daguerre (collectively, "the Dams") to ensure their continued safe condition. C4074. Englebright provides the head for two hydroelectric power plants: Pacific Gas and Electric 1 The 1893 Act created the California Debris Commission, a three-member commission consisting of officers of the Corps and United States Army. This commission approved and directed Corps construction of Daguerre and Englebright Dams. The California Debris Commission was abolished in 1986 by Pub. L. 99-662, title XI, § 1106. That law transferred the commission's authority to the Secretary of the Army. See 33 U.S.C. § 661 and accompanying notes. 2 References to the Corps administrative record are referred to as “C[page].” References to the NMFS administrative record are referred to as “N[page].” 3 The Fish and Wildlife Coordination Act of 1934 required the Corps to consult with the Fisheries Service prior to constructing Englebright so that the dam's adverse effects on fish and wildlife would be minimized. See 16 U.S.C. § 662. There is no record that the Corps ever so consulted. C29666. 4 Daguerre is a submerged dam not visible to boaters upstream. Bailey v. United States, 623 F.3d 855, 858 n.1 (9th Cir. 2010). Three people have drowned at Daguerre in the past 12 years. Id.; see also Weisselberg Decl., Ex. 24. FOR’s claims that the Corps has failed to act by not consulting as required under ESA § 7 and taken species in violation of ESA § 9 are not limited to the administrative record. W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 497 (9th Cir. 2011); San Francisco BayKeeper v. Whitman, 297 F.3d 877, 886 (9th Cir. 2002); Pacificans For A Scenic Coast v. CalTrans, No. 15-02090, 2016 U.S. Dist. LEXIS 55672, at *2 (N.D. Cal April 25, 2016). Thus, the documents FOR seeks to introduce that the Federal Defendants did not add to the administrative record and the Reedy Decl. are admissible even if they are not part of that record. Alternatively, documents should be added to the administrative record if they are NMFS and/or Corps documents. Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 12 of 34 P's MOTION FOR SUMMARY JUDGMENT 4 2:16-CV-00818-JAM-EFB 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 Company ("PG&E")’s Narrows 1 and Yuba County Water Agency ("YCWA")’s Narrows 2. C29462. The only way to pass river flow from Englebright Reservoir downstream is to discharge water through Narrows 1 and 2, unless water spills over the top of the dam. C29455. Pursuant to its discretionary authority granted in the 1893 Act, 1935 Act, and a 1938 amendment to the 1893 Act (codified at 33 U.S.C. § 683) ("1938 Act"), the Corps granted licenses and easements to PG&E and YCWA to build and operate Narrows 1 and 2. The Corps issued PG&E an easement and license for Narrows 1 on March 19, 1944 ("1944 Narrows 1 License"). C289, C304-310. Narrows 1 is directly connected to Englebright Dam's outlet works. Id. The 1944 Narrows 1 License and easement expired and was renewed on March 28, 1994. C289, C299. On February 14, 1966, the Corps entered into a contract ("1966 Agreement") with YCWA for the use of Englebright Dam and Reservoir for power generation at Narrows 2. C42688. The 1966 Agreement extended through the term of the Federal Energy Regulatory Commission ("FERC") license for Narrows 2. C42694-95. Both the FERC and Corps licenses for Narrows 2 expired on April 30, 2016. C4098. Since then, FERC and the Corps have been renewing their respective Narrows 2 licenses for temporary 1 year terms. Id. The Corps intends to renew its Narrows 2 license on a long term basis when FERC's licensing renewal is completed. C4096. On August 14, 1967, the Corps issued a 50 year easement to YCWA for a right of way for the construction, operation, and maintenance of Narrows 2. C42716. The easement expires on August 14, 2017. Id. The Corps also issued YCWA a license in 1985 to operate a water diversion located on Corps land near Daguerre known as the "Brophy Diversion" and a license to the Hallwood-Cordua Irrigation District ("Cordua") to operate a water diversion ("Cordua Diversion"), which is attached to the Daguerre superstructure. C13644; C207-211; C312-327. As repeatedly documented by NMFS biological opinions, Corps biological assessments and other agency documents and as found in SYRCL II, the Dams cause significant harm to three ESA-listed fish species: the Evolutionarily Significant Unit (“ESU”) of Central Valley Spring-run Chinook Salmon (“Spring Chinook”); the Distinct Population Segment of Central Valley steelhead (“Steelhead”); and the Southern Distinct Population Segment of North American Green Sturgeon (“Green Sturgeon”) (collectively the “Listed Species”). Narrows 1, Narrows 2, the Brophy Diversion, and the Cordua Diversion (collectively, “the Licensed Facilities") also significantly harm Spring Chinook and Steelhead. Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 13 of 34 P's MOTION FOR SUMMARY JUDGMENT 5 2:16-CV-00818-JAM-EFB 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 SYRCL II, 723 F. Supp. 2d at 1258-63; SYRCL V, 804 F. Supp. 2d at 1055-67. Specifically, the Dams and Licensed Facilities harm the Listed Species as follows: (1), Englebright entirely blocks Spring Chinook and Steelhead from migrating to historic upstream habitat, harming these fish both by limiting their accessible habitat and harming Spring Chinook by forcing their overlapping use of spawning areas below Englebright with Fall-run Chinook, resulting in hybridization, loss of Spring Chinook genetic traits, and reduced viability of Spring Chinook eggs. C29595; C29610. (2), Daguerre entirely blocks Green Sturgeon from migrating to suitable spawning habitat above that dam and thus limits these fish to areas in the Yuba River unsuitable for them to spawn. C29596. (3), Daguerre’s fish ladders are poorly designed and often prevent or delay Spring Chinook and Steelhead from migrating above that dam reducing spawning success for the species. C29595-96. (4), Daguerre injures juvenile Spring Chinook and Steelhead that plunge over the dam’s rough face on downstream migration and further injures adult Spring Chinook and Steelhead that respond to the false migration signal from sheet flow over the dam and attempt to ascend the dam's face. Id. (5), Daguerre creates a pool at the dam’s base where predator fish artificially proliferate and prey upon Spring Chinook and Steelhead. C29605. (6), Englebright traps the downstream transport of cobble/gravel and large woody material ("LWM") necessary for creation of good anadromous fish habitat, leading to decreased spawning and rearing success for Spring Chinook and Steelhead downstream of Englebright. C29598. (7), the Brophy and Cordua Diversions harm Spring Chinook and Steelhead by entraining or impinging outmigrating juveniles and promoting predation. C4220; C29585-86; C29597. (8), Narrows 1 and 2 harm Spring Chinook and Steelhead when their operations cause sudden river flow fluctuations that dewater redds (fish nests), eggs, and pre-emergent fry, strand juvenile and adult fish in isolated pools where they are stressed and often perish, and cause fish to either leap or be blasted onto the riverbank where they die. N3214; N3223-24; Weisselberg Decl., Ex. 1 at 2-10, Ex. 3; Ex. 4 at 4, 6-7; Ex. 6 at 1-8 (cover letter and encl.); Ex. 7 at 1-5, 10-11. Previous NMFS biological opinions and reports document that Narrows 1 and 2 operations have caused fish stranding and redd dewatering since at least 1998 that has continued through 2016 and is likely to continue despite some YCWA remedial measures (installation of a new bypass structure in 2007 to try to prevent sudden drops in river flow when YCWA shuts Narrows 2 down for maintenance or repairs, developing a streambed monitoring plan in 2014, moving "shot rock" and reshaping a gravel Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 14 of 34 P's MOTION FOR SUMMARY JUDGMENT 6 2:16-CV-00818-JAM-EFB 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 bar in 2015 to try to fix a pool on the south bank stranding listed fish, putting a hood on the partial bypass in 2016 to redirect high velocity discharge). Weisselberg Decl., Ex. 2 at 3; Ex. 10 at 4, Ex. 19 at 1. Agency records document fish stranding and/or fish kill incidents resulting from Narrows 2 operations on October 23, 2012; October 25, 2012; October 7, 2013; October 14 and 15, 2014; February 8, 2015; October 19, 2015; October 21, 2015; October 26, 2015; and September 30, 2016. N3214; Weisselberg Decl., Ex. 3, Ex. 4 at 6-7, Ex. 6 at 1-2 (cover letter) & 1-6 (encl.), Ex. 8, Ex. 9, Ex. 11 at 6- 12, Ex. 12, Ex. 13. For example, operational problems caused Narrows 2 to shut down in February 2015 in a fashion that dewatered the entire lower Yuba from Englebright to its confluence with the Feather River for 45 minutes. NMFS believed hundreds, if not thousands of juvenile salmon perished and at least 34 redds were affected. Id., Ex. 7 at 4. YCWA has been less than diligent in reporting Narrows 2 operational events that have caused river flow fluctuations and likely fish strandings, strongly suggesting that more incidences than these have occurred. Id., Ex. 2 at 1, Ex. 3 at 2, Ex. 7 at 2, Ex. 14 at 1. Some of these strandings occurred in pools that form below Englebright that become isolated from the main river channel. YCWA filled in the south bank isolation pool in 2015, but it reformed in 2016, and YCWA has not removed it or two other known isolation pools (the "Dam pool" and "Bypass pool") which still exist and continue to pose stranding hazards. Reedy Decl. ¶ 13; Weisselberg Decl., Ex. 19; Ex. 13. Starting in 2001, the Corps and NMFS have conducted five separate ESA § 7 consultations concerning the Dams and Facilities Licenses which culminated in a series of five NMFS biological opinions and other agency decisions. In part to comply with requirements stemming from these consultations and on its own initiative, the Corps has utilized its broad authority under the 1893 Act and the 1986, 1990, and 1996 Water Resource Development Acts ("WRDAs") to study and/or implement various measures to try to lessen the Dams and Licensed Facilities’ adverse impacts on the Listed Species. The Corps added fish ladders to Daguerre in 1911. C13644. After these fish ladders washed away in floods of 1927-28, the Corps constructed new fish ladders in 1938. C13644-45. The Corps repeatedly reconstructed (or allowed the State to reconstruct) the ladders after they were washed out in floods in 1942, 1949, 1952 and 1964. C13645. The Corps granted Cordua a license to install flashboards on top of Daguerre which increase flows into the fish ladders. C24782. Albeit imperfectly and inconsistently, the Corps has also: routinely cleared debris from the Daguerre fish ladders, overseen Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 15 of 34 P's MOTION FOR SUMMARY JUDGMENT 7 2:16-CV-00818-JAM-EFB 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 Cordua's placement of the Daguerre flashboards, dredged sediment above Daguerre to preserve fish access from the ladder exits to the upstream channel, added gravel and LWM to the river to improve habitat conditions, studied Brophy Diversion improvements, and studied improvements to fish passage past Daguerre and Englebright. C4107; C4111; C4116; C48910-49056; C49158; C52376. A. First Corps-NMFS ESA § 7 Consultation. Responding to a South Yuba River Citizens League ("SYRCL") citizen suit, NMFS requested in 1999 that the Corps initiate ESA § 7 consultation concerning its Yuba River activities. C23031. The Corps initially declined to consult, but ultimately agreed and SYRCL withdrew its lawsuit. Id.; Weisselberg Decl., Ex. 15. The Corps submitted a biological assessment ("2001 BA") to NMFS in February 2001. C23031-32. The BA described the Action as continued operation and maintenance of the Dams, the Corps licenses for the Licensed Facilities, and eight conservation measures including routine clearing of debris from the Daguerre fish ladders, routine dredging of sediment above Daguerre to keep a river channel open from the Daguerre fish ladders, a gravel injection program, and improvements to the Brophy Diversion. C12762; C12771-73; Weisselberg Decl., Ex. 25 at 1-3. The Corps also committed to acting as the lead federal agency for National Environmental Policy Act review of improving fish passage at Daguerre. Weisselberg Decl., Ex. 25 at 1. The 2001 BA considered the adverse effects on Spring Chinook and Steelhead caused by both Englebright and Daguerre’s ongoing existence to be effects of the action. Id. In March 2002, NMFS issued its first biological opinion ("2002 BiOp") for the Action. C23029. Consistent with the 2001 BA, the 2002 BiOp described the Action as the Corps’ continued operation and maintenance of the Dams, the Brophy and Cordua licenses, and the BA’s eight conservation measures. C23033. The 2002 BiOp identified impacts caused by the Dams’ blockage of Spring Chinook and Steelhead passage, power plant flow fluctuations, and water diversions to be effects of the Action. C23056-60. The BiOp concluded the Action would not jeopardize the fishes’ survival or adversely modify their critical habitat. C23029. B. Second Corps-NMFS ESA § 7 Consultation. In 2006, SYRCL and FOR brought suit challenging NMFS’s 2002 BiOp. SYRCL II, 723 F. Supp. 2d at 1254. While SYRCL II was pending, the Corps reinitiated ESA § 7 consultation with a new Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 16 of 34 P's MOTION FOR SUMMARY JUDGMENT 8 2:16-CV-00818-JAM-EFB 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 biological assessment in March 2007 ("2007 BA"). C24796. The 2007 BA described the Action in the same way as the previous BA and BiOp and again described the Dams’ adverse impacts as effects of the Action. C13642-13647. The 2007 BA included a new section discussing Green Sturgeon which NMFS listed as a threatened species in 2006. C13663; 71 Fed. Reg. 17757 (April 7, 2006). In response, NMFS issued an interim one year biological opinion in April 2007 ("April 2007 BiOp") replacing the 2002 BiOp. C24796. The April 2007 BiOp defined the Action as the continuation of Corps operations. C24797-99. The April 2007 BiOp defined the environmental baseline as the past and present impacts to the species, but identified the Dams' future effects to be effects of the Action. C24803. C. Third Corps-NMFS ESA § 7 Consultation. NMFS issued its third biological opinion for the Action in November 2007 ("November 2007 BiOp"), which again described the Action as including the Dams’ future adverse effects on the Listed Species. C24749, C24768. SYRCL and FOR subsequently amended their SYRCL II complaint to add a challenge to the November 2007 BiOp. SYRCL II held the November 2007 BiOp arbitrary and capricious, rejecting the Corps' litigation position that Englebright's blocking of fish migration was not an effect of the Action because "the BiOp itself discussed Englebright's prevention of future migration as part of the analysis of the effects of the action." 