Lemieux And Oneill, EX Rel. Las Virgenes-Triunfo Joint Powers Authority v. Gina Mccarthy et Al.NOTICE OF MOTION AND MOTION for Summary JudgmentC.D. Cal.December 2, 2016 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 EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section, Civil Division JUSTIN A. OKUN (Cal. Bar No. 230954) Assistant United States Attorney Federal Building, Suite 7516 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 894-7354 Facsimile: (213) 894-7819 E-mail: Justin.Okun@usdoj.gov Attorneys for Defendant United States Environmental Protection Agency UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA LEMIEUX & O’NEILL, EX REL. LAS VIRGENES – TRIUNFO JOINT POWERS AUTHORITY, a public agency, Plaintiff, v. GINA McCARTHY, Administrator of the UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; and DOES 1-10, inclusive, Defendants. No. CV 16-00570 AB (Ex) DEFENDANT UNITED STATES ENVIRONMENTAL PROTECTION AGENCY’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Hearing on Motion Date: January 30, 2017 Time: 10:00 a.m. Place: Courtroom 4 – Spring Street Honorable André Birotte Jr. United States District Judge Case 2:16-cv-00570-AB-E Document 29 Filed 12/02/16 Page 1 of 29 Page ID #:177 i 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. BACKGROUND ..................................................................................................... 2 A. Las Virgenes’ Underlying Actions in the Northern District of California ....................................................................................................... 2 B. FOIA Request and Complaint ....................................................................... 5 III. DISCUSSION .......................................................................................................... 7 A. FOIA .............................................................................................................. 8 B. Legal Standard ............................................................................................... 8 C. The EPA properly asserted Exemption 5 of FOIA ..................................... 10 1. Plaintiff’s FOIA request is an attempt to circumvent Judge Armstrong’s ruling denying Las Virgenes additional discovery and Las Virgenes’ subsequent stipulation not to seek additional discovery ........................................................................................... 10 2. The Deliberative Process Privilege Protects Documents Redacted and Withheld by EPA ....................................................... 12 3. EPA Has Released All Reasonably Segregable Portions Of Records Withheld Under Exemption 5. ............................................ 20 IV. CONCLUSION ...................................................................................................... 21 Case 2:16-cv-00570-AB-E Document 29 Filed 12/02/16 Page 2 of 29 Page ID #:178 ii 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 Federal Cases Alaska Ctr. for the Env’t v. Browner, 20 F.3d 981 (9th Cir. 1994) .......................................................................................... 2 Animal Legal Def. Fund v. FDA, 686 F.3d 1102 (9th Cir. 2016) ...................................................................................... 9 Animal Legal Def. Fund v. FDA, 819 F.3d 1102 (9th Cir. 2016) ............................................................................... 8-9, 9 Assembly of Cal. v. U.S. Dep’t of Commerce, 968 F.2d 916 (9th Cir. 1992) ...................................................................................... 13 Baldrige v. Shapiro, 455 U.S. 345 (1982) ................................................................................................... 11 Bay Area Lawyers All. for Nuclear Arms Control v. Dep’t of State, 818 F. Supp. 1291 (N.D. Cal. 1992) .......................................................................... 10 Carter v. U.S. DOC, 307 F.3d 1084 (9th Cir. 2002) .................................................................................... 13 Chem. Mfrs. Asso. v. Consumer Prod. Safety Com., 600 F. Supp. 114 (D.D.C. 1984) ................................................................................ 15 Citizens for Responsibility & Ethics v. U.S. Dep’t of Homeland Sec., 514 F. Supp. 2d 36 (D.D.C. 2007) ............................................................................. 16 Citizens Progressive All. v. U.S. BIA, 241 F. Supp. 2d 1342 (D.N.M. 2002) ................................................................. passim Cleary, Gottlieb, Steen & Hamilton v. Dep’t of Health & Human Servs., 844 F. Supp. 770 (D.D.C. 1993) .................................................................................. 7 Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854 (D.C. Cir. 1980) ............................................................................. 13, 14 Comer v. IRS, No. 97-CV-76329, 2000 U.S. Dist. LEXIS 19981 (E.D. Mich. Oct. 5, 2000) .... 11, 12 Council v. Powell, 395 F.3d 1019 (9th Cir. 2005) ...................................................................................... 4 Case 2:16-cv-00570-AB-E Document 29 Filed 12/02/16 Page 3 of 29 Page ID #:179 iii 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 Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930 (9th Cir. 2006) ........................................................................................ 5 DOI v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001) ..................................................................................... 12, 13, 14, 16 Dudman Commc’ns Corp. v. Dep’t of Air Force, 815 F.2d 1565 (D.C. Cir. 1987) ............................................................................ 13-14 Exxon Corp. v. Dep’t of Energy, 585 F. Supp. 690 (D.D.C. 1983) ................................................................................ 14 FBI v. Abramson, 456 U.S. 615 (1982) ..................................................................................................... 8 Hamdan v. U.S. DOJ, 797 F.3d 759 (9th Cir. 2015) .................................................................................... 6, 9 Homer J. Olsen v. U.S. DOT Fed. Transit Admin., No. C 02-00673 WHA, 2002 U.S. Dist. LEXIS 23292 (N.D. Cal. Nov. 22, 2002) .... 7 Hornbostel v. Dep’t of the Interior, 305 F. Supp. 2d 21 (D.D.C. 2003) ............................................................................. 15 Hunt v. CIA, 981 F.2d 1116 (9th Cir. 1992) ...................................................................................... 9 Irons v. Bell, 596 F.2d 468 (1st Cir. 1979) ...................................................................................... 11 John Doe Agency v. John Doe Corp., 493 U.S. 146 (1989) ............................................................................................... 8, 10 Jordan v. U.S. DOJ, 591 F.2d 753 (D.C. Cir. 1978) ................................................................................... 13 Judicial Watch, Inc. v. U.S. Postal Serv., 297 F. Supp. 2d 252 (D.D.C. 2004) ........................................................................... 10 Klunzinger v. IRS, 27 F. Supp. 2d 1015 (W.D. Mich. 1998) .................................................................... 15 Kortlander v. BLM, 816 F. Supp. 2d 1001 (D. Mont. 2011) ................................................................ 13, 14 Lewis v. IRS, 823 F.2d 375 (9th Cir. 1987) ...................................................................................... 10 Case 2:16-cv-00570-AB-E Document 29 Filed 12/02/16 Page 4 of 29 Page ID #:180 iv 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 Lion Raisins, Inc. v. USDA, 354 F.3d 1072 (9th Cir. 2004) ................................................................................ 9, 10 Maricopa Audubon Soc’y v. U.S. Forest Serv., 108 F.3d 1089 (9th Cir. 1997) .................................................................................... 14 Martinez v. EEOC, No. Civil Action No: SA-04-CA-0391-XR, 2004 U.S. Dist. LEXIS 23182 (W.D. Tex. Oct. 19, 2004) ....................................................................................................... 11, 12 Meeropol v. Meese, 790 F.2d 942 (D.C. Cir. 1986) ..................................................................................... 9 Minier v. CIA, 88 F.3d 796 (9th Cir. 1996) .......................................................................................... 9 Mobil Oil Corp. v. U.S. EPA, 879 F.2d 698 (9th Cir. 1989) ...................................................................................... 14 Nat’l Wildlife Fed’n v. U.S. Forest Serv., 861 F.2d 1114 (9th Cir. 1988) .............................................................................. 13, 14 Nevada v. U.S. DOE, 517 F. Supp. 2d 1245 (D. Nev. 2007) ........................................................................ 14 NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978) ............................................................................................... 8, 10 NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) ............................................................................................. 12, 15 Pac. Fisheries, Inc. v. United States, 539 F.3d 1143 (9th Cir. 2008) .................................................................................... 20 Pickard v. DOJ, 653 F.3d 782 (9th Cir. 2011) ........................................................................................ 8 Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1 (1974) ....................................................................................................... 11 Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168 (1975) ................................................................................................... 13 Rugiero v. U.S. DOJ, 257 F.3d 534 (6th Cir. 2001) ...................................................................................... 10 Case 2:16-cv-00570-AB-E Document 29 Filed 12/02/16 Page 5 of 29 Page ID #:181 v 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 S.F. Baykeeper, 297 F.3d 877 ................................................................................................................. 3 Sakamoto v. U.S. EPA, 443 F. Supp. 2d 1182 (N.D. Cal. 2006) ..................................................................... 16 Scott v. Hammond, 741 F.2d 992 (7th Cir. 1984) ........................................................................................ 2 Shannahan v. IRS, 672 F.3d 1142 (9th Cir. 2012) ................................................................................ 9, 15 Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443 (9th Cir. 1996) .............................................................................. 4, 5, 6 U.S. DOJ v. Reporters Comm. for Freedom of Press, 489 U.S. 749 (1989) ................................................................................................... 10 United States v. Weber Aircraft Corp., 465 U.S. 792 (1984) ................................................................................................... 12 Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) ............................................................................. 6, 7, 9 Wiener v. FBI, 943 F.2d 972 (9th Cir. 1991) ........................................................................................ 6 Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007) ............................................................................. 10, 15 Zemansky v. EPA, 767 F.2d 569 (9th Cir. 1985) ........................................................................................ 9 Federal Statutes 5 U.S.C. § 552(a)(3)(A) .................................................................................................... 8 5 U.S.C. § 552(a)(4)(B) ................................................................................................. 8, 9 5 U.S.C. § 552(a)(4)(B), (f)(1) .......................................................................................... 1 5 U.S.C. § 552(b) ....................................................................................................... 10, 20 5 U.S.C. § 552(b)(1)-(9) ................................................................................................... 8 5 U.S.C. § 552(b)(4)........................................................................................................... 6 5 U.S.C. § 552(b)(5) ................................................................................................ 1, 6, 12 5 U.S.C. § 552(b)(6)........................................................................................................... 6 Case 2:16-cv-00570-AB-E Document 29 Filed 12/02/16 Page 6 of 29 Page ID #:182 vi 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. § 1313(d) ........................................................................................................... 2 33 U.S.C. § 1313(d)(1)(A) ................................................................................................. 3 Federal Rules of Civil Procedure Fed. R. Civ. P. 56(a) .......................................................................................................... 9 Case 2:16-cv-00570-AB-E Document 29 Filed 12/02/16 Page 7 of 29 Page ID #:183 vii 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 AND MOTION FOR SUMMARY JUDGMENT PLEASE TAKE NOTICE that on January 30, 2017, at 10:00 a.m., or as soon thereafter as may be heard, Defendant United States Environmental Protection Agency (“EPA”) will, and hereby does, move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. This Motion will be made in Courtroom 4 of the United States Courthouse located at 312 North Spring Street in Los Angeles, California. This Motion is based on this Notice of Motion and Motion, the attached Memorandum of Points and Authorities, Statement of Uncontroverted Facts and Conclusions of Law, the concurrently filed Declarations of Justin A. Okun and Janet Hashimoto, and such other evidence and argument as may be presented at the time of hearing. The sole issue for the Court is whether certain records or portions of records withheld by the EPA in response to Plaintiff’s Freedom of Information Act (“FOIA”) request were properly withheld under Exemption 5 of the FOIA, which permits an agency to withhold documents covered by the deliberative process privilege. 5 U.S.C. § 552(b)(5). This Motion is made following the conference of counsel pursuant to Local Rule 7-3, which was held over the course of September 29 through November 29, 2016. Dated: December 2, 2016 Respectfully submitted, EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section, Civil Division /s/ Justin A. Okun Assistant United States Attorney Attorneys for Defendant United States Environmental Protection Agency Case 2:16-cv-00570-AB-E Document 29 Filed 12/02/16 Page 8 of 29 Page ID #:184 1 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 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This action pertains to a Freedom of Information Act (“FOIA”) request that plaintiff Lemieux & O’Neill (“Lemieux”), a law firm, on behalf of its client Las Virgenes – Triunfo Joint Powers Authority (“Las Virgenes”), a public agency, (collectively, “Plaintiff”) submitted to defendant United States Environmental Protection Agency (“EPA” or “Agency”).1 Plaintiff’s request seeks disclosure of records and correspondence for the period of 2010-14 related to the “Malibu Creek and Lagoon Total Maximum Daily Load for Sedimentation and Nutrients to Address Benthic Community Impairments” (the “2013 TMDL”). Plaintiff’s FOIA request is related to an underlying action Las Virgenes, represented by Lemieux, brought against the EPA challenging the EPA’s establishment of the 2013 TMDL. See Las Virgenes – Triunfo Joint Powers Authority v. Gina McCarthy, EPA Administrator, No. C 14-01392 SBA (N.D. Cal.) (“Las Virgenes”). Cross-motions for summary judgment were entered in that case and the United States District Court for the Northern District of California denied Las Virgenes’ motion and granted the EPA’s motion. Order, Dkt. 88; Id. Las Virgenes filed an appeal, which is currently pending before the Ninth Circuit. Id., No. 16-15327 (9th Cir.). Plaintiff’s FOIA request was made not quite two months after Las Virgenes stipulated in that related action not to seek discovery in the district court case. Stip., Dkt. 62, Id., No. C 14-01392 SBA. In response to Plaintiff’s FOIA request, EPA conducted a search reasonably calculated to locate all responsive records. Further, EPA has released all responsive 1 In addition to the EPA, Plaintiff named Gina McCarthy, in her official capacity as Administrator of the EPA, as a defendant as well as unnamed DOES 1-10 as defendant. However, government agencies, not government employees or private individuals, are the only proper defendants in a suit under the FOIA. 5 U.S.C. §552(a)(4)(B) and (f)(1). Accordingly, the EPA is the only proper defendant in this action. Case 2:16-cv-00570-AB-E Document 29 Filed 12/02/16 Page 9 of 29 Page ID #:185 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 records to Plaintiff except for certain records or portions of records withheld on the basis of statutory exemptions. EPA’s application of these exemptions was appropriate, and the Agency released all reasonably segregable information. Accordingly, the Court should grant summary judgment in favor of EPA. II. BACKGROUND A. Las Virgenes’ Underlying Actions in the Northern District of California “A TMDL is ‘the maximum quantity of water pollutant [a] water body can receive on a daily basis without violating [] water quality standard[s].’” Order, Dkt. 88 at 3, Id. (quoting San Francisco BayKeeper v. Whitman, 297 F.3d 877, 880 (9th Cir. 2002)). “Under the [Clean Water Act], a State must submit . . . TMDLs to the EPA for approval.” Id. (citing 33 U.S.C. § 1313(d)(2)). The EPA must then approve or disapprove the TMDL and, if it disapproves, must “establish such TMDLs as it deems necessary to implement water quality standards.” Id. at 3-4 (citing 33 U.S. § 1313(d)(2); City of Arcadia v. EPA, 411 F.3d 1103, 1105 (9th Cir. 2005)). In Heal the Bay v. McCarthy, No. C 98-4825 SBA (N.D. Cal.) (“Heal the Bay”), environmental groups filed a complaint in the Northern District of California alleging that California had continually failed to submit TMDLs for the Los Angeles Region since 1979 and that the EPA