723 F. Supp. 2d at 1255-56, 61. D. Fourth Corps-NMFS ESA § 7 Consultation. In response to SYRCL II and IV, the Corps submitted a new BA ("2012 BA") to NMFS on January 27, 2012. Unlike the Corps’ previous BAs, the 2012 BA contended that the Dams’ future adverse effects are part of the environmental baseline rather than effects of the Action. C14185. On February 29, 2012, NMFS issued another biological opinion ("2012 BiOp") to replace the invalidated November 2007 BiOp. C29441. The 2012 BiOp rejected the Corps' new description of the Action and instead continued to include as effects of the Action the impacts caused by the Dams’ ongoing existence. C29620-49. The 2012 BiOp concluded that the Action was likely to jeopardize the Listed Species and adversely modify their critical habitat. C29663. The BiOp included an RPA, which if followed would ensure the Action complied with the Corps' ESA duty to avoid jeopardy. C296664. E. Fifth Corps-NMFS ESA § 7 Consultation. In a series of meetings with NMFS, the Corps, joined by YCWA and PG&E, indicated that it Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 17 of 34 P's MOTION FOR SUMMARY JUDGMENT 9 2:16-CV-00818-JAM-EFB 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 disagreed with the 2012 BiOp and intended not to comply with many RPA measures. C4068-70; C14488; Weisselberg Decl., Ex. 26, Ex. 27. On February 26, 2013, the Corps sent a letter to NMFS requesting reinitiation of consultation. C43422. On October 22, 2013, the Corps sent NMFS two new BAs, one for Englebright ("Englebright BA") and one for Daguerre ("Daguerre BA"). C4032; C43441. The Corps wrote separate biological assessments for each dam because it contended, inaccurately, that the two dams were wholly separate because they had separate authorization and appropriation. C4030. These new BAs contended the Corps' continued maintenance of the Dams are nondiscretionary actions. C4072; C4074. The BAs conceded that Corps "outgrants" to PG&E and YCWA for Narrows 1 and 2, and the Brophy Diversion are discretionary actions, but postponed consultation on the Narrows 1 and 2 and Brophy Diversion licenses to an unknown future date. C4072, C4095-101. Without explanation, the BAs did not address when the Corps would consult over its Cordua license. Id. The Englebright BA (which incorporated the Daguerre BA) described the Corps' discretionary action at Englebright to be primarily the management of Reservoir recreational facilities, not related to the dam, which it concluded is not likely to adversely affect the Listed Species. C43451; C43464-69. The Englebright BA requested only informal consultation under 50 C.F.R. § 402.13(a) concerning these minor activities. C43464. The Daguerre BA described the Corps' discretionary action to be the operation and maintenance of the Daguerre fish ladders, three "protective" conservation measures--removing debris from the fish ladders, managing flashboards on top of Daguerre, managing sediment buildup above the dam, and two "voluntary" conservation measures--gravel augmentation and large wood placement. C4103-04. On May 12, 2014, NMFS issued a letter of concurrence ("LOC") agreeing with the Corps that maintaining Englebright is a nondiscretionary action. C48881. NMFS did not analyze the numerous adverse impacts caused by Englebright's ongoing existence with no fish passage. NMFS only evaluated the effects of Corps maintenance of recreational facilities at Englebright and concurred these activities are not likely to adversely affect the Listed Species. C488897. On the same day, NMFS also issued a new biological opinion ("2014 BiOp") which, reversing NMFS’s positions in its four previous Yuba BiOps, considered nearly all of the ongoing future harms stemming from Daguerre's existence to be part of the environmental baseline, not effects of the Action. C42499. NMFS agreed with defining the Action as the Corps’ operation of, and cleaning of, the Daguerre fish ladders, dredging sediment, placing dam Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 18 of 34 P's MOTION FOR SUMMARY JUDGMENT 10 2:16-CV-00818-JAM-EFB 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 flashboards, and adding gravel and large wood. C42613. NMFS determined these actions, all measures intended to help Spring Chinook and Steelhead, would not jeopardize these fish species. C42637. IV. ARGUMENT A. The Corps Has Violated Its ESA § 7 Consultation Duty. 1. The Corps’ Failure To Consult over the Dams Violates ESA § 7. As noted in the Statement of Facts, the fifth Corps-NMFS ESA § 7 consultation over the Action departed from the agencies' previous four ESA § 7 consultations by defining the Action as excluding the future adverse impacts of the Dams on the Listed Species. The 2013 Englebright and Daguerre BAs defined these impacts as part of the "environmental baseline" that were thus expressly excluded from the definition of the Action. The 2014 BiOp and the LOC accepted this, treated the future impacts of the Dams as part of the "environmental baseline" rather than the Action, and thus neither considered nor imposed any requirements to lessen the Dams’ ongoing impacts. Thus, effectively, the Corps has not sought ESA § 7 consultation concerning maintaining the Dams in violation of its mandatory ESA § 7 duty to consult over any "action" that "may affect" ESA-listed species. 16 U.S.C. § 1536(a)(2); see, e.g., NRDC v. Jewell, 749 F.3d 776, 779 (9th Cir. 2014) (consultation requirement reflects “a conscious decision by Congress to give endangered species priority over the ‘primary missions’ of federal agencies”); Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1028 (9th Cir. 2012) (en banc) ("may affect" standard is low and triggers consultation duty without showing actual species injury); SYRCL II, 723 F. Supp. 2d at 1258-63 (noting Dams and Licensed Facilities’ adverse impacts). "There is 'little doubt' that Congress intended agency action to have a broad definition in the ESA." Karuk, 681 F.3d at 1020. Corps actions requiring consultation are broadly defined as “encompassing all activities or programs of any kind authorized, funded, or carried out, in whole or in part" by the Corps including granting of easements, rights-of-way, or permits, and actions directly or indirectly causing modifications to the land, water, or air which the Corps has discretion to implement in a manner that could benefit ESA listed species. Id. at 1021; 50 C.F.R. §§ 402.02, 402.03. The Dams have caused and are continuing to cause modifications to the land and water and, as explained below, the Corps plainly has discretionary authority to operate, maintain and modify the Dams in a fashion that could benefit the Listed Species. Indeed, it has done so on occasion and certainly has never contended Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 19 of 34 P's MOTION FOR SUMMARY JUDGMENT 11 2:16-CV-00818-JAM-EFB 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 those actions were unlawful. Accordingly, the Corps has a mandatory duty to consult with NMFS over its ongoing operation and maintenance of the Dams. The Corps' maintenance of the Dams is discretionary and subject to ESA consultation because the Corps built, operates and maintains the Dams pursuant to a broad Congressional mandate. Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917, 928-29 (9th Cir. 2008) ("NWF"). An action is only nondiscretionary if a statute directs the agency to take a specific action which makes it impossible to comply with that statute and ESA section 7. Id.; see also San Luis & Delta-Mendota Water Authority v. Jewell, 747 F.3d 581, 639-40 (9th Cir. 2014). The 1893 Act and 1935 Act grant the Corps discretion as to what structures to build in the Yuba, if any, and give the Corps discretion on whether or how to maintain those structures so long as the Corps advances the broad goals of preventing mining debris "from injuring" the Sacramento and San Joaquin Rivers’ "navigable" tributaries. 33 U.S.C. §§ 664, 685; see generally 33 U.S.C. §§ 683, 684; C29666-67. As noted in the Statement of Facts, the Corps utilized its statutory discretion to modify Daguerre by adding fish ladders and approve installation of flash boards on its crest.5 The 1986 WRDA, in § 906 and § 1135, further expressly granted the Corps discretion to modify any of its facilities, including the Dams, and to take other measures to mitigate damages to fish and wildlife resulting from even completed Corps projects to benefit the environment. 33 U.S.C. §§ 2309(a), 2283(b)(1). The Corps has utilized its 1935 Act authority as well as 1986 WRDA § 906(b) authority to implement Yuba River gravel and large wood programs to mitigate the harm caused by Englebright's prevention of the downstream deposition of spawning gravel and LWM. C50961; C51158. The 1990 WRDA mandates that the Corps include environmental protection as a primary mission of the Corps in planning, designing, constructing, operating and maintaining Corps water resources projects. 33 U.S.C. § 2316. The 1996 WRDA further authorizes the Corps to carry out ecosystem restoration projects if the Corps determines the project will improve the quality of the environment, is in the public interest, and is cost effective. 33 U.S.C. § 2330(a). A project 5 The history of Daguerre’s construction further underscores the Corps’ discretion. The California Debris Commission’s original Yuba plan submitted to Congress proposed four small dams and a settling basin. The Rivers and Harbors Act of 1902 approved and appropriated funds to implement this plan. After the first two dams washed away in floods before they were completed, the Corps used its broad discretion to modify the project, without seeking further Congressional authorization. Instead of building the four authorized dams the Corps just built Daguerre. C18717-22. Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 20 of 34 P's MOTION FOR SUMMARY JUDGMENT 12 2:16-CV-00818-JAM-EFB 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 under this section may include removal of a dam. Id. In addition to the statutes above, which apply nationwide, the Energy and Water Development Appropriations Act of 2014, Division D of Public Law 113-76, provided the Corps with specific authority to carry out a Feasibility Study of fish passage improvements at Daguerre and Englebright.6 These circumstances mandate a Corps duty to consult over maintenance of the Dams. See, e.g.; Karuk, 681 F.3d at 1024; NWF, 524 F.3d at 927-29. Notably, agencies have an ongoing consultation duty concerning the ESA-listed species impacts from ongoing program implementation such as the Corps’ ongoing administration of the Dams and its regulation of the Licensed Facilities. Cottonwood Envtl. Law Ctr. v. U.S. Forest Service, 789 F.3d 1075, 1087-88 (9th Cir. 2015); Wash. Toxics Coal. v. EPA, 413 F.3d 1024, 1032-33 (9th Cir. 2005); Turtle Island Restoration Network v. NMFS, 340 F.3d 969, 977 (9th Cir. 2003); Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1054 (9th Cir. 1994). As noted in the Statement of Facts, four NMFS BiOps issued between 2002 and 2012 plus the Corps’ 2001 and 2007 BAs all found the future effects of the Dams to be effects of the Action, i.e., that Corps maintenance of the Dams constituted a discretionary "action" within the meaning of ESA§ 7’s consultation requirement. Notably, when the Corps’ 2012 BA advanced the new contention that maintaining the Dams is not discretionary Corps "action," NMFS’s 2012 BiOp countered with a detailed explanation of why the Corps has the requisite discretionary authority. C29665-68. 2. The Corps' Failure to Consult over the Licensed Facilities Violates ESA § 7. As noted in the Statement of Facts, NMFS's four BiOps issued through 2012 and the 2001 and 2007 BAs all defined the Action as including Corps’ licenses and easements for the Brophy and Cordua diversions. Additionally, the 2001 and 2007 BAs and November 2007 and 2012 BiOps included the Corps' Narrows 1 and 2 licenses and easements in the Action. Without explaining why, the Corps and NMFS departed from years of prior practice in their fifth Yuba consultation. The 2013 Englebright and 6 The November 2007 and 2012 BiOps mandated that the Corps study and implement fish passage past Daguerre and Englebright which prompted the Corps to seek funding from Congress to investigate fish passage alternatives. C50948, C51632; Weisselberg Decl., Ex. 31. Congress appropriated funds for the fish passage reconnaissance study in January 2014. Id., Ex. 32. Shortly after the (May) 2014 BiOp was issued, without a fish passage requirement, the Corps changed the study from fish passage to ecosystem restoration. Id., Ex. 33, 34, 35. It is unknown if any ecosystem restoration project will include any fish passage component since fish passage is no longer mandated in a NMFS biological opinion. C52327. Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 21 of 34 P's MOTION FOR SUMMARY JUDGMENT 13 2:16-CV-00818-JAM-EFB 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 Daguerre BAs, the LOC, and the Daguerre 2014 BiOp collectively deleted the Facilities Licenses from the Action. NMFS's rescission of the 2012 BiOp and issuance of the LOC and Daguerre 2014 BiOp left the Corps without completed ESA § 7 consultation on the Facilities Licenses. When the Corps decided in the 2013 BAs to effectively undo its prior ESA § 7 consultation on the Facilities Licenses and NMFS consummated that decision in issuing the LOC and the Daguerre 2014 BiOp, the Corps commenced ongoing violation of its ESA § 7 procedural duty to consult concerning the Facilities Licenses. The Corps issued and administers the Licenses pursuant to its broad, discretionary authority granted by the 1893 Act and 1935 Act. See 33 U.S.C. § 683. Nothing in the law compels the Corps to issue the Licenses as they are currently framed nor precludes the Corps from utilizing its discretionary authority to include conditions in the Licenses to benefit the Listed Species. As it must, the Corps apparently concedes that issuing and administering the Licenses are discretionary actions subject to ESA § 7 consultation duties, but contends that it may permissibly delay consultation on them.7 This is wrong and must be corrected by consultation forthwith. See, e.g., Wash. Toxics Coal., 413 F.3d at 1030-33. An additional problem with the approach in the 2013 Englebright and Daguerre BAs, the LOC, and the 2014 BiOp is that they impermissibly segment the Action in splitting off the Facilities Licenses for future consultation rather than inclusion in the fifth Corps-NMFS consultation. Neither the 2013 Englebright and Daguerre BAs, the LOC, nor the 2014 BiOp provide any sound reason why earlier determinations that the Facilities Licenses were part of a single action were wrong--which they were not. The Dams were originally built as part of an integrated project on the Yuba River to control mining debris and thus are interrelated aspects of a single action. C18671-72; C29462. The Brophy and Cordua Diversions are interrelated to Daguerre. Daguerre provides the head necessary for the Brophy Diversion to operate. C42508. The Cordua Diversion is physically attached to Daguerre and the Diversion's 7 However, the 2013 Englebright and Daguerre BAs are ambiguous concerning the Corps’ future consultation intentions. The BAs omitted indication of whether the Corps intends to consult on the Corps’ license and easement for the Cordua Diversion. The BAs did not provide specific easement and license numbers for the Narrows 1 and 2 "outgrants" so it is not clear which "outgrants" the Corps has slated for future consultation. Additionally, the Corps determined that some "outgrants" associated with Narrows 1 and 2 had "no effect" on the Listed Species without explaining why. The Corps has apparently made a final agency determination not to consult on certain Facilities Licenses, without identifying which specific ones and without providing an adequate explanation why these specific outgrants have "no effect" on the Listed Species. This violates the ESA. W. Watersheds, 632 F.3d at 498; Native Ecosystems v. Krueger, 946 F. Supp. 2d 1060, 1079 (D. Mont. 2013). Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 22 of 34 P's MOTION FOR SUMMARY JUDGMENT 14 2:16-CV-00818-JAM-EFB 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 operation is assisted with flashboards placed on Daguerre. C42621. Narrows 1 and 2 draw water from Englebright Reservoir, Narrows 1 is physically attached to Englebright Dam, and Narrows 1 and 2 operations are coordinated. C29462; Weisselberg Decl., Ex. 5 at 3. Given this interrelationship, the Corps may not permissibly segregate out the Facilities Licenses from operation and maintenance of the Dams and the Daguerre fish ladders for a separate consultation. Karuk, 681 F.3d at 1011; Wash. Toxics, 413 F.3d at 1031-32; Conner v. Burford, 848 F.2d 1441, 1457-58 (9th Cir. 1988). B. The 2013 Englebright BA, LOC, and 2014 BiOp Are Arbitrary and Capricious. The 2013 Englebright BA,8 LOC, and 2014 BiOp (collectively, "the Agencies Decisions") should be set aside as arbitrary and capricious. See, e.g., San Luis, 747 F.3d at 601 (5 U.S.C. § 706(2)(A)’s arbitrary and capricious standard governs judicial review of agency ESA decisions). The Agency Decisions failed to consider an important aspect of the problem when they narrowly defined the Action as including only operation and cleaning of the Daguerre fish ladders, adding gravel and wood to the Yuba River,9 and removing sediment from the Yuba channel upstream of the Daguerre fish ladders. The Agency Decisions do not explain why the Corps and NMFS thus departed from the several Yuba BiOps and BAs prior to 2012 which concluded that continued maintenance of the Dams and issuance and administration of the Facilities Licenses are part of an integrated Action that may affect the Listed Species. This unexplained departure is arbitrary and capricious. See Organized Village of Kake v. USDA, 795 F.3d 956, 969 (9th Cir. 2015); Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 481 F.3d 1224, 1233-1234 (9th Cir. 2007) ("Because NMFS's approach is a novel one, completely at odds with NMFS's prior scientific approaches, it merits little deference."). The Agency Decisions improperly define as part of the "environmental baseline" adverse impacts which the agencies formerly concluded were, and accurately are, part of the effects of the Action. See, e.g., NWF, 524 F.3d at 929-30. The Agency 8 The 2013 Englebright BA is a final agency decision subject to judicial review because the LOC adopted and relied upon this BA in making the determination that the action was not likely to adversely affect the protected fish species and no formal consultation was needed. League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Connaughton, No. 12-02271, 2013 WL3776305, at *6 (July 17, 2013), aff'd in part, rev'd in part and remanded, 752 F.3d 755 (9th Cir. 2014); see also Oregon Wild v. U.S. Forest Service, 193 F. Supp. 3d 1156, 1164 (D. Or. 2016). 9 The gravel and LWM programs are not properly part of the Action because they are voluntary measures subject to funding availability. C42615. Only conservation measures that the Corps has made a firm commitment to implement can be included in the Action. NWF, 524 F. 3d at 936. Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 23 of 34 P's MOTION FOR SUMMARY JUDGMENT 15 2:16-CV-00818-JAM-EFB 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 Decisions, in dividing up Englebright, Daguerre and the Licensed Facilities into separate unrelated actions that each only affect a very small "action area,"10 and in indefinitely postponing consultation on aspects of the Action, further depart from ESA requirements concerning not segmenting interrelated agency actions nor defining an "action area" so narrowly as to exclude obviously interrelated adverse impacts on Listed Species. See, e.g., Wild Fish Conservancy v. Salazar, 628 F.3d 513, 521 (9th Cir. 2010); Nat'l Wildlife Fed'n v. NMFS, 254 F. Supp. 2d 1196, 1211-12 (D. Or. 2003). Notably, NMFS’s four BiOps issued 2002-2012 were consistent with numerous NMFS biological opinions concluding that adverse effects caused by other dams' ongoing existence, including blocking and impairing fish passage, and preventing downstream deposition of spawning gravel and large wood, are part of the effects of the action, not the environmental baseline. Rathje Decl., Ex. I, J, K; Weisselberg Decl., Ex. 30 at 84-90. Further, in other settings where the Corps has argued a NMFS biological opinion cannot require modification of a structure causing harm to listed fish, NMFS has stood by its contrary interpretation of the ESA.11 Id., Ex. 20 at 1-2 (cover ltr.), 40-42, 49-50 (encl.). The Court should set aside the 2013 Englebright BA, LOC and 2014 BiOp and reinstate the valid 2012 BiOp. See Kake, 795 F.3d at 970 (vacating agency rule and reinstating prior rule); National Parks Conservation Ass'n v. Jewell, 62 F. Supp. 3d 7, 20-21 (D.D.C. 2014) (vacating agency rule promulgated without formal ESA § 7 consultation and reinstating prior rule); Paulsen v. Daniels, 413 F.3d 999, 1008 (9th Cir. 2005) ("The effect of invalidating an agency rule is to reinstate the rule previously in force."). C. The Corps Has Violated Its ESA § 7 Substantive Duty. 10 Previous biological opinions defined Englebright Dam and Reservoir as part of the Action Area. C29463. However, the 2014 BiOp defined the Action Area as starting from a point 135 feet downstream from Narrows 2 which means the BiOp's jeopardy and critical habitat adverse modification analysis failed to consider impacts near Englebright and Narrows 2. C42345; 50 C.F.R. § 402.02. 11 Some NMFS documents obtained by FOR indicate that NMFS disagreed with the Corps' definition of the Action and the environmental baseline. Weisselberg Decl., Ex. 27, 39. These documents further suggest that NMFS decided to go along with the Corps not because NMFS had independently concluded that the Corps was right, but only to present a united litigation front in another ESA citizen suit then pending in this court, SYRCL v. NMFS, No. 13-00059, 2013 U.S. Dist. LEXIS 114477 (E.D. Cal. Aug. 13, 2013). N1302-1305;Weisselberg Decl., Ex. 27, 29. NMFS decision-makers also apparently concluded that the Corps was more likely to implement some of the measures in the 2012 BiOp if they were framed as voluntary measures under ESA Section 7(a)(1). Id., Ex. 28. The LOC and 2014 BiOp are arbitrary and capricious to the extent that NMFS made its decision based on such calculations, which are not factors that Congress directed NMFS to consider in ESA consultations, rather than straightforward analysis of the technical issues and application of the law. Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 24 of 34 P's MOTION FOR SUMMARY JUDGMENT 16 2:16-CV-00818-JAM-EFB 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 Separate from its procedural duty to consult with NMFS concerning the Action, ESA § 7(a)(2) imposes a substantive duty on the Corps to ensure that the Action does not jeopardize the survival or recovery of Listed Species. Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt, 698 F.3d 1101, 1127-28 (9th Cir. 2012); Resources Ltd. v. Robertson, 35 F.3d 1300, 1304 (9th Cir. 1994); Pyramid Lake Paiute Tribe of Indians v. United States Dep't of Navy, 898 F.2d 1410, 1415 (9th Cir. 1990). As noted, the 2012 BiOp found that the Corps’ maintenance of the Dams and authorization of the Licensed Facilities jeopardizes the Listed Species. The 2012 BiOp identified specific detailed measures as the RPA to avoid this jeopardy. Neither the Corps nor NMFS have produced any analysis showing the 2012 BiOp’s conclusions wrong. As the 2012 BiOp’s jeopardy determination and identification of the RPA involved NMFS’s scientific expertise, it is entitled to deference here. E.g., San Luis, 747 F.3d at 610; Nat'l Wildlife Fed'n, 254 F. Supp. 2d at 1205. The Corps expressly stated it would not implement most of the RPA and continues to decline to do so. C14488. The few measures that the Corps has taken to benefit the Listed Species, such as attempting to add some LWM and adding some gravel to the Yuba, are manifestly not promoting the species’ recovery nor curbing their extinction risk. One, the Corps has not even fully implemented the few measures it is obligated to do under the 2014 BiOp. Two, the Listed Species continue to decline as pointed out above. Three, these measures are far short of the 2012 BiOp's RPA—the latter remains the NMFS uncontroverted standard for what is needed to avoid jeopardizing the species. Accordingly, the Corps is engaged in conduct which NMFS has shown and this Court must find to be jeopardizing the Listed Species’ survival and recovery. This plainly violates the Corps’ substantive ESA § 7(a)(2) duty. D. The Corps Is Liable under ESA § 9 for Taking the Listed Species. The ESA defines species "take" "in the broadest possible manner to include every conceivable way in which a person can 'take' or attempt to 'take' any fish or wildlife." Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 690 (1995); Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 784 (9th Cir. 1995). NMFS regulations define "harm" that constitutes “take” to include “significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including breeding, spawning, rearing, migrating, feeding or sheltering.” 50 C.F.R. § 222.102; see Murrelet v. Pacific Lumber Co., 83 F.3d Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 25 of 34 P's MOTION FOR SUMMARY JUDGMENT 17 2:16-CV-00818-JAM-EFB 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 1060, 1065 (9th Cir. 1996), cert. denied, 519 U.S. 1108 (1997); Swinomish Indian Tribal Cmty. v. Skagit County Dike Dist., 618 F. Supp. 2d 1262, 1270 (W.D. Wash. 2008). ”A take may involve a past or current injury, or the prospect of an imminent threat of harm to a protected species.” Alliance for the Wild Rockies v. United States Dep't of Agric., 772 F.3d 592, 605 (9th Cir. 2014); see also Rosboro, 50 F.3d at 784. Harming an ESA-protected species constitutes take even if the unintentional and indirect byproduct of otherwise lawful acts. Sweet Home, 515 U.S. at 697-98, 703-07. As discussed in the Statement of Facts, the NMFS BiOps issued from 2002 to 2012 detailed how the Action harms the Listed Species. Notably, these BiOps all included ITSs authorizing limited "take" of the Listed Species, necessarily equating to a finding that the Action "takes" the Listed Species. See Ariz. Cattle Growers’ Ass’n v. U.S. FWS, 273 F.3d 1229, 1237, 1240-42 (9th Cir. 2001) (agency must make take finding before issuing ITS); 80 Fed. Reg. 26832, 26837 (May 11, 2015) (reasonable certainty of take necessary for ITS issuance). These BiOps suffice as persuasive evidence that the Action "takes" the Listed Species. Courts routinely rely on NMFS and other agency’s similar conclusions to find take. E.g., Palila v. Hawaii Dep’t of Land & Natural Resources, 639 F.2d 491, 496-98 (9th Cir. 1981); Or. Natural Desert Ass'n v. Tidwell, 716 F. Supp. 2d 982, 1006 (D. Or. 2010); Defenders of Wildlife v. Martin, No. 05-248, 2007, U.S. Dist. LEXIS 13061, at *11-*12, *27-*28 (E.D. Wash. Feb. 26, 2007); see also Rosboro, 50 F.3d at 788. The evidence need only show that the Action is "likely" or "reasonably certain" to be harming the Listed Species or to cause imminent future harm. Sweet Home, 515 U.S. at 700 (evidence establishing that "foreseeable" and "reasonably certain" adverse impacts to endangered species are “fairly traceable to the challenged action of defendants” suffices to show take); Murrelet, 83 F.3d at 1067-68 (finding take without direct observations of harm when protected murrelets nested in trees targeted by logging which "would likely harm murrelets by impairing their breeding and increasing the likelihood of attack by predators"); Rosboro, 50 F.3d at 784, 787-88 ("Habitat modification that is reasonably certain to injure the Swartz Creek owl pair by impairing their essential behavioral patterns. . . satisfies the ‘actual injury’ requirement."); Tidwell, 716 F. Supp. 2d at 1005-06 (take established by evidence that cattle grazing caused “significant habitat degradation” that “likely” harmed steelhead; no direct observational evidence of steelhead mortality or injury); Swinomish, 618 F. Supp. 2d at 1270 Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 26 of 34 P's MOTION FOR SUMMARY JUDGMENT 18 2:16-CV-00818-JAM-EFB 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 (finding take without direct observational impact of salmon injury or mortality, relying on NMFS biological opinion conclusion that a tidegate blocked salmon access to habitat and altered estuary flow and sediment transport regime in fashion adverse to salmon); Martin, 2007 U.S. Dist. LEXIS 13061, at *11-*12, *27-*28 (“in the context of habit degradation … an activity may constitute a violation of § 9 even though the harm is indirect and prospective” when it “prevents, or possibly, retards, recovery of the species.”); Pac. Rivers v. Brown, No. 02-243, 2002 U.S. Dist. LEXIS 28121, at *12, *32 (D. Or. Dec. 23, 2002) (authorization of logging operations that are “likely” to result in take is itself a take); Sierra Club v. Lyng, 694 F. Supp. 1260, 1270 (E.D. Tex. 1988); aff’d in part, rev’d in part on other grounds, Sierra Club v. Yeutter, 926 F.2d 429, 438-39 (5th Cir. 1991) (finding take on adverse habitat alteration evidence, noting "’Harm’ does not necessarily require the proof of the death of specific or individual members of the species.”); Cascadia Wildlands v. Kitzhaber, 911 F. Supp. 2d 1075, 1084-1085 (D. Or. 2012); 64 Fed. Reg. 60,727, 60,728 (Nov. 8, 1999) ([“Harm” within the meaning of 50 C.F.R. § 222.102 may be shown through a variety of methods and types of evidence . . . [Including] inferences or opinions drawn from facts pertaining to a given act(s) of habitat modification or degradation."); 80 Fed. Reg. 26832, 26837 (May 11, 2015) ("the ‘reasonable certainty’ standard [for take] does not require guarantee that a take will result"). While the evidence shows that the Action is creating a great deal of harm, even harm to a single ESA-listed fish suffices for liability. E.g., Tidwell, 716 F. Supp. 2d at 1005-06. 