therefore had a duty to establish TMDLs for the Region. Order, Dkt. 88 at 4, Las Virgenes (citing Compl., Dkt. 1, Heal the Bay). In some circumstances, courts have identified a State’s persistent failure to submit TMDLs to EPA for approval as a “constructive submission” of no TMDLs, giving rise to a duty on the part of EPA’ under 33 U.S.C. 1313(d) to establish the TMDLs in question itself. See, e.g., Scott v. City of Hammond, 741 F.2d 992, 996-97 (7th Cir. 1984); Alaska Ctr. For the Env’t v. Browner, 20 F.3d 981, 984-85 (9th Cir. 1994). On March 23, 1999, the court in Heal the Bay entered a Consent Decree in which the EPA agreed to ensure that a TMDL would be completed for each and every pairing of a water quality limited Case 2:16-cv-00570-AB-E Document 29 Filed 12/02/16 Page 10 of 29 Page ID #:186 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 segment (“WQLS”)2 and an associated pollutant in the Los Angeles Region. Las Virgenes (citing Consent J., ¶ 3, Dkt. 25, Heal the Bay). On March 21, 2003, in accordance with the Consent Decree, the EPA established a TMDL (the “2003 TMDL”) that set numeric targets for the pollutants nitrogen and phosphorous in Malibu Creek, the pollutants primarily responsible for excessive algae and scum. Id. at 5. On September 2, 2010, the Heal the Bay Court entered an order approving a stipulation to modify the Consent Decree to allow for modification of the 2003 TMDL to address benthic- macroinvertebrate (“BMI”) bioassessments and sedimentation in Malibu Creek. Id. On December 12, 2012, the EPA issued a public notice soliciting comment on a draft TMDL to address sedimentation and BMI impairment in Malibu Creek. Id. Las Virgenes submitted comments regarding the draft, the EPA reviewed and responded to all comments, modified the TMDL, and on July 2, 2013, established the 2013 TMDL, setting revised numerical targets for nitrogen and phosphorous. Id. at 5-6.3 Shortly after EPA established the 2013 TMDL, on September 19, 2013, Las Virgenes brought suit in the Central District of California seeking to “withdraw and cancel” the 2013 TMDL alleging that the EPA lacked authority to establish the 2013 TMDL, that the 2013 TMDL was an improper revision of the 2003 TMDL, that the EPA failed to allow sufficient public comment on the 2013 TMDL, that the 2013 TMDL constituted an abuse of discretion, and that the 2013 TMDL violated the Clean Water Act. Id. at 6-7. On March 4, 2014, District Judge Dale S. Fischer sua sponte transferred the case to the Northern District of California finding it related to Heal the Bay. Order, Dkt. 33, Id. 2 A WQLS is water within a State’s boundaries for which effluent limitations are not sufficiently stringent to meet applicable standards. Order, Dkt. 88 at 3, Las Virgenes (citing 33 U.S.C. § 1313(d)(1)(A); BayKeeper, 297 F.3d at 880). 3 Las Virgenes also filed a motion to intervene in Heal the Bay challenging the district court’s subject-matter jurisdiction to enter and amend the Consent Decree. This motion was denied and the denial affirmed by the Ninth Circuit. Heal the Bay, 15- 15663, Dkt. 57-1 (9th Cir.) Case 2:16-cv-00570-AB-E Document 29 Filed 12/02/16 Page 11 of 29 Page ID #:187 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On July 22, 2014, Las Virgenes wrote a letter to District Judge Saundra Brown Armstrong seeking documents and records regarding the establishment of the 2013 TMDL that were outside the administrative record. Ltr. to Court, Dkt. 51, Id. On August 6, 2014, the court issued an order directing Las Virgenes to meet and confer with the EPA on the issue and file an appropriate discovery motion if warranted. Order, Dkt. 54, Id. On August 22, 2014, Las Virgenes wrote a letter to counsel for the EPA stating that it sought, among other documents allegedly not included in a draft administrative record provided to Las Virgenes, comments from entities regarding the draft 2013 TMDL, peer review comments regarding the draft 2013 TMDL, reports prepared by contractors for the EPA regarding the 2013 TMDL, and “drafts and deliberative documents” regarding the 2013 TMDL. Ltr. to Counsel, Dkt. 55-2, Id. On August 26, 2014, Las Virgenes filed a motion seeking to continue the deadline for filing a discovery motion. Motion, Dkt. 55, Id. On October 15, 2014, the court denied Las Virgenes’ motion finding that it has “failed to demonstrate that an extension of time to file a discovery motion is appropriate” as “[j]udicial review of an agency’s decision typically focuses on the administrative record in existence at the time of the decision and does not encompass any part of the record that is made initially in the reviewing court.” Order, Dkt. 61 at 3, Id. (citing Southwest Center for Biological Diversity v. U.S. Forest Service, 100 F.3d 1443, 1450 (9th Cir. 1996)). The court noted that “[w]hile there are narrow exceptions to this general rule that allow a district court to admit extra-record evidence,” Las Virgenes had “not shown that any of the exceptions appl[ied].” Id. In particular, Las Virgenes did “not identify any ‘holes’ in the administrative record that [could] be ‘plugged’ through discovery” and had failed previously “to articulate a basis for why discovery [was] appropriate” in the case despite having had “ample time to review the administrative record.” Id. at 3-4 (citing Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005)). Two weeks later, on October 28, 2014, Las Virgenes filed a joint stipulation in which it stated that it would “not seek discovery in this action.” Joint Stip., Dkt. 62, Id. Case 2:16-cv-00570-AB-E Document 29 Filed 12/02/16 Page 12 of 29 Page ID #:188 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On February 1, 2016, applying the deferential standard of the Administrative Procedure Act (“APA”), the court in Las Virgenes denied Las Virgenes’ motion for summary judgment and granted the EPA’s motion for summary judgment finding, inter alia, that the EPA did not lack authority to establish the 2013 TMDL, allowed sufficient public comment, and did not abuse its discretion. Order, Dkt. 88, Id. In issuing its order, the Court noted that Las Virgenes initially attempted to submit three declarations in support of its motion for summary judgment but later withdrew the declarations as “under the APA, a court generally restricts its review to the administrative record.” Id. at 8-9 (citing Ctr. For Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 943 (9th Cir. 2006)). B. FOIA Request and Complaint On January 20, 2015, three months after Judge Armstrong ruled that Las Virgenes had failed to articulate a basis as to why discovery was appropriate in the underlying case, and after Las Virgenes stipulated not to seek discovery outside of the administrative record, Lemieux emailed a FOIA request to the EPA seeking “records and correspondence” between the EPA and “(1) consultants; (2) contractors and subcontractors; (3) nonpublic entities; (4) public entities and joint power authorities; (5) non-governmental organizations; (6) academic institutions; and (7) the general public for the period between 2010 and 2014, in connection with the ‘Malibu Creek and Lagoon TMDL for Sedimentation and Nutrients to Address Benthic Community Impairments’ established by the EPA in 2013 (‘2013 TMDL’).” Declaration of Janet Hashimoto (“Hashimoto Decl.”) ¶ 2; Dkt. 1-1, 1-2. Lemieux specifically stated that it was “not requesting records and correspondence which have been included in the Administrative Record prepared for Las Virgenes – Triunfo Joint Powers Authority v. E.P.A., et al. U.S.D.C. Case No. C 14-01392 SBA.” Id. After the FOIA request was received, EPA identified the custodians who might possess records responsive to Plaintiff’s request. Hashimoto Decl. ¶ 4. Other than one physical document, which was subsequently provided to Plaintiff, EPA determined that Case 2:16-cv-00570-AB-E Document 29 Filed 12/02/16 Page 13 of 29 Page ID #:189 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 all other responsive documents were contained in email files of the identified custodians and conducted a search of the relevant email systems. Id. ¶¶ 5-7. The search results were then personally reviewed by an EPA attorney. Id. ¶ 8. As noted in Plaintiff’s complaint, the EPA produced responsive documents on March 24, 2015, May 7, 2015, May 21, 2015, and July 2, 2015. Compl., Dkt. 1 ¶ 13. However, EPA partially denied the FOIA request based on FOIA Exemption 5, the deliberative process privilege. See 5 U.S.C. § 552(b)(5); Compl., Dkt. 1 ¶ 13; Dkt. 1-3. EPA stated in its response letter to Plaintiff that it withheld 260 emails between it and its contractor, Tetra Tech, under Exemption 5. During July 2015, EPA and Lemieux corresponded about the withheld documents. Compl., Dkt 1 ¶¶ 14-16; Dkt. 1-4, 1-5, 1-6. The EPA corrected its tally of withheld records, stating that a total of 485 emails were withheld pursuant to Exemption 5, and that some of the documents may also contain confidential business information that belonged to contractor Tetra Tech that was exempt from disclosure under FOIA Exemption 4. Id.; 5 U.S.C. § 552(b)(4) (protecting from disclosure “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential”). All such claims of confidential business information were waived by Tetra Tech on April 20, 2016. The EPA also withhheld documents in part under Exemption 6, which exempts from disclosure personal privacy information. 5 U.S.C. § 552(b)(6); Hashimoto Decl. ¶ 14. Plaintiff is not challenging the Agency’s withholding under Exemption 6. Declaration of Justin A. Okun (“Okun Decl.”) ¶ 3. On August 4, 2015, Plaintiff filed an administrative appeal with the EPA’s National Freedom of Information Officer challenging the EPA’s withholding of documents pursuant to Exemption 5. Compl., Dkt. 1 ¶ 17; Dkt. 1-7.4 Plaintiff did not 4 Plaintiff’s administrative appeal also demanded production of a Vaughn Index. “A ‘Vaughn Index’ is a document supplied by government agencies to opposing parties and the court that identifies ‘each document withheld, the statutory exemption claimed, and a particularized explanation of how disclosure of the particular document would damage the interest protected by the claimed exemption,’ and the index is designed to Case 2:16-cv-00570-AB-E Document 29 Filed 12/02/16 Page 14 of 29 Page ID #:190 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 challenge the adequacy of the EPA’s search for documents in its appeal to the EPA’s National Freedom of Information Officer (or in its complaint). Dkt. 1, 1-7, 1-9. On December 2, 2015, Plaintiff wrote a follow-up letter again challenging the withholding of documents under Exemption 4 and 5. Compl., Dkt. 1 ¶ 19; Dkt. 1-9. Plaintiff then filed this action on January 26, 2016. Compl., Dkt. 1 ¶ 19. In April 2016, an EPA employee re-reviewed the documents that were withheld in full at the time of the Agency’s initial response and evaluated these documents for discretionary release. Hashimoto Decl. ¶ 13. As a result of this review, on April 27, 2016, the EPA released 274 emails in full and 119 emails in part from the set of documents that were originally withheld in full. Id. The Agency continues to withhold 110 attachments to emails in full under Exemption 5’s deliberative process privilege. Id. The Agency also provided Plaintiff with a detailed withholdings index that includes an entry for each document withheld in part (119 emails) or in full (110 attachments). Id. III. DISCUSSION The sole issue for the Court to determine is whether the EPA properly withheld records in full or in part pursuant to Exemption 5, the deliberative process privilege. Plaintiff has agreed to waive any challenge to the adequacy of EPA’s FOIA search5 and withholdings pursuant to Exemption 6 (personal privacy). Okun Decl. ¶ 3. Plaintiff’s FOIA request is an attempt to circumvent Judge Armstrong’s order denying Las Virgenes additional discovery outside the administrative record and its own stipulation not to seek additional discovery. As explained below, while the FOIA is a separate legal provide reasoning against which the requester can offer advocacy and a basis for the court to reach a reasoned decision.” Hamdan v. United States DOJ, 797 F.3d 759, 769 n.4 (9th Cir. 2015) (quoting Wiener v. FBI, 943 F.2d 972, 977 (9th Cir. 1991)). A Vaughn Index need not be provided to the requester prior to the agency’s motion for summary judgment. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). The EPA has filed a Vaughn Index concurrently with this Motion for Summary Judgment. 5 In any event, because Plaintiff failed to challenge the adequacy of the search at the administrative level, it is barred from doing so before this Court. See Olsen v. United States DOT, No. C 02-00673, 2002 U.S. Dist. LEXIS 23292, at *4-8 (N.D. Cal. Nov. 25, 2002) (citing Cleary, Gottlieb, Steen & Hamilton v. Dep’t of Health and Human Services, 844 F. Supp. 770, 779-80 (D. D.C. 1993)). Case 2:16-cv-00570-AB-E Document 29 Filed 12/02/16 Page 15 of 29 Page ID #:191 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 regime from civil discovery, Exemption 5 is specifically designed to prevent disclosure of records that would be privileged in the civil discovery context. A. FOIA “The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). Accordingly, FOIA generally requires the disclosure of agency records upon the request of any person. 5 U.S.C. § 552(a)(3)(A). However, the right to access agency records is not unlimited. To the contrary, FOIA includes nine statutory exemptions to the general disclosure obligation. 5 U.S.C. § 552(b)(1)-(9). These exemptions reflect Congress’s decision “to reach a workable balance between the right of the public to know and the need of the Government to keep information in confidence.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (quoting H.R. REP. NO. 89-1497, at 6 (1966), reprinted in 1966 U.S.C.C.A.N. 2418, 2423); see also Pickard v. Dep’t of Justice, 653 F.3d 782, 790 (9th Cir. 2011) (Wallace, J., concurring) (“‘Congress established FOIA’ to strike a balance between the public’s interest in knowing ‘what [its] government is up to’ and the ‘legitimate governmental or private interests’ in withholding documents subject to FOIA’s exemptions.” (quoting Boyd v. Criminal Div. of the U.S. Dep’t of Justice, 475 F.3d 381, 385 (D.C. Cir. 2007))). Although the nine exemptions should be “narrowly construed,” FBI v. Abramson, 456 U.S. 615, 630 (1982), the Supreme Court has made clear that they must have “meaningful reach and application.” John Doe Agency, 493 U.S. at 152. B. Legal Standard A court reviews an agency’s response to a FOIA request de novo. 5 U.S.C. § 552(a)(4)(B). “[S]ummary judgment is the procedural vehicle by which nearly all FOIA cases are resolved.” Animal Legal Defense Fund v. Food and Drug Admin., 819 F.3d 1102, 1110 (9th Cir. 2016) (per curiam concurrence) (quoting Office of Information Policy, U.S. Dep't of Justice, Guide to Freedom of Information Act: Litigation Case 2:16-cv-00570-AB-E Document 29 Filed 12/02/16 Page 16 of 29 Page ID #:192 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Considerations 104 (2013)). Federal Rule of Civil Procedure 56(a) authorizes the granting of summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). However, because of the “unique nature” of FOIA cases, Minier v. Central Intelligence Agency, 88 F.3d 796, 800 (9th Cir. 1996), the summary judgment standard for FOIA cases “is slightly different than for other types of cases . . . .” Animal Legal Defense Fund, 819 F.3d at 1106 (quoting Yonemoto v. Dep't of Veterans Affairs, 686 F.3d 681, 688 (9th Cir. 2012)). “Unlike the typical summary judgment analysis, in a FOIA case, we do not ask whether there is a genuine issue of material fact, because the facts are rarely in dispute.” Minier, 88 F.3d at 800. The agency bears the burden of justifying the assertion of FOIA exemptions to redact or withhold documents. 5 U.S.C. § 552(a)(4)(B). To meet this burden, an agency may rely upon reasonably detailed, non-conclusory affidavits. Minier, 88 F.3d at 800 (9th Cir. 1996); Zemansky v. U.S. EPA, 767 F.2d 569, 571 (9th Cir. 1985). An affidavit that “identif[ies] the documents withheld, the FOIA exemptions claimed, and a particularized explanation of why each document falls within the claimed exemption” is “commonly referred to as a ‘Vaughn index.’” Lion Raisins Inc. v. U.S. Dep’t of Agric., 354 F.3d 1072, 1082 (9th Cir. 2004) (citing Vaughn, 484 F.2d at 823-25). “Affidavits submitted by an agency to demonstrate the adequacy of its FOIA response are presumed to be in good faith.” Hamdan, 797 F.3d at 772.6 Moreover, courts “accord substantial weight to an agency’s declarations regarding the application of a FOIA exemption.” Shannahan v. IRS, 672 F.3d 1142, 1148 (9th Cir. 2012) (quoting Hunt v. CIA, 981 F.2d 1116, 1119-20 (9th Cir. 1992)). “Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or 6 The EPA’s supplemental search and production of additional responsive documents, Hashimoto Decl. ¶ 13, does not undermine the adequacy of the initial search or the presumption of good faith accorded to EPA’s declaration. To the contrary, conducting additional searches and correcting errors demonstrate cooperation. See Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C. Cir. 1986). Case 2:16-cv-00570-AB-E Document 29 Filed 12/02/16 Page 17 of 29 Page ID #:193 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ‘plausible.’” Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007) (citation omitted). An agency that has submitted satisfactory affidavits is entitled to summary judgment. Lion Raisins, 354 F.3d at 1082; see also Lewis v. IRS, 823 F.2d 375, 378 (9th Cir. 1987) (“If the affidavits contain reasonably detailed descriptions of the documents and allege facts sufficient to establish an exemption, ‘the district court need look no further.’” (quoting Church of Scientology of California v. U.S. Dep’t of the Army, 611 F.2d 738, 742 (9th Cir. 1979))). Lastly, under FOIA, “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.” 