1. The Dams Are Causing "Harm" to the Listed Species. As discussed in the Statement of Facts, the NMFS BiOps and other agency evidence detail that the Dams’ harm the Listed Species by blocking these fishes migration to their historic upstream habitat. Maintaining Englebright, Daguerre and Daguerre's fish ladders as structures that block anadromous fish from accessing their habitat constitutes harmful "disrupt[ion to their] normal behavioral patterns," that adversely impacts the Listed Species' spawning, rearing, migrating, feeding and sheltering behavior and thus is ESA § 9 take. Swinomish, 618 F. Supp. 2d at 1270; see also Martin, 2007 U.S. Dist. LEXIS 13061, at *11-*13,*27-*28 (actions tending to block endangered caribou from migrating to habitat constitutes take). The NMFS BiOps and other agency evidence further document that the Dams modify the Yuba in ways that promote predation and create a scarcity of large wood and cobbles/gravels necessary for good habitat for the Listed Species. Daguerre’s configuration also directly injures fish that Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 27 of 34 P's MOTION FOR SUMMARY JUDGMENT 19 2:16-CV-00818-JAM-EFB 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 plunge over the dam during downstream migration or that collide with the dam when misled by the Dam’s spill. Adversely modifying the Listed Species' critical habitat in these ways likely, indeed reasonably certain, to harm them constitutes unlawful ESA § 9 take. See, e.g., Rosboro, 50 F.3d at 784, 787-88. Holdings in FOR’s prior ESA citizen suit litigation on the Yuba are further instructive. In this litigation, Judge Karlton declined to address FOR’s claim that the Dams were causing take in violation of ESA § 9 as prudentially moot because the injunctive relief awarded under plaintiffs’ successful § 7 claim provided the same remedy sought under the § 9 claim. SYRCL v. NMFS, No. 06-284, 52010 U.S. Dist. LEXIS 125403, at *6-8 (E.D. Cal. Nov. 16, 2010) (“SYRCL III"). However, the Court’s earlier ruling declining to dismiss plaintiffs’ ESA § 9 claim found that the Dams’ harms could constitute take. SYRCL v. NMFS, 629 F. Supp. 2d 1123, 1135 (E.D. Cal. 2009) (“SYRCL I"). Viewing the harms caused by a dam’s existence as "take" is further consistent with TVA’s barring the construction of a dam which would extirpate an endangered fish. 437 U.S. 153. Notably, the Tellico Dam’s harm to the snail garter would not have come from the act of building the dam, but from the dam’s passive existence thereafter. NMFS interprets its ESA regulations as providing that structures which block anadromous fish migration are causing "harm" and thus "take." 64 Fed. Reg. at 60727-30; see also 71 Fed. Reg. 834, 858 (Jan. 5, 2006) (NMFS preamble identifying "blocking, or altering stream channels" as among actions that could "harm" steelhead "and result in a violation of this section 9 take prohibition"); see Our Children's Earth v. Stanford, No. 13-00402, 2015 U.S. Dist. LEXIS 176517, at *22-*25 (N.D. Cal. Dec. 11, 2015). Numerous NMFS biological opinions have included incidental take statements implicitly finding ongoing harms perpetuated by a dam’s existence to be take. E.g., Rathje Decl., Ex. H at 19-20; see also Stanford, 2015 U.S. Dist. LEXIS 176517, at *25. NMFS’s interpretation of ESA § 9 “take” and its own regulation’s definition of “harm” is reasonable and thus entitled to deference. E.g., Coeur Alaska, Inc. v. Se. Alaska Conserv. Council, 557 U.S. 261, 277-78 (2009); see also Stanford, 2015 U.S. Dist. LEXIS 176517, at *25; SYRCL II, 723 F. Supp. 2d at 1257. Tort law has well developed and commonly understood doctrine concerning when defendants should be deemed to have caused actionable harm which should inform take determinations in ESA suits. See Sweet Home, 515 U.S. at 697 n.9; see also 64 Fed. Reg. at 60,729-30 (NMFS intended Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 28 of 34 P's MOTION FOR SUMMARY JUDGMENT 20 2:16-CV-00818-JAM-EFB 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 definition of "harm" for ESA take purposes in 50 C.F.R. § 222.102 to track Sweet Home endorsement of tort causation concepts); Greenlaw v. U.S., 554 U.S. 237, 250 (2008) (Congress is understood to legislate against the common law’s backdrop). In tort, real property possession creates responsibility for the injuries proximately caused by the property's condition—with or without affirmative actions causing injury. E.g., Rowland v. Christian, 69 Cal. 2d 108, 119 (1968). For centuries, courts have imposed tort liability for harms caused by the mere existence of stationary structures (including dams) or from property conditions. See, e.g., Alcaraz v. Vece, 14 Cal. 4th 1149, 1179 (1997); Bigbee v. Pacific Tel. & Tel. Co., 34 Cal. 3d 49, 58 (1983); Sprecher v. Adamson Companies, 30 Cal.3d 358, 368 (1981); Wilson v. City of New Bedford, 108 Mass. 261, 265-67 (1871). Heeding Sweet Home’s instructions to look to tort law, the Corps is accountable for the harm to the Listed Species foreseeably caused by the Dams simply by allowing the Dams to exist on its property. Case law under other environmental statutes supports this interpretation. Clean Water Act (“CWA”) § 301(a), 33 U.S.C. § 1311(a), makes it unlawful to “discharge” pollutants without CWA permit authorization. CWA defendants can unlawfully “discharge” pollutants by maintaining their property in fashions that passively lead to pollutants reaching waters. See, e.g., Committee To Save Mokelumne River v. EBMUD, 13 F.3d 305 (9th Cir. 1993); Sierra Club v. Abston Const. Co., Inc., 620 F.2d 41 (5th Cir. 1980); U.S. v. Earth Sciences, Inc., 599 F.2d 368 (10th Cir. 1979). Similarly, allowing unlawfully discharged fill material to remain within waters on one's property creates ongoing CWA liability, even though allowing this fill to remain involves no new action. See, e.g., Sasser v. EPA, 990 F.2d 127, 129 (4th Cir. 1993); Swinomish, 618 F. Supp. 2d at 1266; City of Mt. Park v. Lakeside at Ansley, LLC, 560 F. Supp. 2d 1288, 1296-97 (N.D. Ga. 2008). If such passive allowance of property conditions equates to “discharge” of pollutants, by analogy, allowing property conditions that harm species equates to species “take.” 2. The Dams Are Harassing or Trapping the Listed Species. "Take" of ESA-listed species is not limited to causing "harm," but includes "trap[ping]" or "harass[ing]" the species as well. ESA § 3 (19), 16 U.S.C. § 1532(19); 50 C.F.R. § 222.102; see generally Murrelet, 83 F.3d at 1065. Trapping and impeding wildlife movement can constitute take, even absent proof of harm. Animal Welfare Inst. v. Martin, 588 F. Supp. 2d 70, 98, 105 (D. Me. 2008) Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 29 of 34 P's MOTION FOR SUMMARY JUDGMENT 21 2:16-CV-00818-JAM-EFB 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 (temporarily trapping and releasing species where harm is merely speculative constitutes take because Congress intended trap and harm to have distinct meanings); Strahan v. Holmes, 595 F. Supp. 2d 161, 165 (D. Mass. 2009) (same). The Dams "trap" and impede the movement of the Listed Species to their desired habitat. This alone constitutes take. The Dams further "harass" the Listed Species. "Harass[ing]" an ESA-listed species includes “an intentional or unintentional human act or omission that creates the probability of injury to an individual animal by disrupting one or more behavioral patterns that are essential to the animal's life history.” Strahan v. Roughead, 910 F. Supp. 2d 358, 366-67 (D. Mass. 2012); see also Sweet Home, 515 U.S. 687, 704-05; Palila v. Hawaii Dep't of Land & Natural Resources, 852 F.2d 1106, 1108 (9th Cir. 1988); Cascadia, 911 F. Supp. 2d at 1086 (harassing wildlife may constitute take even if wildlife is not killed or injured); 50 C.F.R. § 17.3. As noted, the Dams disrupt the Listed Species' essential behavioral patterns. 3. The Corps Is Liable for Take Caused by the Powerhouses and Cordua Diversion. As discussed in the Statement of Facts, flow fluctuations caused by Narrows 1 and 2 operations have harmed Spring Chinook and Steelhead by dewatering redds, eggs, and pre-emergent fry, stranding juvenile and adult fish in isolated pools where they are stressed and often perish, and causing fish to either leap or be blasted onto the riverbank where they die.12 High velocity discharges from Narrows 2 have further caused significant habitat modification that reduces spawning habitat by scouring the substrate, eroding bedrock and creating "shot rock," and pushing rocks from the bottom of the river up against the shoreline creating the isolation pools where fish become stranded. Weisselberg Decl., Ex. 2 at 6; Ex. 4 at 5; Ex. 9 at 3; Ex. 16 at 2; Ex. 17; Ex. 18; see also Reedy Decl. ¶ 11. Harm caused by sudden flow fluctuations dewatering the river and trapping fish in isolation pools and harm caused by high velocity discharges that adversely modify critical spawning habitat is likely to continue. Although YCWA has developed a plan to monitor the streambed for isolation pools, the plan falls far short of preventing the pools from forming and trapping listed fish. The plan merely creates a cycle of YCWA or 12 NMFS has also observed adult Chinook "swimming near the outlet draft tubes of the Narrows 2 Powerhouse, raising questions about the energetic effects (loss of energy stores) of this behavior on pre- spawning, spring-run Chinook. It also raises concerns that Chinook or steelhead could be injured or killed by the turbine “runners” (particularly during start up and shut down of powerhouse) – and raises the question of the need for physical exclusion devices.” Weisselberg Decl., Ex. 5 at 3. Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 30 of 34 P's MOTION FOR SUMMARY JUDGMENT 22 2:16-CV-00818-JAM-EFB 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 another agency discovering a pool that has trapped fish, alerting resource agencies to perform a fish rescue if they can get there in time before the fish have perished, YCWA seeking the necessary permits to perform the streambed alterations to fill in the pool, only to have it reform, or to discover other pools that have been created by Narrows 2 operations. See, e.g., Weisselberg Decl., Ex. 21, Ex. 22, Ex. 12. Further, the plan does nothing to address the ongoing substrate scouring and shot rock problems that make the critical habitat in the vicinity of Narrows 2 unsuitable for spawning. As also discussed, the Cordua Diversion also harms Spring Chinook and Steelhead by entraining and impinging outmigrating juveniles. As noted, the Corps has issued licenses and easements authorizing Narrows 1 and 2 and the Cordua Diversion. Because ESA § 9(g) makes it unlawful for any person to "cause to be committed" unauthorized taking of ESA-listed species, the Corps is liable under ESA § 9 for authorizing the existence and operation of these structures which in turn cause take.13 See Anim. Welfare Inst. v. Martin, 623 F.3d 19 (1st Cir. 2010); Loggerhead Turtle v. Cnty. Council of Volusia Cnty., Fla., 148 F.3d 1231 (11th Cir. 1998); Yeutter, 926 F.2d at 432-33, 438-49; Strahan v. Coxe, 127 F.3d 155, 165 (1st. Cir. 1997); Defenders of Wildlife v. EPA, 882 F.2d 1294, 1301 (8th Cir. 1989); Animal Prot. Inst. v. Holsten, 541 F. Supp. 2d 1073, 1076-80 (D. Minn. 2008); Seattle Audubon Soc'y v. Sutherland, No. 06-1608, 2007 U.S. Dist. LEXIS 31880, at *24 (W.D. Wash. May 2, 2007); U.S. v. Town of Plymouth, 6 F. Supp. 2d. 81, 90-91 (D. Mass. 1998). E. The Corps and NMFS Must Reinitiate ESA § 7 Consultation. New information about the effects of even the limited set of actions addressed in the 2014 BiOp (operation and cleaning of the Daguerre fish ladders, sediment dredging, addition of wood and gravel to the Yuba) trigger a mandatory Corps and NMFS duty to reinitiate ESA § 7 consultation concerning the Action—even if the "Action" could properly be limited to those scant measures. 