5 U.S.C. § 552(b). In other words, “even if part of a document is FOIA exempt, the agency must still disclose any portions which are not exempt.” Bay Area Lawyers Alliance for Nuclear Arms Control v. Dep’t of State, 818 F. Supp. 1291, 1296 (N.D. Cal. 1992). Thus, an agency must perform a “segregability analysis” distinguishing exempt from nonexempt material within each document. Judicial Watch, Inc. v. United States Postal Serv., 297 F. Supp. 2d 252, 277 (D. D.C. 2004). C. The EPA properly asserted Exemption 5 of FOIA 1. Plaintiff’s FOIA request is an attempt to circumvent Judge Armstrong’s ruling denying Las Virgenes additional discovery and Las Virgenes’ subsequent stipulation not to seek additional discovery As noted above, “[t]he basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” Robbins Tire, 437 U.S. at 242. This purpose is accomplished by “open[ing] agency action to the light of public scrutiny.” U.S. Dep’t of Justice v. Reporters Comm. For Freedom of Press, 489 U.S. 749, 772 (1989). However, “FOIA was not intended to supplement or displace rules of discovery.” John Doe Agency, 493 U.S. at 153. “[A] FOIA request is not a substitute for the normal process of discovery in civil and criminal cases.” Rugiero v. United Case 2:16-cv-00570-AB-E Document 29 Filed 12/02/16 Page 18 of 29 Page ID #:194 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 States Dep’t of Justice, 257 F.3d 534, 547 (6th Cir. 2001); see also Irons v. Bell, 596 F.2d 468, 574 & n.15 (1st Cir. 1979). “The primary purpose of the FOIA was not to benefit private litigants or to serve as a substitute for discovery.” Baldridge v. Shapiro, 455 U.S. 345, 360 n.14 (1982); see also Renegotiation Bd. v. Bannecraft Clothing Co., 415 U.S. 1, 24 (1974) (“Discovery for litigation purposes is not an expressly indicated purpose of the [FOIA].”); Martinez v. EEOC, No. SA-04-CA-0391-XR, 2004 U.S. Dist. LEXIS 23182, at *20 (W.D. Tex. Oct. 19, 2004) (granting defendant’s motion for summary judgment and finding that “Plaintiff [was] clearly using the FOIA as a discovery tool, guised as a matter of public interest.”); Comer v. IRS, No. 97-CV-76329, 2000 U.S. Dist. LEXIS 19981, at *3 (E.D. Mich. Oct. 5, 2000) (“FOIA is not intended to be a substitute for discovery”). The documents Plaintiff seeks in this litigation are precisely the documents it sought to obtain in the underlying action in the Northern District of California. Las Virgenes sought from the EPA comments from entities regarding the draft 2013 TMDL, peer review comments regarding the draft 2013 TMDL, reports prepared by contractors for the EPA regarding the 2013 TMDL, and “drafts and deliberative documents” regarding the 2013 TMDL. Ltr. to Counsel, Dkt. 55-2, Las Virgenes. These are precisely the documents Plaintiff seeks to obtain in this FOIA action. Dkt. 1-1. In the underlying action, Plaintiff failed to file a discovery motion on time and “failed to demonstrate that an extension of time to file a discovery motion is appropriate” as “[j]udicial review of an agency’s decision typically focuses on the administrative record in existence at the time of the decision and does not encompass any part of the record that is made initially in the reviewing court.” Order, Dkt. 61 at 3, Las Virgenes. Las Virgenes did “not identify any ‘holes’ in the administrative record that [could] be ‘plugged’ through discovery” and had failed previously “to articulate a basis for why discovery [was] appropriate” in the case despite having had “ample time to review the administrative record.” Id. at 3-4. Accordingly, its attempt to obtain document outside the administrative record was denied. Id. Further, two weeks later Las Virgenes filed a Case 2:16-cv-00570-AB-E Document 29 Filed 12/02/16 Page 19 of 29 Page ID #:195 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 joint stipulation in which it stated that it would “not seek discovery in this action.” Joint Stip., Dkt. 62, Id. Plaintiff’s FOIA request is thus an attempt to circumvent Judge Armstrong’s order and its own stipulation and obtain through FOIA what it was denied under the rules of discovery, and even agreed not to seek. Plaintiff is “clearly using the FOIA as a discovery tool, guised as a matter of public interest.” Martinez, 2004 U.S. Dist. LEXIS 23182, at *20. However, Exemption 5 was specifically designed to prevent a party from obtaining through FOIA documents it is not entitled to receive in civil discovery: Moreover, respondents’ contention that they can obtain through the FOIA material that is normally privileged would create an anomaly in that the FOIA could be used to supplements civil discovery. We have consistently rejected such a construction of the FOIA. We do not think that Congress could have intended that the weighty policies underlying privileges could be so easily circumvented. United States v. Weber Aircraft Corp., 465 U.S. 792, 801-02 (1984) (internal citations omitted). As explained below, Plaintiff’s attempt to seek documents it was not entitled to in discovery, in particular, “drafts and deliberative documents” regarding the 2013 TMDL (Ltr. to Counsel, Dkt. 55-2, Las Virgenes) is prohibited under Exemption 5. 2. The Deliberative Process Privilege Protects Documents Redacted and Withheld by EPA Exemption 5 of FOIA permits an agency to withhold from the public “inter- agency or intra-agency memorandums or letters which would not be available to a party by law other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). This exemption shields documents of the type that would be privileged in the civil discovery context. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). Exemption 5 incorporates the deliberative process privilege. Dep’t of the Interior v. Klamath Water Users’ Protective Ass’n, 532 U.S. 1, 8 (2001). The purpose of the deliberative process privilege is “to allow agencies freely to explore possibilities, engage Case 2:16-cv-00570-AB-E Document 29 Filed 12/02/16 Page 20 of 29 Page ID #:196 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in internal debates, or play devil’s advocate without fear of public scrutiny.” Carter v. U.S. Dep’t of Commerce, 307 F.3d 1084, 1088-89 (9th Cir. 2002) (citations omitted). As the Supreme Court has explained, “The deliberative process privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance the quality of agency decisions by protecting open and frank discussion among those who make them within the Government.” Klamath, 532 U.S. at 8-9 (internal quotation marks and citations omitted); see also Nat’l Wildlife Fed’n v. U.S. Forest Serv., 861 F.2d 1114, 1117 (9th Cir. 1988) (observing that the privilege “maintain[s] the confidentiality of the give-and-take that occurs among agency members in the formulation of policy”). The privilege also serves to “protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency’s action.” Kortlander v. Bureau of Land Mgmt., 816 F. Supp. 2d 1001, 1011 (D. Mont. 2011) (quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)). To fall within the deliberative process privilege, a document must be both “(1) ‘predecisional’ or ‘antecedent to the adoption of agency policy’ and (2) ‘deliberative,’ meaning ‘it must actually be related to the process by which policies are formulated.’” Nat’l Wildlife Fed’n, 861 F.2d at 1117 (quoting Jordan v. U.S. Dep’t of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978)). A document is “predecisional if it was ‘prepared in order to assist an agency decisionmaker in arriving at his decision.’” Assembly of the State of California v. U.S. Dep’t of Commerce, 968 F.2d 916, 921 (9th Cir. 1992) (quoting Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168, 184 (1975)). A document is “deliberative” if “disclosure of materials would expose an agency’s decision-making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.” Id. Case 2:16-cv-00570-AB-E Document 29 Filed 12/02/16 Page 21 of 29 Page ID #:197 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (quoting Dudman Comm’ns Corp. v. Dep’t of the Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987)). Documents covered by the deliberative process privilege include “‘recommendations, draft documents, proposals, suggestions and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency,’ as well as documents which would ‘inaccurately reflect or prematurely disclose the views of the agency.’” Nat’l Wildlife Fed’n, 861 F.2d at 1118-19 (quoting Coastal States Gas Corp., 617 F.2d at 866); see also Klamath, 532 U.S. at 8. “Draft documents subject to revision or containing proposed changes fall well within the deliberative process privilege.” Kortlander, 816 F. Supp. 2d at 1012 (citing Nat’l Wildlife Fed’n, 861 F.2d at 1120-21); accord Exxon Corp. v. Dep’t of Energy, 585 F. Supp. 690, 698 (D.D.C. 1983) (“Draft documents, by their very nature, are typically predecisional and deliberative.”); see also Mobil Oil Corp. v. EPA, 879 F.2d 698, 703 (9th Cir. 1989) (dicta) (noting that “deliberative process privilege protection under exemption 5 is available to a draft document regardless of whether it differs from its final version”). Requiring disclosure of draft documents could have a chilling effect on internal agency discussions. See Nat’l Wildlife Fed’n, 861 F.2d at 1122. Indeed, this chilling effect is a concern even if a draft document reflects only editorial changes to factual material, because “[i]n some circumstances, the mere editing of factual material may constitute a policymaking process which is deliberative and therefore privileged.” Nevada v. U.S. Dep’t of Energy, 517 F. Supp. 2d 1245, 1264 (D. Nev. 2007); see also Nat’l Wildlife Fed’n, 861 F.2d at 1122 (recognizing that Exemption 5 prevents a FOIA requester from reconstructing an agency’s pre-decisional judgment by comparing findings and projections of draft and final documents; the deliberative process privilege protects “the editorial and policy judgment of the decisionmakers”). Emails qualify as deliberative where candor is at a premium. See Maricopa Audubon Soc’y v. U.S. Forest Serv., 108 F.3d 1089, 1095 (9th Cir. 1997). Similarly, disclosure of “work plans, status reports, briefings, opinion papers, and proposals” Case 2:16-cv-00570-AB-E Document 29 Filed 12/02/16 Page 22 of 29 Page ID #:198 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 would “stifle the candor necessary in an agency’s policy making process.” Hornbostel v. Dep’t of the Interior, 305 F. Supp. 2d 21, 31 (D. D.C. 2003); see also Klunzinger v. IRS, 27 F. Supp. 2d 1015, 1026-27 (W.D. Mich. 1998). As noted above, this Court must accord substantial weight to EPA’s application of Exemption 5. Shannahan, 672 F.3d at 1148. The Agency is best situated “to know what confidentiality is needed ‘to prevent injury to the quality of agency decisions.’” Chem. Mfrs. Ass’n v. Consumer Prod. Safety Comm’n, 600 F. Supp. 114, 118 (D.D.C. 1984) (quoting Sears, Roebuck & Co., 421 U.S. at 151). EPA’s justification for asserting Exemption 5 is “sufficient if it appears ‘logical’ or ‘plausible.’” Wolf, 473 F.3d at 374- 75. As set forth in the accompanying Vaughn index, the EPA has relied on Exemption 5 to redact or withhold documents protected by the deliberative process privilege in four general categories relating to the Agency’s work on the TMDL: (1) discussions regarding what content to include in the 2013 TMDL, including draft sections of the 2013 TMDL, (2) discussions regarding responses to inquiries from the Las Virgenes Municipal Water District (“LVMWD”), (3) internal work planning discussions concerning how to allocate resources to efficiently complete the TMDL, and (4) discussions regarding EPA’s official response to public comments provided in response to proposed TMDL. Hashimoto Decl. ¶ 16. The first category – discussions regarding what content to include in the 2013 TMDL – includes documents reflecting draft language for the TMDL and discussion regarding the TMDL content. This category covers both email discussions and draft portions of the TMDL. The EPA publicly issued a proposed TMDL for public comment on December 12, 2012 and a final TMDL on July 2, 2013. Id. ¶¶ 18-21. The withheld information in the emails is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA staff and contractor opinions and analyses related to the EPA’s development of the 2013 TMDL, which included the December 12, 2012 proposed TMDL and the July 2, 2013 final Case 2:16-cv-00570-AB-E Document 29 Filed 12/02/16 Page 23 of 29 Page ID #:199 16 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 TMDL.7 Id. The withheld information is predecisional because it either relates to, but predates, the publication of the December 12, 2012 proposed TMDL, or it relates to, but predates, the July 2, 2013 final TMDL. Id. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL. Id. Likewise, EPA properly withheld drafts of the proposed 2012 TMDL and the final 2013 TMDL. EPA staff and/or contractors circulated the drafts for internal review and comment to develop EPA’s official position on the sections within the TMDL. Additionally, the draft TMDL sections that were withheld in full were done so because there is no reasonably segregable, non-exempt information that can be disclosed from the drafts. Id. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analysis and opinions that were still in development at EPA. Id. Further, release of this information generated at this early stage of development would harm the Agency’s ability to evaluate information and fairly consider different approaches to documents of this nature and have a chilling effect on candid discussions among EPA staff and contractors concerning the scientific research and analysis authorized by the Clean Water Act, consequently undermining EPA’s ability to perform its basic functions. Id. Release would also 7 Regarding documents created by contractors for EPA, “Documents and communications may qualify as ‘intra-agency’ materials when they ‘ha[ve] been received by an agency, to assist it in the performance of its own functions, from a person acting in a governmentally conferred capacity other than on behalf of another agency— e.g., in a capacity as an employee or consultant to the agency.’” Citizens for Responsibility & Ethics in Washington v. Dep’t of Homeland Sec., 514 F. Supp. 2d 36, 44 (D.D.C. 2007) (quoting Klamath, 532 U.S. at 9-10); see also Sakamoto v. U.S. EPA, 443 F. Supp. 2d 1182, 1190-92 (N.D. Cal. 2006) (finding documents authored by consultants were intra-agency records); Citizens Progressive Alliance v. U.S. Bureau of Indian Affairs, 241 F. Supp. 2d 1342, 1355-56 (D.N.M. 2002) (finding letter and report prepared for agency by private company constituted intra-agency records, in part because “the documents are analogous to the type of work an employee of the agency would do”). Case 2:16-cv-00570-AB-E Document 29 Filed 12/02/16 Page 24 of 29 Page ID #:200 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 interfere with staff's ability to advise senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Id. Furthermore, release could cause public confusion by disclosure of reasons, rationales, and conclusions that were not in fact ultimately included in the TMDL. Id. Accordingly, the documents in category 1 were properly withheld under Exemption 5. The second category of documents at issue includes the development of responses to inquiries from the LVMWD regarding data from Malibu creek that related to the TMDL. Id. ¶ 22. As explained, the 2013 TMDL establishes pollutant loading limitations for Malibu Creek that could affect future NPDES permit requirements for the water treatment facility operated by the LVMWD. Thus, LVMWD made various inquires while EPA was developing the TMDL. These discussions were part of the process of deciding how to respond to LVMWD’s inquiries. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations regarding responses to inquiries from the LVMWD that reflect EPA staff and contractor analyses, advice, and recommendations related to EPA’s external communications policy concerning the 2013 TMDL. Id. The withheld information is internal to EPA staff and is pre-decisional because it was generated prior to arriving at a final decision regarding the content or timing of external communications with LVMWD. Id. The withheld information in this category of dcouments is also pre-decisional because it was prepared for the purpose of assisting EPA decision-makers in arriving at an external communications policy decision and, in fact, contributed to the Agency’s decision-making process in that regard. Id. The information also relates to the EPA’s on-going work on the TMDL. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to formulate communications strategy and does not reflect an official Agency decision or policy, rather it reflects analysis and opinions on proposals still in development at the Case 2:16-cv-00570-AB-E Document 29 Filed 12/02/16 Page 25 of 29 Page ID #:201 18 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 EPA. Id. Further, release of this information would have a chilling effect on the Agency’s ability to have open and frank discussions among its staff concerning the Agency's policy priorities in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Id. Release would also interfere with staff's ability to advise senior officials with a variety of options or ideas that may not ultimately be selected for Agency action. Id. Furthermore, release could cause public confusion by disclosure of reasons, rationales, and conclusions that were not in fact ultimately the position of the EPA or the U.S. Government. Id. Thus, the documents in this second category were properly withheld under Exemption 5. The third category of documents that were withheld in full or in part pursuant to Exemption 5’s deliberative process privilege concern discussions involving internal work planning regarding how to allocate resources to efficiently complete the TMDL. Id. ¶ 23. The withheld information in this category is protected under Exemption 5’s deliberative process privilege because it constitutes internal discussions about work planning and division of labor, including draft meeting agendas, draft workflow presentations, and work plans. Id. The withheld information is internal to EPA and its contractors. Id. The discussions are pre-decisional because they precede final Agency decisions on how to logistically proceed with the development of the TMDL, assisted the Agency in arriving at final decisions, and did, in fact, contribute to final Agency decisions. Id. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document. Id. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analysis and opinions on analysis that were still in development at EPA. Id. Further, release of this information generated at this early stage of development would harm the Agency’s ability to prepare documents of this nature and have a chilling effect on candid Case 2:16-cv-00570-AB-E Document 29 Filed 12/02/16 Page 26 of 29 Page ID #:202 19 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 discussions among EPA staff and EPA scientists concerning the scientific research and analysis authorized by the Clean Water Act and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Id. Release would also interfere with staff's ability to advise senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Id. Furthermore, release could cause public confusion by disclosure of reasons, rationales, and conclusions that were not in fact ultimately included in the TMDL. Id. Thus, the Agency properly withheld documents in this category pursuant to Exemption 5. The last category of documents are discussions about EPA’s official response to public comments on the proposed TMDL. Id. ¶ 24. EPA issued the proposed TMDL for public comment on December 12, 2012. EPA received over one hundred comments in response, including formal comments submitted by LVMWD. Id. These documents were part of the process of deciding how to effectively respond to public comments, including the nature and timing of EPA’s responses. EPA released its official response to the public comments on July 2, 2013. The withheld information in this category is protected under Exemption 5's deliberative process privilege because it contains internal agency discussions reflecting staff analyses, advice, and recommendations relating to EPA’s then-ongoing review of the public comment and evaluation process concerning the TMDL. Id. The withheld information is internal to EPA and its contractors. Id. The withheld information does not represent an official Agency decision or policy and instead reflects analysis and opinions on proposals related to responding to public comments that were still in development at the EPA. Id. The withheld information is pre-decisional because it was created for the purpose of assisting EPA staff and contractors in reaching a decision on responding to public comments to the draft and did, in fact, assist agency decision makers in that regard. Id. The withheld information is deliberative because it represents staff opinions and judgments of staff that were under consideration by the EPA and do Case 2:16-cv-00570-AB-E Document 29 Filed 12/02/16 Page 27 of 29 Page ID #:203 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 not reflect final Agency decisions regarding final responses to comments. Id. Release of this information would have a chilling effect on the Agency’s ability to have open and frank discussions among its staff and with contractors concerning the Agency's policy priorities when responding to public comments. Id. Release would also interfere with the ability of staff and contractors to advise senior officials with a variety of options or ideas for processing and responding to public comments that may not ultimately be selected for Agency action. Id. Furthermore, release could cause public confusion by disclosure of reasons, rationales, and conclusions that were not in fact ultimately the position of the EPA or the U.S. Government. Id. Thus records in this last category were properly withheld under Exemption 5. 3. EPA Has Released All Reasonably Segregable Portions of Records Withheld Under Exemption 5 FOIA requires agencies to release “[a]ny reasonably segregable portion of a record . . . after deletion of the portions which are exempt under this subsection.” 5 U.S.C. § 552(b). “The agency can meet its burden by offering an affidavit with reasonably detailed descriptions of the withheld portions of the documents and alleging facts sufficient to establish an exemption.” Pacific Fisheries, Inc. v. United States, 539 F.3d 1143, 1148 (9th Cir. 2008) (citations omitted). However, in some cases segregation may not be feasible without revealing the protected information. See id. at 1148-49. In such cases, an agency need not disclose the factual material. See id. at 1148 (“Factual portions of documents covered by the deliberative process privilege must be segregated and disclosed unless they are ‘so interwoven with the deliberative material that [they are] not [segregable].’” (quoting United States v. Fernandez, 231 F.3d 1240, 1247 (9th Cir. 2000))). Consistent with this obligation, EPA has reviewed the documents redacted or withheld under Exemption 5 and has concluded that has released all reasonably segregable portions of records redacted under Exemption 5 and that it is not possible to further segregate and release purely factual material from these documents without disclosing the deliberative communications of the documents’ authors. Hashimoto Decl. Case 2:16-cv-00570-AB-E Document 29 Filed 12/02/16 Page 28 of 29 Page ID #:204 21 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 ¶ 25. The documents withheld in their entirety contain no meaningful portion that could be released without destroying the integrity of the document or without disclosing deliberative discussions, the release of which would harm the Agency’s decision-making process. Id. IV. CONCLUSION For the foregoing reasons, Defendant respectfully requests that this Court grant summary judgment in its favor and against Plaintiff. Dated: December 2, 2016 Respectfully submitted, EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section, Civil Division /s/ Justin A. Okun Assistant United States Attorney Attorneys for Defendant United States Environmental Protection Agency Case 2:16-cv-00570-AB-E Document 29 Filed 12/02/16 Page 29 of 29 Page ID #:205 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 EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section, Civil Division JUSTIN A. OKUN (Cal. Bar No. 230954) Assistant United States Attorney Federal Building, Suite 7516 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 894-7354 Facsimile: (213) 894-7819 E-mail: Justin.Okun@usdoj.gov Attorneys for Defendant United States Environmental Protection Agency UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA LEMIEUX & O’NEILL, EX REL. LAS VIRGENES – TRIUNFO JOINT POWERS AUTHORITY, a public agency, Plaintiff, v. GINA McCARTHY, Administrator of the UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; and DOES 1-10, inclusive, Defendants. No. CV 16-00570 AB (Ex) DECLARATION OF JUSTIN A. OKUN IN SUPPORT OF DFENDANT UNITED STATES ENVIRONMENTAL PROTECTION AGENCY’S MOTION FOR SUMMARY JUDGMENT Honorable André Birotte Jr. United States District Judge Case 2:16-cv-00570-AB-E Document 29-1 Filed 12/02/16 Page 1 of 7 Page ID #:206 1 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 DECLARATION OF JUSTIN A. OKUN I, Justin A. Okun, hereby declare: 1. I am an Assistant United States Attorney for the Central District of California, and the attorney primarily responsible for representing the United States in this action. 2. During the course of this litigation the parties have met and conferred in order to narrow the issues in dispute in this case. 3. Plaintiff has stated that it is not challenging the adequacy of Defendant’s search for records, or withholding of documents pursuant to Exemptions 4 or 6 of the Freedom of Information Act, and that the only issue in dispute is whether documents were properly withheld pursuant to Exemption 5. See Exs. A and B (emails between counsel). I declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing is true and correct. Executed this 2nd day of December, 2016, at Los Angeles, California. /s/ Justin A. Okun JUSTIN A. OKUN Assistant United States Attorney Case 2:16-cv-00570-AB-E Document 29-1 Filed 12/02/16 Page 2 of 7 Page ID #:207 EXHIBIT A Case 2:16-cv-00570-AB-E Document 29-1 Filed 12/02/16 Page 3 of 7 Page ID #:208 1 Okun, Justin (USACAC) From: Manuel Serpa Sent: Monday, November 14, 2016 7:22 AM To: Schwarz, Matthew Cc: Okun, Justin (USACAC); Moffatt, Brett Subject: Re: MSJ We do not wish to challenge the personal privacy withholdings. Thanks. Regards, Manuel On Nov 14, 2016, at 5:56 AM, Schwarz, Matthew wrote: Thanks, Manuel. Do you also plan to challenge our Exemption 6‐ personal privacy withholdings (cell phone numbers, private information about family plans such as vacations unrelated to work, etc.) or can we exclude those from this suit? ‐Matt From: Manuel Serpa [mailto:Manuel@lemieux‐oneill.com] Sent: Friday, November 11, 2016 2:07 PM To: Schwarz, Matthew ; justin.okun@usdoj.gov Cc: Moffatt, Brett Subject: RE: MSJ Gentlemen, Thanks again for taking the time to speak with me yesterday. It did help me to better understand your position, but it does appear that your motion for summary judgment will be necessary. We believe that your application of the section 5 exemption is too broad and that there should be non-exempt correspondence between Cindy Lin and Heal the Bay and between Cindy Lin and Tetratech that we have yet to receive. Also, we consider our FOIA request to be sufficient to include the production of the contract between the EPA and Tetratech. We anticipate that the Vaughn Index you will provide with the MSJ will contain more information than that provided in the withholding index you forwarded in July and that it will include the reasonably segregable information missing from the withholding index. Thank you for your time and attention. Regards, Manuel D. Serpa From: Schwarz, Matthew [mailto:Schwarz.Matthew@epa.gov] Sent: Thursday, November 10, 2016 1:19 PM Case 2:16-cv-00570-AB-E Document 29-1 Filed 12/02/16 Page 4 of 7 Page ID #:209 2 To: Manuel Serpa ; justin.okun@usdoj.gov Cc: Moffatt, Brett Subject: RE: schedule Gentlemen‐ Let’s use the following dial‐in: 1‐855‐564‐1700 Extension: 1104849 Code: 234567 Lemieux & O’Neill a professional law corporation 4165 E. Thousand Oaks Blvd. Suite 350 Westlake Village California 91362 Tel: 805 / 495-4770 Fax: 805 / 495-2787 Website: www.lemieux-oneill.com Manuel D. Serpa Of Counsel The information contained in this email is legally privileged and confidential, intended only for the use of the individual or entity named above. If the receiver of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this email is strictly prohibited. If you have received this email in error, please delete it, and immediately notify us by telephone at 805.495.4770. If after hours, call 805.409.2686. Thank you. To ensure compliance with requirements imposed by the IRS, we inform you that, if any advice concerning one or more U.S. Federal tax issues is contained in this communication (including any attachments), such advice is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. Case 2:16-cv-00570-AB-E Document 29-1 Filed 12/02/16 Page 5 of 7 Page ID #:210 EXHIBIT B Case 2:16-cv-00570-AB-E Document 29-1 Filed 12/02/16 Page 6 of 7 Page ID #:211 1 Okun, Justin (USACAC) From: Okun, Justin (USACAC) Sent: Tuesday, November 29, 2016 10:37 AM To: 'Manuel Serpa' Cc: 'Schwarz, Matthew' Subject: FOIA case Manuel, Thank you again for getting back to me so quickly. This confirms that the sole issue in dispute is the withholding of documents pursuant to Exemption 5. Plaintiff is not challenging the adequacy of the search, nor withholdings under Exemptions 4 or 6. Accordingly, the EPA’s motion for summary judgment will address Exemption 5 only. If I am mistaken or misstated something, please let me know. Thank you for your cooperation. Regards, Justin Justin A. Okun Assistant U.S. Attorney U.S. Attorney’s Office Central District of California 300 N. Los Angeles St., Suite 7516 Los Angeles, CA 90012 (213) 894‐7354 office (213) 393‐5212 mobile Case 2:16-cv-00570-AB-E Document 29-1 Filed 12/02/16 Page 7 of 7 Page ID #:212 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 EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section, Civil Division JUSTIN A. OKUN (Cal. Bar No. 230954) Assistant United States Attorney Federal Building, Suite 7516 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 894-7354 Facsimile: (213) 894-7819 E-mail: Justin.Okun@usdoj.gov Attorneys for Defendant United States Environmental Protection Agency UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA LEMIEUX & O’NEILL, EX REL. LAS VIRGENES – TRIUNFO JOINT POWERS AUTHORITY, a public agency, Plaintiff, v. GINA McCARTHY, Administrator of the UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; and DOES 1-10, inclusive, Defendants. No. CV 16-00570 AB (Ex) DECLARATION OF JANET HASHIMOTO IN SUPPORT OF DFENDANT UNITED STATES ENVIRONMENTAL PROTECTION AGENCY’S MOTION FOR SUMMARY JUDGMENT Honorable André Birotte Jr. United States District Judge Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 1 of 144 Page ID #:213 1 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 DECLARATION OF JANET HASHIMOTO I, Janet Hashimoto, declare that the following statements are true and correct to the best of my knowledge, and are based on my personal knowledge, information acquired by me in the course of performing my official duties, information contained in the records of the United States Environmental Protection Agency ("EPA" or "the Agency"), and/or information supplied to me by current EPA employees. I. Background 1. I am the Manager of the Water Quality Assessment Section of the Water Division in EPA Region 9. My section administers the water quality standards, monitoring, assessment, 303(d) list of impaired waters, and TMDL programs, which includes the review of TMDLs submitted to EPA by states, territories, or authorized tribes, and establishment of TMDLs in some instances. I and my staff respond to FOIA requests concerning all of the above matters. II. Plaintiff’s FOIA Request 2. On January 20, 2015, Plaintiff emailed its FOIA request to EPA. It was assigned tracking number EPA-R9-2015-003358 and Ivry Johnson, the Regional Freedom of Information Officer in EPA’s Region 9 office in San Francisco, routed it to the Region 9 Water Division. The FOIA request was as follows: We are requesting records and correspondence, including email, between the Environmental Protection Agency ("EPA"), and any of the following: (1) consultants; (2) contractors and subcontractors; (3) nonpublic entities; (4) public entities and joint powers authorities; ( 5) nongovernmental organizations; (6) academic institutions; and (7) the general public for the period between 2010 and 2014, in connection with the "Malibu Creek and Lagoon TMDL for Sedimentation and Nutrients to Address Benthic Community Impairments" promulgated by the EPA in 2013 ("2013 TMDL"). As used herein, "EPA" includes officers, agents and employees of EPA, and, as used herein, email includes email sent to or Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 2 of 144 Page ID #:214 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 received by EPA, regardless of the name of the addressee who purportedly sent or received the email and regardless of email address. This request does not include records and correspondence between EPA and Las Virgenes Municipal Water District, Triunfo Sanitation District, or between EPA and Las Virgenes - Triunfo Joint Powers Authority. We are also not requesting records and correspondence which have been included in the Administrative Record prepared for Las Virgenes - Triunfo Joint Powers Authority v. E.P.A., et al, U.S.D.C. Case No. C 14-0 1392 SBA. A Total Maximum Daily Load (“TMDL”) is a calculation of the maximum amount of a pollutant that a body of water can receive and still safely meet water quality standards. The Clean Water Act requires that states, territories, and authorized tribes develop lists of impaired waters, which are waters that are too polluted or otherwise degraded to meet the water quality standards set by states, territories, or authorized tribes. The Clean Water Act further requires that these jurisdictions establish priority rankings for waters on their respective lists and develop TMDLs for these waters. On July 2, 2013, EPA established the TMDL that is the subject of this FOIA request to achieve the water quality objectives set by the State of California for the Malibu Creek and Lagoon. Plaintiff then challenged EPA’s issuance of this TMDL in two related cases in 2013. III. Search for Responsive Documents 3. Brett Moffatt, an attorney in Region 9’s Office of Regional Counsel, coordinated the search for responsive records because Cindy Lin, the lead Water Division staff for the TMDL, was located in Region 9’s Los Angeles field office and the search resources were primarily in the Region’s San Francisco office and EPA headquarters. 4. EPA identified the custodians who might possess records responsive to Plaintiff’s FOIA request because they might have performed work related to the Malibu Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 3 of 144 Page ID #:215 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TMDL, which is the subject matter of the Plaintiff’s request. EPA identified the following six individuals: Cindy Lin, Peter Kozelka, Brett Moffatt, Janet Hashimoto, John Kemmerer, and Robyn Stuber. 5. Since the FOIA request asked specifically for correspondence, Brett Moffatt discussed with Cindy Lin, the project manager for this TMDL whether any potentially responsive communications in EPA’s possession might exist only in physical files, or otherwise not be retained within EPA’s email databases. They identified one responsive document (“Record of Interaction on the Malibu SOWR,” included in EPA’s May 7, 2013 document release). Brett Moffatt and Cindy Lin determined that all other responsive documents were expected to be contained in the email files of the six potential custodians. 6. The email search involved searching two systems, Lotus Notes and Microsoft Outlook. Lotus Notes was the email system used by the Agency until February 2013 when the Agency converted its email system to Microsoft Outlook. 7. On April 20, 2016, Brett Moffatt asked the EPA’s Office of Environmental Information to conduct a centralized search of e-mails in the Outlook email boxes for each the six custodians. The search terms employed were (“Malibu” and “TMDL”) or (“Malibu” and “Triunfo”). EPA used the search terms because the FOIA request asked for communications regarding the Malibu TMDL. The search was for Outlook emails through August 1, 2013 because the project ended just after the TMDL was published on July 2, 2013 and EPA therefore concluded that no responsive documents existed after August 1, 2013. 8. On April 27, 2016, search results were returned to Brett Moffatt, who personally reviewed all documents for both responsiveness and privilege. 