50 C.F.R. § 402.16(b); Salmon Spawning and Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1229 (9th Cir. 2008). (1), the 2014 BiOp concluded that the Action, consisting of Daguerre fish ladders operations and three "protective" and two "voluntary" conservation measures, would not worsen the Listed Species baseline conditions and would actually improve fish passage, spawning, and juvenile rearing conditions above 13 NMFS staff noted that the 2014 BiOp "will have the effect of leaving take unauthorized and creating vulnerabilities for the Corps and the licensee [YCWA]." Weisselberg Decl., Ex. 23. Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 31 of 34 P's MOTION FOR SUMMARY JUDGMENT 23 2:16-CV-00818-JAM-EFB 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 conditions in 2014. C42332-33; C42632. (2), new information shows the opposite, that the Yuba River Spring Chinook and Steelhead populations have plummeted in the past two years and habitat conditions have worsened. Reedy Decl. ¶¶ 10, 14-20, 25; Ex. B, C. Significant new information exists concerning the effects of the Corps' LWM Program. C51191- 94; Reedy Decl. ¶¶ 24-26. In 2014 and 2016, the Corps placed large logs along the riverbank between Englebright and Daguerre. Id. ¶ 24, Ex. G. The intention of the LWM Program was that river flows would move large wood placed on the river bank into the stream channel, where it would anchor in a stable location creating new juvenile fish rearing habitat. C51205-06. Instead, winter storms in 2016-17 simply washed these pieces of wood away downstream and did not result in new habitat because the Corps failed to use best methods. Reedy Decl. ¶¶ 24-25, Ex. F. This new information shows the Corps' implementation of the LWM Program is ineffective and has not improved juvenile rearing conditions, an impact not considered in the 2014 BiOp. The Corps and NMFS must also reconsult because the Action was modified to adversely affect Spring Chinook and Steelhead in a manner not considered in the 2014 BiOp. 50 C.F.R. § 402.16(c). The BiOp analyzed an action that would "improve fish passage" by keeping the ladders open at all river elevations. C42334. However, high storm flows closed the Daguerre fish ladders for parts of January, February and March 2017, during the Steelhead spawning migration season. Reedy Decl. ¶ 22, Ex. D. In addition to blocking Steelhead migration, the closures may have killed Steelhead. Id. Further, although the south ladder gates were reopened in March, the ladder has remained full of debris for the past two months which has impaired both Steelhead and Spring Chinook migration. Id. ¶ 23, Ex. E. Reinitiation of consultation is required due to impacts from fish ladder closures and failure to clear debris from the south fish ladder for two months, impacts not considered in the BiOp. Other new information concerning the Dams’ and Licensed Facilities’ overall impacts on the Listed Species further triggers Corps and NMFS duty to reinitiate consultation on the Action: (1), new scientific and technical information has emerged since the 2014 BiOp about the Listed Species’ status and how the Action may affect them, including: a comprehensive 5-year NMFS review issued in April 2016 that concludes that the recent drought has increased risks to the survival of Spring Chinook; an October 2014, University of California, Davis study identifying Englebright as a dam that needs Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 32 of 34 P's MOTION FOR SUMMARY JUDGMENT 24 2:16-CV-00818-JAM-EFB 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 improved downstream fish flows to sustain healthy fish populations; a December 2016 California Department of Water Resources study summarizing recent take of the Listed Species by various Northern California facilities, a comprehensive 5-year NMFS review issued in August 2015 that includes new information about the suitability of Green Sturgeon habitat above Daguerre, an April 2015 U.S. Fish and Wildlife Service habitat management and restoration plan for the applicable Yuba River reach, and a December 2016 Corps’ environmental assessment/initial study for a restoration project in this Yuba River reach. Weisselberg Decl., Ex. 36 at 33-35; Ex. 37 at 41-43, 48; Ex. 38 at 13-14; Ex. 40 at 1-1 to 1-3, 2-1 to 2-3, Ex. 42. (2), new information has come to light since the 2014 BiOp was issued concerning stranding incidents and fish mortalities caused by Narrows 1 and 2, discussed above in the Statement of Facts and Section IV.D. (3), the Corps' September 2014 Yuba River Ecosystem Restoration Study and 2015 Central Valley Integrated Flood Management Study, studies expressly authorized and funded by Congress, have provided yet more information concerning the impacts of the Action on the Listed Species and measures to lessen these impacts (shedding more light on the appropriate RPA). C52144-52202; Weisselberg Decl., Ex. 41 at 1-1, 1-4, 1-27, D-1 to D-3. These two studies have further provided new information supporting Corps authority to modify its Yuba River activities. Additionally, the Corps renewed the YCWA Narrows 2 contract in 2016 and 2017, events also triggering a duty to reinitiate consultation over the Narrows 2 license. Given these triggering events, the Court should order both the Corps and NMFS to reinitiate ESA § 7 consultation over the Action. See Pacificans, 2016 U.S. Dist. LEXIS 55672, at *35-*38. F. Friends of the River Has Standing. In the related SYRCL case, the Corps and NMFS conceded, and Judge Karlton found, FOR to have standing. SYRCL II, 723 F. Supp. 2d at 1250, 1254-1255. FOR continues to have standing here for its procedural ESA claims as (1) the Agency Decisions violate the ESA’s procedural requirements; (2) these requirements are designed to protect the concrete interests of persons like FOR’s members in the environmental resources at issue here; and (3) it is reasonably probable that the Action will threaten FOR members' concrete interests in preventing the Action's adverse impacts on the environment they utilize. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992); Salmon Spawning, 545 F.3d at 1226; Cantrell v. City of Long Beach, 241 F.3d 674, 680-82 (9th Cir. 2001); Wesselman Decl.; Center Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 33 of 34 P's MOTION FOR SUMMARY JUDGMENT 25 2:16-CV-00818-JAM-EFB 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 Decl., Phillips Decl. FOR has standing for its substantive ESA §§ 7 and 9 claims as (1) the Action is causing a concrete and particularized injury in fact to its members' interest in a preserved local environment, (2) their injury is traceable to the Action, and (3) their injury would be redressed by the relief requested. Friends of the Earth, Inc. v. Laidlaw Environmental Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000); Wesselman Decl.; Center Decl.; Phillips Decl. V. CONCLUSION For the foregoing reasons, Plaintiffs should be granted summary judgment setting aside the Agency Decisions as arbitrary and capricious and reinstating the 2012 BiOp pending completion of a new ESA consultation on the Action by a date certain. To remedy the substantial ESA violations discussed above, the Corps should be enjoined to implement remedial measures patterned after the RPA measures in the 2012 BiOp in the interim before issuance of a new NMFS biological opinion for the Action. As noted, NMFS’s 2012 BiOp concluded the Action is jeopardizing the Listed Species’ survival and recovery and adversely modifying their critical habitat. As Judge Karlton found in analogous circumstance, the harms to the Listed Species perpetuated by the Action constitute irreparable harm warranting interim injunctive relief to protect the species while a valid biological opinion is developed. SYRCL V, 804 F. Supp. 2d at 1057-67; see also, e.g., Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 422 F.3d 782, 787 (9th Cir. 2005) (preliminary injunction appropriate to remedy harm from dams pending completion of renewed ESA § 7 consultation). Whatever hardship to the Corps would be entailed in such injunctive relief is necessarily outweighed by the interest in rescuing the Listed Species from extinction risk. E.g., Sierra Club v. Marsh, 816 F.2d 1376, 1383 (9th Cir. 1987) (“[P]rojects that jeopardized the continued existence of endangered species threaten incalculable harm: accordingly,…the balance of hardships and the public interest tip heavily in favor of endangered species. [A court] ‘may not use equity's scales to strike a different balance.’”) (citing TVA). Date: May 12, 2017 Respectfully submitted, Christopher Sproul Attorney for Plaintiff Case 2:16-cv-00818-JAM-EFB Document 33-1 Filed 05/12/17 Page 34 of 34 DECLARATION OF DANIELLE RATHJE 1 Case No. 2:16-cv-00818-JAM-EFB 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 Christopher A. Sproul (Bar No. 126398) Environmental Advocates 5135 Anza Street San Francisco, California 94121 Telephone: (415) 533-3376 Facsimile: (415) 358-5695 Email: csproul@enviroadvocates.com Patricia Weisselberg (Bar No. 253015) Law Office of Patricia Weisselberg 115 Oakdale Avenue Mill Valley, CA 94941 Telephone: (415) 388-2303 Email: pweisselberg@wans.net Attorneys for Plaintiff FRIENDS OF THE RIVER UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRIENDS OF THE RIVER, a non-profit corporation, Plaintiff, v. NATIONAL MARINE FISHERIES SERVICE, et al., Defendants. Case No. 2:16-cv-00818-JAM-EFB DECLARATION OF DANIELLE RATHJE IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Case 2:16-cv-00818-JAM-EFB Document 33-2 Filed 05/12/17 Page 1 of 2 DECLARATION OF DANIELLE RATHJE 2 Case No. 2:16-cv-00818-JAM-EFB 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, Danielle Rathje, hereby declare and state under penalty of perjury that the following facts are true and correct: 1. I am attorney, licensed to practice in the State of California. I make this Declaration in support of Plaintiff's Motion For Summary Judgment ("MSJ") in this matter, based on my personal knowledge or opinion, and I am competent to testify to the matters set forth herein. 2. I downloaded the four final Biological Opinons discussed in paragraphs 3-6 below, from the National Marine Fisheries Service ("NMFS) Public Consultation Tracking System ("PCTS") website at https://pcts.nmfs.noaa.gov/pcts-web/homepage.pcts in preparation for this case. 3. Attached hereto as Exhibit H is a true and correct copy of pertinent pages from the NMFS 2001 Biological Opinion for “Howard Hanson Dam, Operation and Maintenance, Additional Water Storage Project, and Conservation Measures” (WSB-00-198). 4. Attached hereto as Exhibit I is a true and correct copy of pertinent pages from the NMFS Biological Opinion for “Savage Rapids Dam, Irrigation Operation for 2001, Jackson and Josephine Counties, Oregon 2001” (OSB2001-0083-FFEC). 5. Attached hereto as Exhibit J is a true and correct copy of pertinent pages from the NMFS 2003 Biological Opinion “NWR-2003-74, Carmen-Smith (FERC No. 2242), Trail Bridge Dam Emergency Spillway Expansion and Continuing Operations, McKenzie River Basin, OR.” 6. Attached hereto as Exhibit K is a true and correct copy of pertinent pages from the NMFS 2008 Biological Opinion, NWR-2000-2117, considering “Continued Operation of 13 Dams & Maintenance of 43 Miles of Revetments in the Willamette Basin, OR.” Executed in San Francisco, California on May 9, 2017 _______________________________ Danielle Rathje Case 2:16-cv-00818-JAM-EFB Document 33-2 Filed 05/12/17 Page 2 of 2 RATHJE DECLARATION EXHIBIT H Case 2:16-cv-00818-JAM-EFB Document 33-3 Filed 05/12/17 Page 1 of 4 Endangered Species Act - Section 7 BIOLOGICAL OPINION Howard Hanson Dam and Additional Water Storage Project WSB-00-198 Agency: U.S. Army Corps of Engineers, Seattle District Consultation Conducted By: National Marine Fisheries Service Northwest Region, Washington State Habitat Branch Approved:____________________________ Date: October 20, 2000 Donna Darm Acting Regional Administrator Case 2:16-cv-00818-JAM-EFB Document 33-3 Filed 05/12/17 Page 2 of 4 19 chinook. The proposed action, with the proposed conservation measures, are expected to reduce take to an acceptable level. VII. INCIDENTAL TAKE STATEMENT Sections 4 (d) and 9 of the ESA prohibit any taking (harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt to engage in any such conduct) of listed species without a specific permit or exemption. Harm is further defined to include significant habitat modification or degradation that results in death or injury to listed species by significantly impairing behavioral patters such as breeding, feeding, and sheltering. Harass is defined as actions that create the likelihood of injuring listed species to such an extent as to significantly alter normal behavior patterns which include, but are not limited to, breeding, feeding, and sheltering. Incidental take is take of listed animal species that results from, but is not the purpose of, the Federal agency or the applicant carrying out an otherwise lawful activity. Under the terms of section 7(b)(4) and section 7(o)(2), taking that is incidental to, and not intended as part of, the agency action is not considered prohibited taking provided that such taking is in compliance with the terms and conditions of this incidental take statement. The measures described below are non-discretionary; they must be implemented by the action agency so that they become binding conditions of any grant or permit issued to the applicant, as appropriate, in order for the exemption in section 7(o)(2) to apply. The Corps has a continuing duty to regulate the activity covered in this incidental take statement. A. Amount or Extent of the Take Most of the incidental take resulting under present operations and continuing under the proposed action is presently not quantified and is probably unknowable. Incidental take attributable to downstream fish passage under the proposed action can be estimated but not specifically quantified (in terms of individual fish numbers). Downstream fish passage is probably limited to the imperfect (64%) FGE associated with the proposed downstream fish passage facility. There is no juvenile passage facility that would be expected to have no adverse effect. However, the baseline condition has no passage facilities, upstream or down. Therefore the proposed action represents an improvement over the environmental baseline. Fine sediment flushing from HHD has a significant potential to take listed chinook. Incidental take due to sediment management and sediment flushing actions are granted for a period of two years, subject to the terms and conditions below. The proposed conservation measures are expected to reduce take to acceptably low levels. The proposed measures include a monitoring element to verify their effects on chinook and or habitat. The adaptive management approach permits future modifications so that the objectives of minimizing adverse affects and improving habitat conditions will be achieved. Case 2:16-cv-00818-JAM-EFB Document 33-3 Filed 05/12/17 Page 3 of 4 20 B. Effect of the Take In this biological opinion, NMFS has determined that the level of anticipated take is not likely to result in jeopardy to the listed species or in destruction or adverse modification of its critical habitat when the reasonable and prudent measures identified as conservation measures are included. The effect of the take is expected to be low and largely unknowable, except for the imperfect FGE for downstream juvenile fish passage. C. Reasonable and Prudent Measures NMFS believes that the following reasonable and prudent measures are necessary and appropriate to minimize take of Puget Sound chinook in the Green River under the proposed action. These reasonable and prudent measures are necessary to the continued operation and maintenance of HHD, with or without the AWSP. 1) The Corps will minimize take by providing upstream fish passage at Tacoma’s headworks dam. 2) The Corps will minimize take by providing downstream fish passage facility at HHD to elevation 1177. The Corps will further minimize take by using the downstream fish passage facility to control downstream water temperature. 