9. On April 23, 2015, Brett Moffatt asked Steven Armsey, the Region 9 Regional Hearing Clerk, who was designated Region 9’s search official for a pilot program to conduct centralized searches in Lotus Notes, to search the Lotus Notes email files of the six custodians using the same search terms for the centralized Outlook search Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 4 of 144 Page ID #:216 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 described in paragraph # above. The time period for the Lotus Notes search was January 1, 2010 through February 28, 2013. One custodian, Robyn Stuber, informed Brett Moffatt that she had reviewed her Lotus Notes emails and determined that she had no emails pertaining to the Malibu TMDL. Accordingly, no further search of her records in Lotus Notes was performed. On May 21, 2015, after running Lotus Notes searches, Steven Armsey sent the documents identified in the searches to Brett Moffatt. 10. In preparation for this motion, Brett Moffatt reviewed the history of EPA’s 2015 email searches to verify their sufficiency. He confirmed that the searches had been performed for the four other custodians and my main Lotus Notes email box. However, he could not confirm that my Lotus Notes “archive” was searched. The Lotus Notes “archive” contains emails sent or received prior to late 2011. Out of an abundance of caution, on November 17, 2016, I ran a search of my Lotus Notes archive using the original search terms, which yielded one additional potentially responsive document. EPA provided this record to Plaintiff on December 2, 2016. IV. Review and Production of Responsive Documents 11. Brett Moffatt reviewed all of the results of the Outlook and Lotus Notes email searches for responsiveness and application of FOIA exemptions. 12. EPA produced 612 emails to Plaintiff through FOIAOnline on March 26,1 May 7, May 21, and July 2, 2015. A number of these emails contain additional documents as attachments. V. Supplemental Review and Production of Documents 13. Subsequently, in April 2016, an attorney in EPA’s Office of General Counsel re-reviewed the documents that were withheld in full at the time of the Agency’s initial response and evaluated these documents for additional discretionary release. As a result of this review, the Agency released 143 emails in full and 119 emails 1 EPA was able to collect some documents that had been gathered for Plaintiff’s other pending litigation against EPA in the Northern District of California and produce them on March 26, 2015, which was before the dates of any centralized email searches. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 5 of 144 Page ID #:217 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in part. The Agency also released 131 attachments in full and continues to withhold 110 attachments in full. The Agency also provided Plaintiff with a detailed withholdings index that includes an entry for each document withheld in part or in full. VI. Withheld Information 14. EPA is withholding documents in full or in part pursuant to FOIA Exemptions 5 and 6. 5 U.S.C. §§ 552(b)(5), (b)(6). Plaintiff is not challenging the Exemption 6 withholdings. All of the information withheld under Exemption 5 is pursuant to the deliberative process privilege. A Vaughn index describing the Exemption 5 application of the deliberative process privilege is attached hereto as Ex. A. The Vaughn index provides specific explanations for each document. A. FOIA Exemption 5 15. The records withheld pursuant to Exemption 5 are communications exchanged only among, or drafts created by, EPA staff and Tetra Tech, an EPA contractor. Tetra Tech provided technical assistance, such as gathering information, analyzing data and running models, and helping EPA staff draft and present information for the TMDL and respond to public comments. As explained in paragraph 2 above, EPA established the TMDL under the Clean Water Act to achieve the water quality objectives set by the State of California for Malibu Creek and Lagoon. 16. The information withheld or redacted on the basis of the deliberative process privilege falls into four categories relating to the Agency’s work on the TMDL: (1) discussions regarding what content to include in the TMDL, including draft sections of the TMDL, (2) discussion regarding responses to inquiries from the Las Virgenes Municipal Water District (“LVMWD”), (3) internal work planning discussions concerning how to allocate resources to efficiently complete the TMDL, and (4) discussions regarding responses to public comments. 17. The first category includes documents reflecting draft language for the TMDL and discussion regarding the TMDL content. This category covers both email Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 6 of 144 Page ID #:218 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 discussions and draft portions of the TMDL. The EPA issued a proposed TMDL for public comment on December 12, 2012 and a final TMDL on July 2, 2013. 18. The withheld information in the emails (for example, Document 003385- 093) is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA staff and contractor analyses and opinions related to developing the content of the Total Maximum Daily Load to Address Benthic Community Impairments in the Malibu Creek & Lagoon, as required by section 303(d) of the Clean Water Act. The withheld information is predecisional because was created as part of the development of the December 12, 2012 draft TMDL or the development of the July 2, 2013 final TMDL. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL. 19. As explained, EPA also withheld working draft sections of the December 12, 2012 draft provided for public comment and the final TMDL on July 2, 2013. These drafts are predecisional because they were created as part of the development of the December 12, 2012 draft TMDL or the development of the July 2, 2013 final TMDL. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL. 20. EPA withheld in full each of the draft sections of the December 12, 2012 draft TMDL and July 2, 2013 final TMDL because there is no reasonably segregable, non-exempt information that can be disclosed from the drafts (for example, the attachment to Document 003385-059). The final versions of the December 12, 2012 TMDL for public comment and the July 2, 2013 final TMDL were released to the public. 21. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analysis and opinions that were still in development at EPA. Further, release of this information generated at this early stage of development would harm the Agency’s ability to evaluate information and fairly consider different approaches to scientific decisions of this nature Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 7 of 144 Page ID #:219 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and have a chilling effect on candid discussions among EPA staff and contractors concerning the scientific research and analysis authorized by the Clean Water Act, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to advise senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosure of reasons, rationales, and conclusions that were not in fact ultimately included in the TMDL. 22. The next category of documents that were withheld in full or in part pursuant to Exemption 5’s deliberative process privilege is discussions regarding responses to inquiries from the LVMWD regarding Malibu Creek data (for example, Document 003385-067). These discussions were part of the process of deciding how to respond to LVMWD’s inquiries. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations regarding responses to inquiries from the LVMWD that reflect EPA staff and contractor analyses, advice, and recommendations related to EPA’s external communications policy concerning the Malibu Creek and Lagoon TMDL. The withheld information is internal to EPA staff and is pre-decisional because it was generated prior to arriving at any final decision regarding the content or timing of external communications with LVMWD. The withheld information is also pre-decisional because it was prepared for the purpose of assisting EPA decision-makers in arriving at an external communications policy decision and, in fact, contributed to the Agency’s decision-making process in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to formulate communications strategy and does not reflect an official Agency decision or policy, and instead reflects analysis and opinions on proposals still in development at the EPA. Further, release of this information would have a chilling effect on the Agency’s ability to have open and frank discussions among its staff Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 8 of 144 Page ID #:220 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 concerning the Agency's external communications policy priorities in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to advise senior officials with a variety of options or ideas that may not ultimately be selected for Agency action. Furthermore, release could cause public confusion by disclosure of reasons, rationales, and conclusions that were not in fact ultimately the position of the EPA or the U.S. Government. 23. The next category of documents that were withheld in full or in part pursuant to Exemption 5’s deliberative process privilege is discussions involving internal work planning. These documents may also include attachments such as draft meeting agendas, draft workflow presentations, draft schedules and work plans (for example, Document 003385-381). These documents were part of the process of deciding how to allocate resources to efficiently complete the TMDL. The withheld information is protected under Exemption 5’s deliberative process privilege because it is internal discussions about work planning and division of labor. The withheld information is internal to EPA and its contractors. The discussions are pre-decisional because they precede final Agency decisions on how to logistically proceed with the development of the TMDL, including how to efficiently allocate resources to publish the TMDL, and did, in fact, contribute to final Agency decisions. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop a strategy for completing the TMDL. The withheld information does not represent an official Agency decision concerning how to proceed with the publication of the TMDL but instead reflects analysis and opinions on analysis that were still in development at EPA. Further, release of this information generated at this early stage of development would harm the Agency’s ability to prepare documents of this nature and have a chilling effect on candid discussions among EPA staff and EPA scientists concerning the scientific research and analysis authorized by the Clean Water Act and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 9 of 144 Page ID #:221 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 perform its basic functions. Release would also interfere with staff's ability to advise senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosure of reasons, rationales, and conclusions that were not in fact ultimately included in the TMDL. 24. The last category of documents includes deliberative discussions about EPA’s official responses to public comments on the December 12, 2012 TMDL, including drafts of EPA’s responses (for example, Document 003385-699). These documents were part of the process of deciding how to effectively respond to public comments, including the nature and timing of EPA’s responses. EPA publicly released its official response to public comments on July 2, 2013. The withheld information is protected under Exemption 5's deliberative process privilege because it contains internal agency discussions reflecting staff analyses, advice, and recommendations relating to EPA’s then-ongoing review of the public comment and evaluation of the public comment process concerning the TMDL. The withheld information is internal to EPA and its contractors. The withheld information does not represent an official Agency decision or policy and instead reflects analysis and opinions on proposals related to responding to public comments that were still in development at the EPA. The withheld information is pre-decisional because it was created for the purpose of assisting EPA staff and contractors in reaching a decision on responding to public comments to the draft TMDL, including the nature and timing of EPA’s responses, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it represents staff opinions and judgments of staff that were under consideration by the EPA and do not reflect final Agency decisions regarding the content or timing of EPA’s official responses to public comments. Release of this information would have a chilling effect on the Agency’s ability to have open and frank discussions among its staff and with contractors concerning the Agency's policy priorities when responding to public comments. Release would also interfere with the ability of staff and contractors to Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 10 of 144 Page ID #:222 Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 11 of 144 Page ID #:223 EXHIBIT A Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 12 of 144 Page ID #:224 Ex. A, page 1 Lemieux & O’Neill, Ex Rel. Las Virgenes – Triunfo Joint Powers Authority v Gina McCarthy, Administrator of the United States Environmental Protection Agency; United States Environmental Protection Agency; and DOES 1-10 Case No. 2:16-cv-00570-AB United States District Court for the Central District of California Environmental Protection Agency Vaughn Index This index contains a description of the 119 emails withheld in part and the 110 attachments withheld in full by EPA, pursuant to the Freedom of Information Act Exemption 5. All Exemption 5 withholdings assert the deliberative process privilege as the basis for withholding. This Vaughn Index addresses only the documents that Plaintiff contests. Plaintiff has excluded EPA’s Exemption 6 withholdings from this action. Acronyms & Definitions: “TMDL”— Total Maximum Daily Load. This document is a calculation of the maximum amount of a pollutant that a body of water can receive and still safely meet water quality standards. The CWA requires that states, territories, and authorized tribes develop lists of impaired waters, which are waters that are too polluted or otherwise degraded to meet the water quality standards set by states, territories, or authorized tribes. The CWA further requires that these jurisdictions establish priority rankings for waters on the lists and develop Total Maximum Daily Loads for these waters. In this document, “TMDL” refers to the December 12, 2012 proposed or July 2, 2013 final Total Maximum Daily Load to Address Benthic Community Impairments in the Malibu Creek & Lagoon. “LVWMD”— Las Virgenes Municipal Water District “CWA”— CWA Identification of Relevant Personnel: EPA personnel: Cindy Lin, Region 9 Peter Husby, Region 9 Terrence Fleming, Region 9 Contractors: Jon Butcher, Tetra Tech Amy King, Tetra Tech Hillary Nicholas, Tetra Tech Michael Paul, Tetra Tech Gregory Sousa, Tetra Tech Ann Lincoln, Tetra Tech Martha Sutula, Tetra Tech Todd Kennedy, Tetra Tech Erica Hanley, Tetra Tech Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 13 of 144 Page ID #:225 Ex. A, page 2 Withholdings Index- Freedom of Information Act Request No. EPA-R9-2015-003385 Page/Bates Number Date Subject Line Exemption 003385-059 11/28/2011 09:49 AM Malibu 5 Document 003385-059 is an email from Jon Butcher to Cindy Lin that includes one attachment. The attachment is a draft section of the December 12, 2012 proposed TMDL and was withheld in full. The email was released in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it is an internal, predecisional draft version of a section of the TMDL. It reflects EPA staff and contractor analyses and opinions related to the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 14 of 144 Page ID #:226 Ex. A, page 3 003385-067 03/08/2012 09:27 AM Re: FW: Malibu Creek Sedimentation/Siltation & BMI questions 5 Document 003385-067 is an email chain containing six emails. The email chain is a discussion concerning EPA responses to inquiries from the LVMWD. The second email in the chain, from Jon Butcher to Cindy Lin, was withheld in part. The remainder of the email chain was released in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains Internal, predecisional deliberations about responses to inquiries from the LVMWD. These discussions were part of the process of deciding how to respond to LVMWD’s inquiries. Such discussions reflect EPA staff and contractor analyses, advice, and recommendations related to EPA’s external communications policy concerning the Malibu Creek and Lagoon TMDL. The withheld information is internal to EPA staff and is pre-decisional because it was generated prior to arriving at a final decision regarding appropriate external communications. The withheld information is also pre-decisional because it was prepared for the purpose of assisting EPA decisionmakers in arriving at an external communications policy decision and, in fact, contributed to the Agency’s decision-making process in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to formulate communications strategy and does not reflect an official Agency decision or policy and instead reflects analysis and opinions on proposals still in development at the EPA. Further, release of this information would have a chilling effect on the Agency’s ability to have open and frank discussions among its staff concerning the Agency's policy priorities in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a variety of options or ideas that may not ultimately be selected for Agency action. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately the position of the EPA or the U.S. Government. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. 003385-076 03/08/2012 10:31 AM RE: Malibu Creek Sedimentation/Siltation & BMI questions 5 Document 003385-076 is an email chain containing six emails. The email chain is a discussion concerning EPA responses to inquiries from the LVMWD. The first email in the chain, from Jon Butcher to Cindy Lin, was withheld in part. The remainder of the email chain was released in full. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 15 of 144 Page ID #:227 Ex. A, page 4 The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations about responses to inquiries from the LVMWD. These discussions were part of the process of deciding how to respond to LVMWD’s inquiries. Such discussions reflect EPA staff and contractor analyses, advice, and recommendations related to EPA’s external communications policy concerning the Malibu Creek and Lagoon TMDL. The withheld information is internal to EPA staff and is pre-decisional because it was generated prior to arriving at a final decision regarding appropriate external communications. The withheld information is also pre-decisional because it was prepared for the purpose of assisting EPA decisionmakers in arriving at an external communications policy decision and, in fact, contributed to the Agency’s decision-making process in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to formulate communications strategy and does not reflect an official Agency decision or policy and instead reflects analysis and opinions on proposals still in development at the EPA. Further, release of this information would have a chilling effect on the Agency’s ability to have open and frank discussions among its staff concerning the Agency's policy priorities in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a variety of options or ideas that may not ultimately be selected for Agency action. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately the position of the EPA or the U.S. Government. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. 003385-093 08/24/2012 10:10 AM Re: Malibu check-in 5 Document 003385-093 is an email chain containing two emails between Cindy Lin, Jon Butcher, and Amy King. The email chain is a discussion concerning the content of the December 12, 2012 proposed TMDL and was withheld in part. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 16 of 144 Page ID #:228 Ex. A, page 5 among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-096 08/15/2012 01:14 PM RE: Malibu Creek & Lagoon Benthic TMDL 5 Document 003385-096 is an email chain containing four emails between Jon Butcher, Cindy Lin, and Amy King. The email chain is a discussion concerning the content of the TMDL and contains one attachment, an internal memorandum submitted by Tetra Tech to EPA presenting an early analysis of how the “O/E ratio” (ratio of observed to expected taxa used in the December 12, 2012 proposed TMDL) approach may be used to interpret data. The attachment was withheld in full and the email chain was released in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to options for models of how to interpret data for use in the TMDL, as required by section 303(d) of the CWA. The attachment was used as part of the process of deciding how to present a data analysis in the TMDL. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 17 of 144 Page ID #:229 Ex. A, page 6 interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-097 08/15/2012 01:24 PM RE: Malibu Creek & Lagoon Benthic TMDL 5 Document 003385-097 is an email chain between Jon Butcher, Cindy Lin, and Amy King that was released in full. The email chain contains one attachment that was withheld in full. The attachment is a heavily edited, draft version of Tetra Tech’s “Nutrient Numeric Endpoints for TMDL Development: Malibu Creek Case Study,” discussing use of secondary indicators related to nutrient concentrations to predict impairment of beneficial uses of Malibu Creek. Tetra Tech provided the draft for EPA to evaluate potential use of the nutrient numeric endpoint framework in developing the December 12, 2012 proposed TMDL. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. This early, draft version of the case study was used as part of the process of determining whether to include the nutrient numeric endpoint framework in the TMDL. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 18 of 144 Page ID #:230 Ex. A, page 7 include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-102 08/27/2012 09:55 AM RE: Malibu TMDL 5 and 6 Document 003385-102 is an email chain containing three emails between Cindy Lin, Jon Butcher, and Amy King. The email chain is a discussion concerning the content of the December 12, 2012 proposed TMDL. The first email in the chain was withheld in part under Exemption 6, which is not challenged by Plaintiff. The third email in the chain was withheld in part and the remainder of the email chain was released in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 19 of 144 Page ID #:231 Ex. A, page 8 The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. 003385-106 08/27/2012 10:59 AM RE: Malibu TMDL 5 The withheld information in this document is fully contained within 003385-102 and is explained in that entry. 003385-112 09/06/2012 07:11 AM Malibu TMDL targets 5 Document 003385-112 is an email from Jon Butcher that contains one attachment. The attachment is a draft section of the December 12, 2012 proposed TMDL. The attachment was withheld in full and the email was released in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it is an internal, predecisional draft version of a section of the TMDL. It reflects EPA staff and contractor analyses and opinions related to the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-137 10/02/2012 01:54 PM Predraft Malibu TMDL 5 Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 20 of 144 Page ID #:232 Ex. A, page 9 Document 003385-137 is an email chain contained three emails. The first email in the chain, between Cindy Lin and Jon Butcher, discusses changes made to a draft section of the December 12, 2012 proposed TMDL and was withheld in part. This email chain also includes one attachment, which was released in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. 003385-146 11/01/2012 07:18 AM Malibu PHab 5 Document 003385-146 is an email from Jon Butcher to Amy King discussing potential content for the December 12, 2012 proposed TMDL and also includes draft sections of the TMDL. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 21 of 144 Page ID #:233 Ex. A, page 10 ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-158 10/23/2012 10:27 AM RE: LVMWD Ltr Dr Cindy Lin TMDL.docx 5 Document 003385-158 is an email chain containing six emails. The first five emails in the chain, between Jon Butcher and Cindy Lin, are a discussion concerning EPA’s responses to public comments solicited as part of the TMDL process and content to potentially include in the December 12, 2012 proposed TMDL, and were withheld in part. The sixth email was released in full. Part of the withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. Additionally, this discussion includes internal, predecisional deliberations about responses to public comments, in this case formal comments submitted by LVMWD. This discussion is part of the process of deciding how to effectively respond to public comments, including the nature and timing of EPA’s responses. This remaining withheld information is protected under Exemption 5's deliberative process privilege because it contains internal agency discussions reflecting staff analyses, advice, and recommendations relating to Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 22 of 144 Page ID #:234 Ex. A, page 11 EPA’s then-ongoing review of the public comment and evaluation of the public comment process concerning the Malibu Creek and Lagoon TMDL. The withheld information is internal to EPA. The withheld information is pre-decisional because it was created for the purpose of assisting EPA staff and contractors in reaching a decision on a response to public comments to the draft and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it represents staff opinions and judgments that were under consideration by the EPA and do not reflect final Agency decisions about a final response to comments. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL or an official response to public comments but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature or properly respond to public comments, and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and how to respond to public comments, and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not represent an official Agency decision or policy and instead reflects analysis and opinions on proposals still in development at the EPA. The withheld information is pre-decisional because it was created for the purpose of assisting EPA staff and contractors in reaching a decision on a response to public comments to the draft and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it represents staff opinions and judgments that were under consideration by the EPA and do not reflect final Agency decisions about a final response to comments. Release of this information would have a chilling effect on the Agency’s ability to have open and frank discussions among its staff and with contractors concerning the Agency's policy priorities with respect to public comment periods. Release would also interfere with the ability of staff and contractors to brief senior officials with a variety of options or ideas for processing public comments that may not ultimately be selected for Agency action. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately the position of the EPA or the U.S. Government. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 23 of 144 Page ID #:235 Ex. A, page 12 003385-162 10/23/2012 10:42 AM RE: LVMWD Ltr Dr Cindy Lin TMDL.docx 5 The redacted portions of this document are fully contained within 003385-158 and are explained in that entry. 003385-172 11/05/2012 11:43 AM RE: Malibu Plan Clin comments 6 The Exemption 6 redaction in this email chain is a personal phone number and is not challenged by Plaintiff. 003385-183 10/30/2012 11:04 AM RE: Reference sites 5 Document 003385-183 is an email chain containing two emails. The bottom email is explained in the entry for Document 003385- 184. The top email is from Jon Butcher to Cindy Lin and Amy King, and is a discussion concerning the content of the December 12, 2012 proposed TMDL. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 24 of 144 Page ID #:236 Ex. A, page 13 003385-184 10/26/2012 03:34 PM RE: Reference sites 5 Document 003385-184 is an email chain containing four emails between Jon Butcher, Cindy Lin, and Amy King. The email chain is a discussion concerning the content of the December 12, 2012 proposed TMDL. Each email was withheld in part. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-189 12/11/2012 12:04 PM EPA Malibu sediment load calc 5 Document 003385-189 is an email chain containing five emails. The second email, from Cindy Lin to Jon Butcher and Amy King, discusses potential content for the December 12, 2012 proposed TMDL and was withheld in part. The remainder of the email chain was released in full. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 25 of 144 Page ID #:237 Ex. A, page 14 The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. 003385-193 12/17/2012 02:21 PM Fw: EPA Malibu sediment load calc 5 The redacted portion of this document is fully contained in 003385-189 and is explained in that entry. 003385-198 12/11/2012 01:40 PM Malibu 7.4.1 5 Document 003385-198 is an email from Jon Butcher to Amy Kind and Cindy Lin. The withholdings in the email are fully contained within 003385-228 and are explained in that entry. The email includes an attachment, a draft section of the December 12, 2012 proposed TMDL, that was withheld in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 26 of 144 Page ID #:238 Ex. A, page 15 ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-199 12/06/2012 06:07 PM MOS 5 Document 003385-199 is an email from Jon Butcher to Cindy Lin that discusses the Margin of Safety (MOS) used in the December 12, 2012 proposed TMDL. The email was withheld in part. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 27 of 144 Page ID #:239 Ex. A, page 16 the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-200 12/08/2012 08:18 PM RE: For Section 1.3.2 (Malibu Creek & Tribs background) 5 Document 003385-200 is an email chain containing five emails between Amy King, Jon Butcher, and Cindy Lin discussing the level of detail to include in the December 12, 2012 proposed TMDL in a particular section. The first and second emails were withheld in part. The remainder of the email chain was released in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 28 of 144 Page ID #:240 Ex. A, page 17 The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. 003385-204 12/10/2012 05:42 PM RE: Latest version on SharePoint: EPA_Malibu_Creek- Lagoon_TMDL_(2012-12- 10)v1 5 Document 003385-204 is an email chain containing 13 emails between Cindy Lin, Jon Butcher, and Amy King that discuss potential content of the December 12, 2012 proposed TMDL. This chain includes one attachment, a draft section of the TMDL, that was withheld in full. The sixth and eighth emails were released in full. The remainder of the email chain was withheld in part. The withheld information is protected under Exemption 5’s deliberative process privilege because it is an internal, predecisional draft version of a section of the TMDL. It reflects EPA staff and contractor analyses and opinions related to the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 29 of 144 Page ID #:241 Ex. A, page 18 deliberative discussion concerning this issue. 003385-211 12/12/2012 09:17 AM RE: Malibu - final steps 5 and 6 Document 003385-211 is an email chain containing four emails between Jon Butcher, Amy King, and Cindy Lin that discuss potential content for the December 12, 2012 proposed TMDL. The first email was released in full. The remainder of the email chain was withheld in part. The fourth email contains an Exemption 6 redaction that is not challenged by Plaintiff. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-215 12/10/2012 04:39 AM RE: Malibu - some final pieces 5 Document 003385-215 is an email chain containing three attachments. The redacted portions of the email chain are fully contained within 003385-221 and are explained in that entry. The three attachments are each the same draft diagram in three different file formats. This draft diagram was being proposed for inclusion in the December 12, 2012 proposed TMDL. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 30 of 144 Page ID #:242 Ex. A, page 19 The withheld information is protected under Exemption 5’s deliberative process privilege because it is an internal, predecisional draft version of a section of the TMDL. It reflects EPA staff and contractor analyses and opinions related to the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-221 12/10/2012 07:48 AM RE: Malibu - some final pieces 5 Document 003385-221 is an email chain containing nine emails discussing project planning and potential content for the December 12, 2012 proposed TMDL. The third, fourth, seventh, and ninth emails were withheld in part. The remainder of the email chain was released in full. Part of the withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. This withheld information is deliberative because it reflects the personal opinions and Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 31 of 144 Page ID #:243 Ex. A, page 20 thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. The remaining withheld information is protected under Exemption 5’s deliberative process privilege because it is internal discussions about work planning and division of labor and includes a draft work plan. These discussions and the draft work plan are part of the process of deciding how to allocate resources to efficiently complete the TMDL. The withheld information is internal to EPA and its contractors. The withheld information is also pre-decisional because it was prepared for the purpose of, and, in fact, contributed to, assisting EPA decision-making regarding the review, analysis, and synthesis of information relevant to the development of the TMDL. Further, release of any of the above-described information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-226 12/11/2012 03:58 PM RE: Malibu 7.4.1 5 The redacted portions of this document are fully contained within 003385-228 and are explained in that entry. 003385-228 12/11/2012 04:19 PM RE: Malibu 7.4.1 5 and 6 Document 003385-228 is an email chain containing six emails. The first email was released in full. The remainder of the email chain was withheld in part. A portion of the second email was withheld pursuant to Exemption 6 and is not challenged by Plaintiff. The email chain is a discussion concerning potential content for the December 12, 2012 proposed TMDL. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 32 of 144 Page ID #:244 Ex. A, page 21 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-231 12/12/2012 09:39 AM RE: Malibu 10 5 Document 003385-231 is an email chain containing six emails between Jon Butcher, Cindy Lin, and Amy King discussing potential content for the December 12, 2012 proposed TMDL. The fifth email in the chain was released in full. The remainder of the email chain was withheld in part. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 33 of 144 Page ID #:245 Ex. A, page 22 opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author's selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-234 12/12/2012 09:41 AM RE: Malibu 10 5 The redacted portions of this document are fully contained in the entry for 003385-236 and are explained in that entry. 003385-236 12/12/2012 10:07 AM RE: Malibu 10 5 Document 003385-236 is an email chain containing seven emails between Jon Butcher, Cindy Lin, and Amy King discussing potential content for the December 12, 2012 proposed TMDL. The fifth, sixth, and seventh emails are fully contained in 003385- 231 and described in that entry. The first four emails were withheld in part. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 34 of 144 Page ID #:246 Ex. A, page 23 interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author's selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-239 12/12/2012 10:34 AM RE: Malibu 10 5 The withholdings in this document are fully contained within 003385-231 and are explained in that entry. 003385-243 12/09/2012 11:28 AM RE: Malibu draft Sun version 5 and 6 Document 003385-243 is an email chain containing three emails between Jon Butcher, Amy King, and Cindy Lin discussing potential content for the December 12, 2012 proposed TMDL. The third email in the chain was withheld in part pursuant to Exemptions 5 and 6. Plaintiff does not challenge the portion withheld pursuant to Exemption 6. The remainder of the email chain was released in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 35 of 144 Page ID #:247 Ex. A, page 24 The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. 