3) The Corps will minimize take by allowing large woody debris to pass the HHD. 4) The Corps will minimize take by augmenting gravel downstream of HHD at Palmer and Flaming Geyser. 5) The Corps will minimize take by developing and implementing a sediment management plan. 6) The Corps will minimize take by managing water storage and release at HHD. 7) The Corps will minimize take by monitoring the affects of the action on habitat functions as described in the PBA. 8) The Corps will minimize take through several additional habitat improvement actions. D. Terms and Conditions In order to be exempt from the prohibitions of section 9 of the ESA, the Corps must comply with the following terms and conditions, which implement the reasonable and prudent measures described above. These terms and conditions are non-discretionary. 1) The Corps shall implement RPM #1 by constructing an upstream passage facility at the City of Tacoma’s headworks. The Corps shall operate and monitor the upstream passage facility as described in the PBA and as summarized in the BO. Under the AWSP, that Corp shall use Case 2:16-cv-00818-JAM-EFB Document 33-3 Filed 05/12/17 Page 4 of 4 RATHJE DECLARATION EXHIBIT I Case 2:16-cv-00818-JAM-EFB Document 33-4 Filed 05/12/17 Page 1 of 5 Endangered Species Act Section 7 Consultation Biological Opinion, Unlisted Species Analysis, Section 10 Findings, & Magnuson-Stevens Act Essential Fish Habitat Consultation for proposed issuance of a Section 10 Incidental Take Permit to Grants Pass Irrigation District for Operations at Savage Rapids Dam Agency: National Marine Fisheries Service Consultation Conducted By: National Marine Fisheries Service, Northwest Region Oregon State Habitat Branch Approved: Date: May 4, 2001 Refer to: OSB2001-0083-FFEC Fed Consultation No.2001\00341 Case 2:16-cv-00818-JAM-EFB Document 33-4 Filed 05/12/17 Page 2 of 5 2 NMFS prepared a Final NEPA EA on the HCP, including a response to public comments on the draft EA. This document is available to the public on the NMFS Northwest Region website. This Opinion and Unlisted Species Analysis is based on the latest HCP from GPID (GPID 2001). As well, this analysis is based on information provided in the EA and technical papers prepared prior to the development of the HCP, and various other documents cited in this document. A complete administrative record on this analysis is on file in the NMFS’ Oregon State Habitat Branch Office in Portland, Oregon. Initiation of consultation is considered to have begun on the day that NMFS received the amended HCP application from GPID (January 19, 2001). The objective of this Opinion is to determine whether the proposed action to issue a permit is likely to jeopardize the continued existence of SONC coho salmon, or destroy or adversely modify designated critical habitat for this species. EFH for these species will be evaluated and conservation recommendations provided as needed in this document. The EFH discussion occurs at the end of this document, separate from the ESA consultation. 1.2 Proposed Action Under the proposed action, NMFS would issue a one-year ITP to GPID for continued operation of Savage Rapids Dam and the associated irrigation facilities while GPID pursues federal authorization and funding for the removal of Savage Rapids Dam. The ITP would be based on a Habitat Conservation Plan (HCP) that describes GPID activities for the 2001 irrigation season. Under the HCP, GPID would continue to divert up to 150 cfs of water from the Rogue River at Savage Rapids Dam into GPID’s distribution system. In addition, the GPID Board will make every effort to promote support for dam removal, and secure federal legislation to authorize and fund dam removal. 1.2.1 Facilities Description The Savage Rapids Dam is located on the Rogue River in southwest Oregon at rivermile (RM) 107 about 5 miles east of the city of Grants Pass, Oregon. Savage Rapids Dam is owned and operated by GPID. Its sole purpose is to divert water for irrigation. Fish passage at Savage Rapids Dam has been an issue since the dam was constructed in 1921 by GPID. The concrete structure has a structural height of 39 feet, and a fish ladder was constructed on the north side at the time the dam was completed. A ladder was constructed on the southside in 1934. Rotating fish screens were an initial part of the gravity diversion on the south side. Early attempts to screen the pumping diversion on the north side were unsuccessful and the diversion remained unscreened until 1958. Fish passage improvements made in the late 1970's have helped reduce fish deaths, but fish passage problems continue. Case 2:16-cv-00818-JAM-EFB Document 33-4 Filed 05/12/17 Page 3 of 5 9 fish passage, hydraulics, sediment and pollutant discharge, and the extent of riparian habitat modifications. Indirect effects may occur throughout the watershed where actions described in this Opinion lead to additional activities or affect ecological functions contributing to stream degradation or loss of fish productivity. In this case, the proposed federal action is issuing the ITP. Indirect effects include potential impacts of injury, mortality, and increased stress on fish resulting from longer passage timing associated with the operation of Savage Rapids Dam and its diversion facilities. Mortality has the potential to affect fish production upstream of Savage Rapids Dam. The dam also influences streamflows in the reach downstream of the dam. The action area is defined in Section 1.2.4 of this document. Within the Rogue River watershed, habitat losses that began a century and a half ago have continued. Settlement and agriculture in the dry Rogue valley encouraged over allocation of most of the tributary streams as early as 1900 (Oregon Progress Board 2000). Lower flows, reduced streamside cover, and streambeds shallowed by sediment have raised stream temperatures as much as 10°F in some parts of the Rogue basin. Its steep terrain makes the Klamath Mountains ecoregion particularly susceptible to landslides and debris flows, especially in extensively logged basins. Removal of large trees has exacerbated the natural effects of fire and floods in riparian areas along many rivers. Relatively few large conifers remain within the active flood plain, although historic evidence shows that conifers were once abundant in low gradient valley bottoms and were selectively logged in the 1950s and 1960s. This has limited the amount of large wood fallen into the stream which once created complex channels and buffered riparian areas against erosion from flood events. Measures of aquatic health, such as the proportion of intact riparian vegetation, suggest that extensive past damage may be reversing in some areas though changes in land use practices and habitat restoration. Despite this, native stocks of almost all of the region’s anadromous fish have declined, including SONC coho salmon. Inventories of streams also found aquatic insect communities degraded throughout the area. The Rogue River watershed is experiencing a drier than normal wateryear currently. Normal flows for the Rogue River at Grants Pass is 4,000 fps for this time of year. Current flows are in the 1,500 to 2,000 fps range. 2.1.4 Effects of the Proposed Action 2.1.4.1 Effects on Essential Features Lethal and non-lethal impacts to anadromous salmonids would occur as a result of the issuance of the proposed ITP for the GPID HCP. Implementation of the HCP would result in lethal impacts including mortality of adults and juveniles coho salmon. Non-lethal impacts could include injury to fish and increased metabolic energy costs associated with migrating through the dam and reservoir. Case 2:16-cv-00818-JAM-EFB Document 33-4 Filed 05/12/17 Page 4 of 5 10 The Oregon Department of Fish and Wildlife has estimated that juvenile fish losses of up to 10 percent could be expected at Savage Rapids Dam from predation, and that juvenile fish passage losses from all causes may average 10 to 15 percent. Adult fish passage losses of 10 to 30 percent are possible. The poor design of the fishways likely results in substantial delay and some mortality of adults. Predation losses are possible in the reservoir pool or tailrace due to changing the elevation of water in the pool during irrigation startup and shutdown. Potential predators include cormorants, herons, osprey, mergansers and kingfishers, all commonly observed along the Rogue River. Total mortality of juvenile salmonids related to operation of Savage Rapids Dam is estimated based on the overlap in the timing of migration with the period of dam operation, and by the proportion of flow affected by the dam. All fish entrained into the irrigation canals (both on the north and south side) die because there is no return route to the river. The turbines on the north were not designed to be “fish friendly”, therefore approximately 30% of the entrained fish that pass through them are killed or injured; the number of fish passing through the turbines depends on the flow in the Rogue River and the effectiveness of conservation measures such as the lighting as described below. In addition, approximately half of the fish impinged by the screen die, and there is additional mortality associated with the pump. The addition of forebay lighting to attract fish over the spillway reduces the number of juveniles that are impacted by the dam. A study conducted by GPID in 1998 demonstrated that fish use of the north-side bypass system appeared to drop by 90 % on nights when lighting over the spillway was turned on. There was no increase in fish entrainment on those nights, so the fish apparently passed over the spillway as intended. However, this analysis assumes that all juveniles are migrating at night; at least some percentage must migrate past the dam during the day when the lighting would not provide attraction. The delayed start for diversion at the north turbine is designed to minimize impacts to migrating juvenile coho salmon. The traveling screen bypass trap will be operated at this location to monitor the migration of juvenile coho. If trigger numbers of coho are trapped, then GPID will shut down the diversion for 48 hours. This is designed to minimize mortality and injury to migrating juveniles. To further reduce take to juvenile coho, GPID will operate and maintain brush seals around the screens, and a screen backwash system. The most notable effects of Savage Rapids Dam on adult fish passage in the past have been on spring chinook and steelhead during periods of high flow. When flow exceeds roughly 10,000 cfs, spill occurs over all bays of the dam and the attraction flows into the ladder become difficult for adult fish to locate. This results in a delay of upstream migration until flows recede. High flows also cause problems in the fish ladders because fish tend to jump out and get stranded on the rocks below. Fences have been placed along the ladders to prevent fish from jumping out and being stranded. This does reduce mortality. However, the fencing washes out at high flows which is the same time that some adults get stranded outside the ladders. It is then difficult to replace the fencing at the high flows. Case 2:16-cv-00818-JAM-EFB Document 33-4 Filed 05/12/17 Page 5 of 5 RATHJE DECLARATION EXHIBIT J Case 2:16-cv-00818-JAM-EFB Document 33-5 Filed 05/12/17 Page 1 of 5 Endangered Species Act Section 7 (a)(2) Consultation BIOLOGICAL OPINION and MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT ACT CONSULTATION on the Effects of EWEB’s Carmen-Smith Part 12 Submittal to FERC for Trail Bridge Dam Emergency Spillway Expansion, and Continued Operation of the Carmen-Smith Hydroelectric Project in the McKenzie Subbasin, Oregon on: Upper Willamette River chinook salmon Action Agency: Federal Energy Regulatory Commission Log Number: F/NWR/2003/00074 Consultation Conducted By: NOAA Fisheries Northwest Region Hydropower Division Date Issued: July 21, 2003 Case 2:16-cv-00818-JAM-EFB Document 33-5 Filed 05/12/17 Page 2 of 5 Biological Opinion on Continued Operation of the Carmen-Smith Hydroelectric Project - July 21, 2003 6-1 6. EFFECTS OF THE PROPOSED ACTION 6.1 Methods for Evaluating the Effects Of Proposed Action In step 3 of the jeopardy analysis, NOAA Fisheries evaluates the effects of proposed actions on listed species and their habitat and seeks to answer the question of whether the species can be expected to survive with an adequate potential for recovery if those actions go forward. In section 6.2, NOAA Fisheries compares habitat conditions under the proposed action to properly functioning condition for UWR chinook salmon to determine effects on the viability of the McKenzie subbasin population. NOAA Fisheries then examines the likely effects of the proposed action on the viability of the ESU as a whole. 