003385-245 12/10/2012 08:56 AM RE: Malibu Latest version "Malibu....TMDL....v2" 5 Document 003385-245 is an email chain containing two emails between Jon Butcher, Cindy Lin, and Amy King discussing ways to organize potential content in two different chapters of the December 12, 2012 proposed TMDL. Both emails were withheld in part. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-246 12/10/2012 05:13 AM RE: Malibu Latest version "Malibu....TMDL....v2" 5 Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 36 of 144 Page ID #:248 Ex. A, page 25 The withheld portion of this document is fully contained in 003385-245 and is explained in that entry. 003385-247 12/04/2012 07:30 AM RE: Malibu nutrient endpoints 5 and 6 Document 003385-247 is an email chain containing eight emails between Cindy Lin, Jon Butcher, and Amy King discussing how to explain certain calculations related to nutrient endpoints in the December 12, 2012 proposed TMDL. The first email was withheld in part pursuant to Exemption 6 and is not challenged by Plaintiff. The fifth, sixth, seventh, and eighth emails were withheld in part. The remainder of the email chain was released in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-254 12/11/2012 10:56 PM RE: Malibu nutrient targets language (Invitation to comment) 5 The withheld portions of this document are fully contained within 003385-257 and are explained in that entry. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 37 of 144 Page ID #:249 Ex. A, page 26 003385-257 12/12/2012 12:17 AM RE: Malibu nutrient targets language (Invitation to comment) 5 Document 003385-257 is an email chain containing five emails between Cindy Lin, Amy King, and Jon Butcher discussing potential content for the December 12, 2012 proposed TMDL and includes draft sections of the TMDL. The second, fourth, and fifth emails were withheld in part. The remainder of the email chain was released in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-262 12/12/2012 08:19 AM RE: Malibu nutrient targets language (Invitation to comment) 5 Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 38 of 144 Page ID #:250 Ex. A, page 27 Document 003385-262 is an email chain containing five emails between Amy King, Cindy Lin, and Jon Butcher discussing potential content for the TMDL and includes draft sections of the December 12, 2012 proposed TMDL. The third, fourth, and fifth emails are fully contained in 003385-257 and are explained in that entry. The first and second emails were withheld in part. The withheld information is protected under Exemption 5’s deliberative process privilege because it is an internal, predecisional draft version of a section of the TMDL. It reflects EPA staff and contractor analyses and opinions related to the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-266 12/06/2012 06:06 AM RE: Malibu nutrients 5 Document 003385-266 is an email chain containing three emails between Jon Butcher, Cindy Lin, and Amy King discussing potential content for various sections of the December 12, 2012 proposed TMDL and includes drafts of those sections. This email chain was withheld in part. The withheld information is protected under Exemption 5’s deliberative process privilege because it is an internal, predecisional draft version of a section of the TMDL. It reflects EPA staff and contractor analyses and opinions related to the TMDL, as required Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 39 of 144 Page ID #:251 Ex. A, page 28 by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-274 12/08/2012 10:57 AM RE: Malibu Status 5 Document 003385-274 is an email chain containing seven emails between Amy King, Cindy Lin, and Jon Butcher discussing which content to include in various sections of the December 12, 2012 proposed TMDL. The email chain was withheld in part. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 40 of 144 Page ID #:252 Ex. A, page 29 would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-276 12/08/2012 07:30 AM RE: Malibu Status 5 Document 003385-276 is fully contained within Document 003385-274. The withholdings for this document are explained in the entry for Document 003385-274. 003385-278 12/12/2012 08:29 AM RE: Modelo vs non-modelo 5 Document 003385-278 is an email chain containing six emails between Amy King, Cindy Lin, and Jon Butcher describing potential content for the December 12, 2012 proposed TMDL. The first email was released in full. The remainder of the email chain was withheld in part. The withheld information is protected under Exemption 5’s deliberative process privilege because it is an internal, predecisional draft version of a section of the TMDL. It reflects EPA staff and contractor analyses and opinions related to the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 41 of 144 Page ID #:253 Ex. A, page 30 interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-281 12/12/2012 09:21 AM RE: NNE Lessons/Issues 5 Document 003385-281 is an email chain containing four emails between Jon Butcher, Terrence Fleming, Cindy Lin, and Martha Sutula discussing potential content for the December 12, 2012 proposed TMDL. The second, third, and fourth emails are fully contained within 003385-283 and are explained in that entry. The first email was withheld in part. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 42 of 144 Page ID #:254 Ex. A, page 31 development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-283 12/12/2012 09:32 AM RE: NNE Lessons/Issues 5 Document 003385-283 an email chain containing 4 emails between Jon Butcher, Terrence Fleming, Cindy Lin, and Martha Sutula discussing potential content for the December 12, 2012 proposed TMDL. The email chain was withheld in part. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-285 12/07/2012 12:08 PM RE: Nutrient allocations for Malibu 5 Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 43 of 144 Page ID #:255 Ex. A, page 32 Document 003385-285 is an email chain containing four emails between Jon Butcher, Cindy Lin, and Amy King discussing potential content for the December 12, 2012 proposed TMDL. The email chain was withheld in part. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-288 12/10/2012 05:07 PM RE: Nutrient Table 7-10 5 Document 003385-288 is an email chain containing 11 emails between Cindy Lin, Amy King, Jon Butcher, and Ann Lincoln discussing both potential content of the December 12, 2012 proposed TMDL and how to organize it. The email chain was withheld in part. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 44 of 144 Page ID #:256 Ex. A, page 33 of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-295 12/07/2012 12:39 PM RE: targets 5 Document 003385-295 is an email chain containing three emails between Cindy Lin and Amy King discussing nutrient targets to include in the December 12, 2012 proposed TMDL. The second email was released in full. The remainder of the email chain was withheld in part. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 45 of 144 Page ID #:257 Ex. A, page 34 would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-298 12/03/2012 05:27 PM RE: TSS vs Turbidity 5 Document 003385-298 is an email chain containing three emails between Cindy Lin, Jon Butcher, Amy King, and Peter Husby discussing potential content for and how much detail to include in certain sections of the December 12, 2012 proposed TMDL. The email chain was withheld in part. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 46 of 144 Page ID #:258 Ex. A, page 35 The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-301 12/07/2012 02:30 PM RE: TSS vs Turbidity 5 Document 003385-301 is an email chain containing three emails, the withholdings of which are fully contained in 003385-298 and explained in that entry. This email chain also includes one attachment, a draft section of the December 12, 2012 proposed TMDL, that was withheld in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 47 of 144 Page ID #:259 Ex. A, page 36 described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-304 12/06/2012 10:19 AM Schedule Malibu 5 Document 003385-304 is an email chain containing four emails between Cindy Lin, Amy King, and Jon Butcher discussing project planning and potential content for the December 12, 2012 proposed TMDL. The third and fourth emails were withheld in part. The remainder of the email chain was released in full. Part of the withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. This withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. The remaining withheld information is protected under Exemption 5’s deliberative process privilege because it is internal discussions about work planning and division of labor and includes a draft work plan. These discussions and the draft work plan are part of the process of deciding how to allocate resources to efficiently complete the TMDL. The withheld information is internal to EPA and its contractors. The withheld information is also pre-decisional because it was prepared for the purpose of, and, in fact, contributed to, assisting EPA decision-making regarding the review, analysis, and synthesis of information relevant to the development of the TMDL. Further, release of any of the above-described information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 48 of 144 Page ID #:260 Ex. A, page 37 available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-317 01/31/2013 01:49 PM RE: LVMWD TMDL Comments 5 Document 003385-317 is an email chain containing four emails between Amy King, Jon Butcher, and Cindy Lin discussing the evaluation of data for the July 2, 2013 final TMDL in response to a comment from the LVMWD. The second email was withheld in part. The remainder of the email chain was released in full. The withheld information is protected under Exemption 5's deliberative process privilege because it contains an internal agency discussion reflecting staff analyses, advice, and recommendations relating to EPA’s then-ongoing review of the public comment and evaluation of the public comment process concerning the Malibu Creek and Lagoon TMDL. This discussion is part of the process of deciding how to effectively respond to public comments, including the nature and timing of EPA’s responses. The withheld information is internal to EPA. The withheld information does not represent an official Agency decision or policy and instead reflects analysis and opinions on proposals still in development at the EPA. The withheld information is pre-decisional because it was created for the purpose of assisting EPA staff and contractors in reaching a decision on a response to public comments to the draft and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it represents staff opinions and judgments that were under consideration by the EPA and do not reflect final Agency decisions about a final response to comments. Release of this information would have a chilling effect on the Agency’s ability to have open and frank discussions among its staff and with contractors concerning the Agency's policy priorities with respect to public comment periods. Release would also interfere with the ability of staff and contractors to brief senior officials with a variety of options or ideas for processing public comments that may not ultimately be selected for Agency action. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately the position of the EPA or the U.S. Government. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-322 01/15/2013 12:12 PM RE: Malibu Creek and Lagoon Benthics TMDL 5 Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 49 of 144 Page ID #:261 Ex. A, page 38 Document 003385-322 is an email chain containing three emails between Jon Butcher, Cindy Lin, and Amy King discussing feedback from an informational workshop with the Los Angeles County Department of Public Works. The withheld portions contain a conversation about potential content for the July 2, 2013 final TMDL. The first two emails were withheld in part. The bottom email, between EPA and Los Angeles County, was released in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-329 01/23/2013 04:22 PM RE: Points from TMDL workshop 5 Document 003385-329 is an email chain containing four emails between Amy King, Cindy Lin, and Jon Butcher discussing topics to address in the July 2, 2013 final TMDL. The fourth email was withheld in part. The remainder of the email chain was released in full. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 50 of 144 Page ID #:262 Ex. A, page 39 The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-335 02/27/2013 11:03 AM LVMWD tech comments tracking 5 Document 003385-335 is an email from Cindy Lin to Jon Butcher that contains one attachment, a tracking sheet that lists various public comments to the TMDL and provides staff feedback for responding to the comments. The attachment was withheld in full. The email was released in full. The withheld attachment is protected under Exemption 5's deliberative process privilege because it contains internal agency comments reflecting staff analyses, advice, and recommendations relating to EPA’s then-ongoing review of public comments and how to respond to the public comments concerning the Malibu Creek and Lagoon TMDL. The information in the attachment was used as part of the process of deciding on the content of EPA’s responses. The withheld information is internal to EPA. The withheld information does not represent an official Agency decision or policy and instead reflects analysis and opinions on Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 51 of 144 Page ID #:263 Ex. A, page 40 proposals still in development at the EPA. The withheld information is pre-decisional because it was created for the purpose of assisting EPA staff and contractors in responding to public comments to the TMDL and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it represents staff opinions and judgments that were under consideration by the EPA and do not reflect final Agency decisions about a final response to comments. Release of this information would have a chilling effect on the Agency’s ability to have open and frank discussions among its staff and with contractors concerning the Agency's policy priorities with respect to public comment periods. Release would also interfere with the ability of staff and contractors to brief senior officials with a variety of options or ideas for processing public comments that may not ultimately be selected for Agency action. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately the position of the EPA or the U.S. Government. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning responses to public comments. 003385-336 02/27/2013 11:31 AM LVMWD Technical Comments Response Tracking 5 Document 003385-336 is an email from Cindy Lin to Amy King and Jon Butcher that contains one attachment. The email was released in full. The attachment, which was withheld in full, is identical to the attachment to 003385-335 and is explained in that entry. 003385-341 02/28/2013 5:00 AM RE: LVMWD Technical Comments Response Tracking 5 Document 003385-341 is an email chain of two emails between Jon Butcher, Cindy Lin, and Amy King that contains two attachments. Both emails were released in full. Both attachments were withheld in full. The first attachment, “LVMWD technical RTC tracking sheet initial responses.xlsx,” is the same tracking sheet described in the entry for 003385-335. The second attachment, “Malibu comment responses-jbb.docx” is a document containing early-stage draft responses to public comments and Mr. Butcher’s analyses regarding the comments. The withheld information is protected under Exemption 5's deliberative process privilege because it contains internal agency discussions reflecting staff analyses, advice, and recommendations relating to EPA’s then-ongoing review of public comments and evaluation of the public comment process concerning the Malibu Creek and Lagoon TMDL. The attachments were used as part of the process of deciding how to effectively respond to public comments, including the nature and timing of EPA’s responses. The Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 52 of 144 Page ID #:264 Ex. A, page 41 withheld information is internal to EPA. The withheld information does not represent an official Agency decision or policy and instead reflects analysis and opinions on proposals still in development at the EPA. The withheld information is pre-decisional because it was created for the purpose of assisting EPA staff and contractors in reaching a decision on a response to public comments to the draft and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it represents staff opinions and judgments that were under consideration by the EPA and do not reflect final Agency decisions about a final response to comments. Release of this information would have a chilling effect on the Agency’s ability to have open and frank discussions among its staff and with contractors concerning the Agency's policy priorities with respect to public comment periods. Release would also interfere with the ability of staff and contractors to brief senior officials with a variety of options or ideas for processing public comments that may not ultimately be selected for Agency action. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately the position of the EPA or the U.S. Government. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning how to respond to public comments. 003385-342 February 27, 2013 6:49:48 AM RE: Malibu Comments / Letters / Etc. 5 Document 003385-342 is an email chain containing three emails between Todd Kennedy, Cindy Lin, Amy King, Jon Butcher, Michael Paul, and Hillary Nicholas discussing EPA responses to public comments and potential content to include in the July 2, 2013 final TMDL. The third email was withheld in part and the remainder of the email chain was released in full. The withheld information pertains only to potential content to include in the TMDL. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 53 of 144 Page ID #:265 Ex. A, page 42 opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. 