6.1.1 Methods for Evaluating the Effects of the Proposed Action in the Action Area This section describes the direct and indirect effects of the proposed action on listed salmonids and their habitat. As described in section 5.2, the depressed status of UWR chinook salmon in the action area is due in part to past operation of the Carmen-Smith Project. These effects include lack of access to historical spawning grounds above the projects, which does not appear to have been fully mitigated by the spawning channel below Trail Bridge Dam, and downstream changes in riparian vegetation, floodplain function, large wood processes, sediment transport, channel complexity, and possibly water quality. Effects are described as likely to “impair,” “appreciably reduce,” “retard,” or “NR” (not reduce, retard, or impair) the status of biological requirements. NOAA Fisheries relates project effects to viability by considering effects on the survival or condition of individuals or the populations. For example, reducing project discharge to a level that dewaters redds would kill eggs and larvae, thereby limiting or even decreasing the abundance, productivity, and juvenile outmigrant production of the affected population. Impassible barriers that prevent access to historical habitat would increase the risk of losing the remaining population to some natural or manmade catastrophe (volcanic activity or landslides). 6.1.2 Methods for Evaluating the Effects of the Proposed Action on Biological Requirements at the Species Level The effects of the proposed action in the action area must be evaluated in the context of survival throughout the life cycle and compared with the jeopardy standard described in Chapter 1. In Chapter 5, NOAA Fisheries described the habitat factors limiting the viability of each population in the action area (at risk or not properly functioning). In this chapter, NOAA Fisheries follows this procedure to perform the analyses called for in step 3 in the jeopardy analysis framework: • Determine which of the habitat factors that are at risk or not properly functioning are within the authority of the action agencies for this consultation. • Estimate or describe the change in status of habitat factors that is likely to occur under the Case 2:16-cv-00818-JAM-EFB Document 33-5 Filed 05/12/17 Page 3 of 5 Biological Opinion on Continued Operation of the Carmen-Smith Hydroelectric Project - July 21, 2003 6-2 proposed action (impair, reduce, or retard progress toward properly functioning condition). • Describe the expected status of the surviving demographically independent populations in the action area if the proposed action goes forward. • Determine whether the change in status of populations in the action area would provide the ESU a high likelihood of survival and a moderate to high likelihood of recovery. 6.2 Effects of the Proposed Action on Biological Requirements in the Action Area Biological requirements of the McKenzie subbasin population of spring chinook salmon are not met under the environmental baseline (section 5.2), and operation of EWEB’s Carmen-Smith Project is partially responsible for the degraded condition. The primary effect of the Carmen- Smith Project is that Trail Bridge Dam blocks access to 7 miles of historically productive UWR chinook salmon spawning habitat (section 5.2.3). The spawning channel that EWEB built to mitigate for the lost spawning and rearing habitat has not consistently supported the 150-200 fish for which it was designed. Thus, FERC’s proposed action includes a Conservation Measure for Fish Passage, in which EWEB would identify short-term interim upstream passage measures (i.e., that could potentially be in place by 2006). The scope of the Fish Passage Study would include the potential for injury and mortality of UWR chinook salmon caused by water level fluctuations above Trail Bridge Dam, entrainment in the turbine intake, or while passing over the spillway. This information would inform the resource agencies’ decision to pass UWR chinook salmon above Trail Bridge Reservoir during the interim period, and in the long term after relicensing. Thus, NOAA Fisheries addresses the effects of two possible scenarios on the survival and recovery of UWR chinook salmon: 1) based on the results of the Fish Passage Study, EWEB would provide interim passage; and 2) EWEB would not provide interim passage and UWR chinook salmon continue to spawn and rear in an enhanced spawning channel. 6.2.1 Effects of the Action Without Interim Passage Table 6-1 summarizes the effects of the proposed action on UWR chinook salmon if EWEB does not provide passage above Trail Bridge Dam during the interim period before relicensing. Case 2:16-cv-00818-JAM-EFB Document 33-5 Filed 05/12/17 Page 4 of 5 Biological Opinion on Continued Operation of the Carmen-Smith Hydroelectric Project - July 21, 2003 6-6 ESA. While a lack of passage at Trail Bridge Dam would continue to block UWR chinook salmon from historical habitat, the action proposed by this conservation measure would improve the capacity of the spawning channel so that it would be more likely to accommodate the number of spawners for which it was designed. EWEB would also reclaim and improve side-channel habitat downstream of Trail Bridge Dam, providing additional rearing habitat for juvenile UWR chinook salmon originating within the spawning channel. Flow and Hydrology As discussed in section 5.3, EWEB operates Carmen-Smith Project as a run-of-river project and thus it does not alter the flow regime of the McKenzie River below Trail Bridge Dam. Large Wood, Sediment Transport, and Channel Complexity Approximately 14% of the McKenzie subbasin is blocked by Trail Bridge Dam. Trail Bridge, Smith, and Carmen dams disrupt sediment and large wood dynamics such that the habitat downstream has been simplified. Minear (1994) found that between 1949 and 1986, the number and total length of side channels declined along the mainstem McKenzie River downstream of Trail Bridge Dam (i.e., but upstream of the confluences of the South Fork and Blue River), indicating channel downcutting and abandonment of side channels. In addition, Sedell et al. (1992) found that larger substrates were more abundant in the upper mainstem in 1991 than in 1937, indicating that bedload coarsening has occurred within the action area. These changes are most likely the result of sediment interception by the three-dam Carmen-Smith Project. The loss of large wood results in simplification of stream structure through loss of scour sources, flow deflection, and sediment storage capability. Minear (1994) and WNF MRD (1995) found that simplification of stream structure has occurred in the last several decades downstream of Trail Bridge Dam due to reduced quantities of large wood, channelization by riprap and roads, and alteration of riparian vegetation. The downstream extent of these effects decreases with distance as major undammed tributaries enter the mainstem McKenzie River. For example, Deer, Lost, and Horse creeks all enter the upper mainstem McKenzie River within about 15 miles of Trail Bridge Dam, providing sediment and large wood inputs (WNF MRD 1995, 1997), and thus reducing the effect of the Carmen-Smith Project on these habitat processes. The proposed continued operation of the Carmen-Smith Project is likely to continue degrading the sediment and large wood habitat processes in the upper McKenzie River channel downstream of Trail Bridge Dam. The loss of side channel habitat, streambed coarsening, down- cutting, and reduced large pool habitat reduces available holding, spawning, and rearing habitat for UWR chinook salmon. This effect would continue, and conditions would degrade even further, under the proposed action. To restore habitat to properly functioning condition, FERC proposed that EWEB would reclaim and improve side channel habitat (spawning, rearing, foraging, and over-wintering habitat) for spring chinook salmon and bull trout in the McKenzie River below Trail Bridge Dam. EWEB Case 2:16-cv-00818-JAM-EFB Document 33-5 Filed 05/12/17 Page 5 of 5 RATHJE DECLARATION EXHIBIT K Case 2:16-cv-00818-JAM-EFB Document 33-6 Filed 05/12/17 Page 1 of 6 NMFS Willamette Project Biological Opinion Middle Fork Willamette Effects 5.2 - 5 July 11, 2008 5.2 MIDDLE FORK WILLAMETTE RIVER SUBBASIN: EFFECTS OF THE WILLAMETTE PROJECT PROPOSED ACTION ON UWR CHINOOK SALMON & CRITICAL HABITAT CHINOOK POPULATION & CRITICAL HABITAT Historically, the Middle Fork Willamette Chinook salmon population may have been the largest of all populations in the UWR Chinook salmon ESU. McElhany et al. (2007) have suggested that the Middle Fork subbasin once likely produced tens of thousands of adult spring Chinook. However, recent returns of naturally spawning Chinook salmon have been in the low hundreds within the Middle Fork subbasin (including returns to Dexter trap and Fall Creek trap) and the population is at very high risk of extinction. An array of anthropogenic causes have likely contributed to this decline, but the primary cause of the decline for this population is elimination of nearly all of the historical spawning habitat by the construction of impassable dams low in the basin, and altered water temperature regimes downstream of the dams (Hills Creek, Dexter/Lookout) that cause poor egg survival (McElhany et al. 2007; ODFW 2007b). See the baseline chapter for more information. In general, the Proposed Action includes the following broad on-the-ground actions: Project dams - current configuration, continued operation, and maintenance of Fall Creek, Dexter, Lookout Point, and Hills Creek dams in the Middle Fork Willamette watershed. Flow management - targets for volume and seasonal timing of water released downstream from Fall Creek and Lookout/Dexter dams. SUMMARY OF THE EFFECTS OF THE PROPOSED ACTION The Proposed Action (continued operation of the dams, maintenance of revetments, and hatchery operations) would allow existing adverse conditions for Middle Fork Willamette Chinook salmon to persist: Fish would continue to have limited upstream and downstream passage at Project dams, preventing safe access to historical habitat and limiting spatial distribution (VSP parameter) and access to spawning and rearing habitat (PCEs of critical habitat). Habitat downstream of Project dams would continue to be degraded by lack of sediment and large wood transport, altered flow regimes, and altered water quality below the dams, resulting in continued decline in abundance and productivity. As a result, the Middle Fork Willamette River Chinook salmon population already at very low levels, would continue to decline. Critical habitat would be further degraded. Case 2:16-cv-00818-JAM-EFB Document 33-6 Filed 05/12/17 Page 2 of 6 NMFS Willamette Project Biological Opinion McKenzie Effects 5.3 - 5 July 11, 2008 5.3 MCKENZIE RIVER SUBBASIN: EFFECTS OF THE WILLAMETTE PROJECT PROPOSED ACTION ON UWR CHINOOK SALMON & CRITICAL HABITAT In the McKenzie River subbasin, the only listed anadromous fish species is UWR Chinook salmon. The McKenzie population is a stronghold population for the ESU and still sustains the highest production of natural-origin spring Chinook salmon in the Willamette Basin. The current abundance however is greatly reduced compared to historical levels and the population is at a “moderate” risk of extinction (McElhany et al. 2007). The primary causes for the decline of this population include loss of access to historical spawning and rearing habitat, altered physical and biological conditions downstream of the dams (hydrograph, temperature, flow, recruitment of gravel and woody debris), interbreeding between hatchery and natural-origin Chinook, and unscreened water diversions (Leaburg-Walterville canals). For a full description of the status of the ESU and Environmental Baseline, see Chapters 3 and 4 above. Taking into account the environmental baseline and current status of the McKenzie population, described briefly in the preceding paragraph and in detail within section 4.3, below is an assessment of the effects of the Proposed Action in the McKenzie River subbasin. The Proposed Action includes the following broad on-the-ground actions: Current configuration, continued operation, and maintenance of Cougar Dam on the South Fork McKenzie River and Blue River Dam on Blue River, both in the McKenzie River watershed. Flow Management- volume and seasonal timing of water released from Cougar and Blue River dams. SUMMARY OF THE EFFECTS OF THE PROPOSED ACTION The effects of the Proposed Action on the McKenzie population of Chinook salmon would be continued degradation of habitat downstream of Cougar Dam and restricted access to historical habitat, reducing abundance and productivity of this population and adversely modifying critical habitat. The Proposed Action would continue to: Restrict fish access to historical spawning and rearing habitat; Degrade physical habitat downstream from the dam complex; Decrease fitness and productivity of the population due to excessive hatchery stray rates. Continued operation of the temperature control tower at Cougar Dam would restore normative water temperatures to downstream fish habitat in the South Fork McKenzie and McKenzie rivers, increasing productivity of those UWR Chinook salmon spawning below the dam. Case 2:16-cv-00818-JAM-EFB Document 33-6 Filed 05/12/17 Page 3 of 6 NMFS Willamette Project Biological Opinion South Santiam Effects 5.5 - 5 July 11, 2008 5.5 SOUTH SANTIAM SUBBASIN: EFFECTS OF THE WILLAMETTE PROJECT PROPOSED ACTION ON UWR CHINOOK SALMON & UWR STEELHEAD & CRITICAL HABITAT In the South Santiam subbasin, the population of winter steelhead is currently at “moderate” risk of extinction and the spring Chinook are currently at “very high” risk. The abundance of steelhead and Chinook is much reduced compared to historical levels. The primary causes of the decline for these populations include loss of access to historical spawning and rearing habitat above Foster and Green Peter Dams, altered physical and biological conditions downstream of the dams (hydrograph, temperature, flow, recruitment of gravel and woody debris), interbreeding between hatchery and natural-origin Chinook and steelhead, and degraded habitat conditions associated with land management in the tributaries downstream of Foster Dam (ODFW 2007b). For a full description of the status of the ESU and Environmental Baseline, see Chapters 3 and 4 above. In general, the Proposed Action includes the following actions: Current configuration, continued operation, and maintenance of Foster and Green Peter dams in the South Santiam watershed. Flow Management- volume and seasonal timing of water released downstream from Foster and Green Peter dams. Ramping Rates- targets would be intended to limit down-ramp rates below Foster and Green Peter dams to no greater than 0.1 ft/hr at night and to no greater than 0.2 ft/hr during the daytime. SUMMARY OF THE EFFECTS OF THE PROPOSED ACTION The effects of the Proposed Action on South Santiam populations of UWR Chinook salmon and UWR steelhead would be to continue to reduce abundance, productivity, spatial distribution, and diversity of these populations and to adversely modify critical habitat. The primary effects would include: Continued prevention of fish access to historic habitat above Project dams Continued degradation of water quality and physical habitat elements downstream from Project dams Continued loss of floodplain connectivity and off-channel habitat due to continued existence and maintenance of 1.82 miles of revetments Continued risks and potential benefits associated with the South Santiam Hatchery Chinook and steelhead programs Continued loss of streamflow through the Reclamation irrigation water contract program. Case 2:16-cv-00818-JAM-EFB Document 33-6 Filed 05/12/17 Page 4 of 6 NMFS Willamette Project Biological Opinion North Santiam Effects 5.6 - 5 July 11, 2008 5.6 NORTH SANTIAM SUBBASIN: EFFECTS OF THE WILLAMETTE PROJECT PROPOSED ACTION ON UWR CHINOOK SALMON & UWR STEELHEAD & CRITICAL HABITAT Introduction The North Santiam River subbasin supports a population of UWR steelhead and also one of UWR Chinook salmon. The population of winter steelhead is currently at “moderate” risk of extinction. Spring Chinook are currently at “very high” risk of extinction. The abundance of steelhead and Chinook is currently much reduced compared to historic levels. The primary causes of the decline for these populations include loss of access to historical spawning and rearing habitat above Big Cliff and Detroit Dams, altered physical and biological conditions downstream of the dams (hydrograph, temperature, flow, recruitment of gravel and woody debris), interbreeding between hatchery and natural-origin Chinook and steelhead, and degraded habitat conditions associated with land management in the tributaries downstream of Big Cliff Dam (ODFW 2007b). For a full description of the status of the ESU and environmental baseline, see Chapters 3 and 4. The Proposed Action includes the following broad actions: Project dams: continued operation and maintenance under existing configuration of Big Cliff and Detroit dams in the North Santiam subbasin. Flow Management- targets for volume and seasonal timing of water released downstream from Big Cliff and Detroit dams. Ramping Rates- targets that control how quickly water releases from Big Cliff and Detroit dams are increased or decreased, with the intent of limiting maximum nighttime downramp rates to 0.1 ft/hr and maximum daytime downramp rates to 0.2 ft/hr. SUMMARY OF THE EFFECTS OF THE PROPOSED ACTION The effects of the Proposed Action on North Santiam populations of UWR Chinook salmon and UWR steelhead would be substantially the same as NMFS determined in its baseline analysis, that Chinook and steelhead ESUs would continue to decline and critical habitat would continue to be adversely modified. The Proposed Action would continue to: prevent fish access to historical spawning and rearing habitat degrade water quality and physical habitat elements downstream from the dam complex reduce streamflow through the Reclamation irrigation water contract program create risks and potential benefits associated with the North Santiam Hatchery Chinook and steelhead programs Case 2:16-cv-00818-JAM-EFB Document 33-6 Filed 05/12/17 Page 5 of 6 NMFS Willamette Project Biological Opinion Mainstem Effects 5.10 - 3 July 11, 2008 5.10 MAINSTEM WILLAMETTE RIVER: EFFECTS OF THE WILLAMETTE PROJECT PROPOSED ACTION ON UWR CHINOOK SALMON, UWR STEELHEAD, LCR CHINOOK SALMON, LCR STEELHEAD, LCR COHO SALMON & INTERIOR SPECIES USING THE MAINSTEM WILLAMETTE RIVER In this section, the mainstem Willamette River is considered in two geographical reaches: above Willamette Falls (Falls) at RM 26.6 upstream to the confluence of the Coast Fork and Middle Fork Willamette rivers, and below the Falls downstream to the mouth at the confluence with the Columbia River. Although there are no separate populations of listed salmonids designated for the mainstem Willamette River, all of the salmonid populations and ESUs considered in this Opinion use these reaches to varying extents for parts of their life cycles and are potentially affected by the Proposed Action in these reaches. Table 5.10-1 identifies which reaches of the mainstem Willamette are used by each population. SUMMARY OF THE EFFECTS OF THE PROPOSED ACTION The effects of the Proposed Action in the mainstem Willamette River on populations of UWR Chinook salmon and UWR steelhead above the Falls will be that baseline conditions will generally continue, causing further decline in these populations. The Proposed Action will continue to: Reduce the frequency and magnitude of peak flows, reducing floodplain connectivity, riparian forests, and habitat complexity in the mainstem Willamette River above the Falls, and to a lesser extent near the mouth. Eliminate sediment and large wood transport from 27% of the watershed and restrict channel movement with revetments, degrading substrate, large wood, and channel complexity in the mainstem Willamette above the Falls, and to a lesser extent near the mouth. Improve water quality in the mainstem Willamette above and below the Falls, by maintaining flows at Salem, Oregon to meet NPDES standards and by maintaining spring flows at Willamette Falls of around 15,000 cfs (see Table 5.10-2) to provide safe passage for steelhead smolts. For populations of UWR chinook and steelhead below the Falls, as well as LCR chinook, coho salmon, and steelhead and Interior species that may use the lower Willamette River near the mouth for rearing and holding, the Proposed Action may harm individual fish by continuing to degrade rearing and holding habitat, but not to the extent that NMFS expects effects at the population level for any of these populations. Case 2:16-cv-00818-JAM-EFB Document 33-6 Filed 05/12/17 Page 6 of 6 [Proposed] ORDER 1 Case No. 2:16-cv-00818-JAM-EFB 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 Christopher A. Sproul (Bar No. 126398) Environmental Advocates 5135 Anza Street San Francisco, California 94121 Telephone: (415) 533-3376 Facsimile: (415) 358-5695 Email: csproul@enviroadvocates.com Patricia Weisselberg (Bar No. 253015) Law Office of Patricia Weisselberg 115 Oakdale Avenue Mill Valley, CA 94941 Telephone: (415) 388-2303 Email: pweisselberg@wans.net Attorneys for Plaintiff FRIENDS OF THE RIVER UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRIENDS OF THE RIVER, a non-profit corporation, Plaintiff, v. NATIONAL MARINE FISHERIES SERVICE, et al., Defendants. Case No. 2:16-cv-00818-JAM-EFB [PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Case 2:16-cv-00818-JAM-EFB Document 33-7 Filed 05/12/17 Page 1 of 4 [Proposed] ORDER 2 Case No. 2:16-cv-00818-JAM-EFB 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 Having considered the memoranda and evidence, and good cause appearing, the Court HEREBY ORDERS that Plaintiffs’ Motion for Summary Judgment is GRANTED. The Plaintiff is granted declaratory judgment that: 1. The U.S. Army Corps of Engineers (“the Corps”) is in ongoing violation of its procedural duty under Endangered Species Act § 7(a)(2), 16 U.S.C. § 1536(a)(2), to consult with the National Marine Fisheries Service (“NMFS”) concerning the impacts of "operations associated with Englebright and Daguerre Point Dams on the Yuba River in Yuba and Nevada Counties, CA" and the Corps' "issuance of permits, licenses and easements to non-Federal entities for their operations of water diversions and hydroelectric facilities at or near the dams" (collectively, "the Action") on the Evolutionarily Significant Unit of Central Valley Spring-run Chinook Salmon (“Spring Chinook”); the Distinct Population Segment of Central Valley Steelhead (“Steelhead”); and the Southern Distinct Population Segment of North American Green Sturgeon (“Green Sturgeon”) (collectively, the "Listed Species"). See South Yuba River Citizens League v. NMFS, 723 F. Supp. 2d 1247, 1253 (E.D. Cal. 2010) (quoting from NMFS biological opinion description of the Corps "action" for purposes of ESA § 7 consultation). 2. The definition of the Corps' Action, Effects of the Action, and Action Area in the Corps biological assessment for Englebright issued on October 22, 2013 ("2013 Englebright BA"), which incorporates the 2013 Daguerre biological assessment, and the Englebright BA's conclusion that the Action is not likely to adversely affect the Listed Species in the Yuba River is arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law. 3. The NMFS biological opinion for Daguerre issued on May 12, 2014 ("2014 BiOp") is arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law. 4. The NMFS letter of concurrence ("LOC") issued on May 12, 2014 concurring in the Corps’ conclusion in the 2013 Englebright BA that the Corps need not conduct formal consultation over Englebright LOC is arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law. 5. The Corps has a mandatory duty to request reinitiation of consultation with NMFS concerning the Action pursuant to ESA § 7(a)(2). Case 2:16-cv-00818-JAM-EFB Document 33-7 Filed 05/12/17 Page 2 of 4 [Proposed] ORDER 3 Case No. 2:16-cv-00818-JAM-EFB 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 6. NMFS has a mandatory duty to request that the Corps reinitiate consultation with NMFS concerning the Action pursuant to ESA § 7(a)(2). 7. The Corps is in violation of its substantive ESA § 7(a)(2) duty to ensure that the Action does not jeopardize the Listed Species as the Action is jeopardizing the continued survival and recovery of the Listed Species and is adversely modifying the Listed Species' critical habitat. 8. The Corps has caused and is continuing to cause take of the Listed Species in violation of ESA § 9 due to the harms to the Listed Species caused by Englebright and Daguerre. 9. The Corps has "cause[d] to be committed" and is continuing to "cause to be committed" take of the Listed Species in violation of ESA § 9 due to its authorization via easements, licenses, and contracts of the following facilities: the Yuba County Water Agency ("YCWA")’s Narrows 2 Powerhouse ("Narrows 2"), Pacific Gas and Electric Company ("PG&E")’s Narrows 1 Powerhouse ("Narrows 1"), and Hallwood-Cordua Irrigation District ("Cordua")’s Diversion ("Cordua Diversion"). The Court further orders as follows: 10. The 2013 Englebright BA, the LOC, and the 2014 BiOp are hereby vacated, and the NMFS biological opinion issued for the Action February 29, 2012 ("2012 BiOp") is hereby reinstated. The 2012 BiOp shall remain effective until such time as NMFS issues a new biological opinion for the Action. 11. The Corps is ordered to send a request to NMFS to reinitiate consultation pursuant to ESA § 7 concerning the Action within thirty days of the date of this Order. 12. Within 120 days of the date of this Order, the Corps shall submit a new biological assessment to NMFS outlining the Action and the effects of that Action on the species in accord with 16 U.S.C. § 1536(c); 50 C.F.R. § 402.12. 13. NMFS shall proceed expeditiously to issue a new biological opinion (and by no later than eight months from the date of this Order) for the Action that uses the best scientific information available, and thoroughly considers all important aspects of the problem. SYRCL v. NMFS, No. 06-2845, 2011 U.S. Dist. LEXIS 49164, at *6-*13 (April 28, 2011) (ordering NMFS to complete new biological opinion Case 2:16-cv-00818-JAM-EFB Document 33-7 Filed 05/12/17 Page 3 of 4 [Proposed] ORDER 4 Case No. 2:16-cv-00818-JAM-EFB 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 within seven and a half months of court order setting aside previous NMFS biological opinion for the Action). 14. Within 60 days of the date of this Order, the Corps shall submit to NMFS, the Plaintiff, and the Court a plan for implementation of the Reasonable and Prudent Alternative measures identified in the 2012 BiOp as are necessary to avoid jeopardy to the survival and recovery of the Listed Species and jeopardy to the Listed Species' critical habitat pending completion of the new biological opinion referred to in paragraph 12. 15. Within 30 days of receiving the plan referred to in the preceding paragraph, NMFS and the Plaintiff shall confer in good faith concerning the Corps’ plan prepared pursuant to paragraph 14 and shall submit comments to the Court concerning whether the plan proposes reasonable measures and reasonable deadlines for completion of measures necessary to avoid jeopardy to the Listed Species and adverse modification of their critical habitat. NMFS shall specifically indicate in its comments its conclusions as to what measures in the plan or other measures the Corps should implement to avoid jeopardy to the survival and recovery of the Listed Species or adverse modification of the Listed Species' critical habitat pending completion of the new biological opinion referred to in paragraph 12. 16. The Corps shall promptly commence implementation, as an order of this Court, of any measures that it has proposed in the plan that NMFS concurs with. The Corps shall further implement any additional measures identified by NMFS pursuant to paragraph 14 unless the Corps promptly seeks and this Court grants relief from such obligation. 17. If the Plaintiff contends that additional measures are required to avoid jeopardy to the Listed Species or adverse modification of their critical habitat beyond those jointly proposed by the Corps and NMFS pursuant to paragraphs 14 and 15, the Plaintiff shall submit a motion for additional injunctive relief within 60 days of receiving the plan referred to in paragraph 14. Dated: ______________ _______________________________________ John A. Mendez United States District Court Judge Case 2:16-cv-00818-JAM-EFB Document 33-7 Filed 05/12/17 Page 4 of 4