003385-352 March 07, 2013 1:07:55 PM Malibu comments 5 Document 003385-352 is an email from Jon Butcher to Cindy Lin, Ann Lincoln, and Amy King that contains one attachment. The attachment, a document containing staff opinions on public comments and early-stage draft responses, was withheld in full. The email was released in full. The withheld information is protected under Exemption 5's deliberative process privilege because it contains internal agency discussions reflecting staff analyses, advice, and recommendations relating to EPA’s then-ongoing review of the public comment and evaluation of the public comment process concerning the Malibu Creek and Lagoon TMDL. The attachment of draft comments was used as part of the process of deciding on the content of EPA’s responses to various public comments. The withheld information is internal to EPA. The withheld information does not represent an official Agency decision or policy and instead reflects analysis and opinions on the content of the incoming public comments and the content of draft EPA responses. The withheld information is pre-decisional because it was created for the purpose of assisting EPA staff and contractors in reaching a decision on how to respond to the public comments and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it represents staff opinions and judgments that were under consideration by the EPA and do not reflect final Agency decisions about a final response to comments. Release of this information would have a chilling effect on the Agency’s ability to have open and frank discussions among its staff and with contractors concerning the Agency's policy priorities with respect to public comment periods. Release would also interfere with the ability of staff and contractors to brief senior officials with a variety of options or ideas for processing public comments that may not ultimately be selected for Agency action. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately the position of the EPA or the U.S. Government. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 54 of 144 Page ID #:266 Ex. A, page 43 The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-353 March 07, 2013 12:36:09 PM Malibu uses 5 Document 003385-353 is an email from Jon Butcher to Cindy Lin and Amy King that contains Mr. Butcher’s impressions on a public comment to the TMDL. The email was withheld in part. The withheld information is protected under Exemption 5's deliberative process privilege because it contains Mr. Butcher’s analysis and recommendation regarding one public comment received in response to the TMDL. This discussion was part of the process of deciding how to respond to the public comment. The withheld information is internal to EPA. The withheld information does not represent an official Agency decision or policy and instead reflects analysis and opinions on how to respond to the comment, which was still in development at the EPA. The withheld information is pre-decisional because it was created for the purpose of assisting EPA staff and contractors in reaching a decision on a response to the public comment and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it represents a contractor’s opinions and judgments that were under consideration by the EPA and do not reflect final Agency decisions about a final response to the comment. Release of this information would have a chilling effect on the Agency’s ability to have open and frank discussions among its staff and with contractors concerning the Agency's policy priorities with respect to public comment periods. Release would also interfere with the ability of staff and contractors to brief senior officials with a variety of options or ideas for processing public comments that may not ultimately be selected for Agency action. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately the position of the EPA or the U.S. Government. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-354 March 04, 2013 8:47:27 AM Malibu 5 Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 55 of 144 Page ID #:267 Ex. A, page 44 Document 003385-354 is an email from Jon Butcher to Cindy Lin and Amy King that contains one attachment. The attachment is a document containing Mr. Butcher’s analyses on various public comments and includes draft responses to public comments and was withheld in full. The email was released in full. The withheld information is protected under Exemption 5's deliberative process privilege because it contains internal agency discussions reflecting staff analyses, advice, and recommendations relating to EPA’s then-ongoing review of the public comment and evaluation of responses to public comments on the TMDL. The attachment was used as part of the process of deciding on what content to include in EPA’s responses to various public comments. The withheld information is internal to EPA. The withheld information does not represent an official Agency decision or policy and instead reflects analysis and opinions on the content of the incoming public comments and the content of draft EPA responses. The withheld information is pre-decisional because it was created for the purpose of assisting EPA staff and contractors in reaching a decision on how to respond to the public comments and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it represents staff opinions and judgments that were under consideration by the EPA and do not reflect final Agency decisions about a final response to comments. Release of this information would have a chilling effect on the Agency’s ability to have open and frank discussions among its staff and with contractors concerning the Agency's policy priorities with respect to public comment periods. Release would also interfere with the ability of staff and contractors to brief senior officials with a variety of options or ideas for processing public comments that may not ultimately be selected for Agency action. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately the position of the EPA or the U.S. Government. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-359 March 06, 2013 12:31:40 PM RE: LVMWD 5 Document 003385-359 is an email chain containing two emails between Cindy Lin, Jon Butcher, and Amy King discussing EPA’s response to a public comment submitted by LVMWD and includes drafts of a response to the comment. The email string was withheld in part. The withheld information is protected under Exemption 5's deliberative process privilege because it contains internal agency discussions reflecting staff analyses, advice, and recommendations relating to EPA’s then-ongoing review of the public comment and its response. This discussion is part of the process of deciding how EPA should respond to the public comment submitted by Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 56 of 144 Page ID #:268 Ex. A, page 45 LVMWD. The withheld information is internal to EPA. The withheld information does not represent an official Agency decision or policy and instead reflects analysis and opinions on the content of the incoming public comment from LVMWD and the content of EPA’s response. The withheld information is pre-decisional because it was created for the purpose of assisting EPA staff and contractors in reaching a decision on how to respond to the public comment and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it represents staff opinions and judgments that were under consideration by the EPA and do not reflect final Agency decisions about a final response to the comment. Release of this information would have a chilling effect on the Agency’s ability to have open and frank discussions among its staff and with contractors concerning the Agency's policy priorities with respect to public comment periods. Release would also interfere with the ability of staff and contractors to brief senior officials with a variety of options or ideas for processing public comments that may not ultimately be selected for Agency action. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately the position of the EPA or the U.S. Government. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-361 February 28, 2013 7:32:32 AM RE: Malibu Comments / Letters / Etc. 5 The redacted portion is identical to the redacted portion in 003385-342 and is explained in that entry. 003385-364 March 04, 2013 8:56:00 AM RE: Malibu TMDL - weekly status/comment discussion 6 The exemption 6 redaction in this document is not challenged by Plaintiff. 003385-365 March 11, 2013 10:20:00 AM RE: Malibu TMDL – weekly status/comment discussion 6 The exemption 6 redaction in this document is not challenged by Plaintiff. 003385-372 March 12, 2013 1:00:10 PM RE: Relative Nutrient loads 5 Document 003385-372 is an email chain containing eight emails between Cindy Lin, Jon Butcher, Amy King, and Gregory Sousa discussing methodologies for evaluating data for potential inclusion in the July 2, 2013 final TMDL. The third, fourth, and fifth emails were withheld in part. The remainder of the email chain was released in full. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 57 of 144 Page ID #:269 Ex. A, page 46 The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-381 April 09, 2013 8:05:17 AM Malibu Schedule 5 Document 003385-381 is an email from Amy King to Jon Butcher, Ann Lincoln, Michael Paul, and Cindy Lin that contains one attachment. The email was released in full. The attachment is a proposed schedule for completion of the July 2, 2013 final TMDL and was withheld in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it is internal discussions about work planning and constitutes a draft work plan. These discussions and the proposed schedule are part of the process of deciding how to allocate resources to efficiently complete the TMDL. The withheld information is internal to EPA and its contractors. The withheld information is pre-decisional because it was generated prior to the publication of the TMDL. The withheld information is also pre-decisional because it was prepared for the purpose of, and, in fact, contributed to, assisting EPA decision-making regarding the review, analysis, and synthesis of information relevant to the development of the TMDL. The withheld information is Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 58 of 144 Page ID #:270 Ex. A, page 47 deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions on analysis that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific documents of this nature and have a chilling effect on candid discussions among EPA staff and EPA scientists concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-386 March 29, 2013 10:58:53 AM RE: call tomorrow? 5 Document 003385-386 is an email chain of four emails between Amy King and Cindy Lin that contains one attachment. The email chain was released in full. The attachment is a proposed schedule for completion of the July 2, 2013 final TMDL and was withheld in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it is internal discussions about work planning and constitutes a draft work plan. These discussions and the proposed schedule are part of the process of deciding how to allocate resources to efficiently complete the TMDL. The withheld information is internal to EPA and its contractors. The withheld information is pre-decisional because it was generated prior to the publication of the TMDL. The withheld information is also pre-decisional because it was prepared for the purpose of, and, in fact, contributed to, assisting EPA decision-making regarding the review, analysis, and synthesis of information relevant to the development of the TMDL. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions on analysis that were still in development at EPA. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 59 of 144 Page ID #:271 Ex. A, page 48 Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific documents of this nature and have a chilling effect on candid discussions among EPA staff and EPA scientists concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-387 March 29, 2013 11:43:00 AM RE: call tomorrow? 5 Document 003385-387 is an email chain of five emails between Cindy Lin and Amy King that contains one attachment. The email chain was released in full. The attachment is a proposed schedule for responding to public comments and for completion of the July 2, 2013 final TMDL, and includes a proposed list of which comments to address first. The attachment was withheld in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it is an internal discussion about work planning and division of labor, and constitutes a draft work plan. The proposed schedule is part of the process of deciding how to allocate resources to efficiently complete the TMDL. Additionally, the proposed schedule was used as part of the process of deciding which comments should be prioritized and addressed first. The withheld information is internal to EPA and its contractors. The withheld information is pre-decisional because it was generated prior to the publication of the TMDL. The withheld information is also pre-decisional because it was prepared for the purpose of, and, in fact, contributed to, assisting EPA decision- making regarding the review, analysis, and synthesis of information relevant to the development of the TMDL The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions on analysis that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific documents of this nature and have a chilling effect on candid discussions among EPA staff and EPA scientists concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 60 of 144 Page ID #:272 Ex. A, page 49 consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-399 March 15, 2013 8:02:45 AM RE: O/E results 5 Document 003385-399 is an email chain containing 22 emails between Michael Paul, Ann Lincoln, Amy King, Cindy Lin, and Jon Butcher discussing approaches to modeling the data for the July 2, 2013 final TMDL. The email chain was withheld in part. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. This discussion was part of the process of deciding which approach to take in modeling the data for the TMDL. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 61 of 144 Page ID #:273 Ex. A, page 50 The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-411 March 15, 2013 7:59:42 AM RE: O/E results 5 Document 003385-411 is fully contained in in Document 003385-399 and is explained in that entry. 003385-423 March 15, 2013 7:49:38 AM RE: O/E results 5 Document 003385-423 is fully contained in in Document 003385-399 and is explained in that entry. 003385-434 March 15, 2013 7:49:24 AM RE: O/E results 5 Document 003385-434 is an email chain that is an email chain containing 22 emails. The bottom 21 emails are fully contained within 003385-399 and are explained in that entry. The top email is from Michael Paul to Jon Butcher, Ann Lincoln, Cindy Lin, and Amy King and discusses approaches to modeling the data for the July 2, 2013 final TMDL. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. This discussion was part of the process of deciding which approach to take in modeling the data for the TMDL. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 62 of 144 Page ID #:274 Ex. A, page 51 The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-445 March 15, 2013 7:41:03 AM RE: O/E results 5 Document 003385-445 is fully contained in Document 003385-399 and is explained in that entry. 003385-456 March 14, 2013 12:13:32 PM RE: O/E results 5 Document 003385-456 is fully contained in Document 003385-399 and is explained in that entry. 003385-462 March 15, 2013 11:10:03 AM RE: O/E results 5 The withheld portions of Document 003385-411 are fully contained in Document 003385-399 and are explained in that entry. 003385-468 March 29, 2013 2:51:24 PM RE: Relative Nutrient loads 5 Document 003385-468 is an email chain containing nine emails between Amy King, Cindy Lin, Jon Butcher, and Gregory Sousa discussing potential content related to nutrient loads for inclusion in the July 2, 2013 final TMDL. The first, fourth, fifth, and sixth emails were withheld in part. The remainder of the email chain was released in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 63 of 144 Page ID #:275 Ex. A, page 52 The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-472 March 14, 2013 9:14:55 AM RE: Scoring Thresholds 5 Document 003385-472 is an email chain containing four emails between Ann Lincoln, Michael Paul, Cindy Lin, and Jon Butcher discussing methodologies to be used in the July 2, 2013 final TMDL. The second email was withheld in part. The remainder of the email chain was released in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 64 of 144 Page ID #:276 Ex. A, page 53 003385-476 April 28, 2013 8:55:37 PM FW: Malibu load calculations 5 Document 003385-476 is an email chain containing two emails between Amy King, Cindy Lin, Jon Butcher, Ann Lincoln, and Michael Paul presenting example nutrient loading options for internal discussion regarding which option to use for the July 2, 2013 final TMDL. The first email was released in full and the second email was withheld in part. The first email includes one attachment, a spreadsheet presenting the different options for discussion, that was withheld in full. The withheld information in both the second email and the attachment is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. This discussion was part of the process of deciding which approach to take in interpreting data for the TMDL. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-480 May 07, 2013 1:50:05 PM Malibu Allocation table with Tapia summer scenario 5 Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 65 of 144 Page ID #:277 Ex. A, page 54 Document 003385-480 is an email from Amy King to Cindy Lin and Jon Butcher presenting draft calculations of summer nutrient loads for internal discussion regarding which option to use for the July 2, 2013 final TMDL and contains one attachment. The email was withheld in part and the attachment, a spreadsheet presenting different options for discussion, was withheld in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. This discussion was part of the process of deciding which approach to take in interpreting data for the TMDL. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-481 May 05, 2013 9:19:55 PM Malibu allocations 5 Document 003385-481 is an email from Amy King to Cindy Lin and Jon Butcher that includes one attachment. The email was released in full. The attachment is a draft spreadsheet containing flow and water quality data, and preliminary load and allocation calculations, prepared for internal discussion about what content to include in the July 2, 2013 final TMDL. The attachment was withheld in full. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 66 of 144 Page ID #:278 Ex. A, page 55 The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The attachment was used as part of the process of deciding which approach to take in interpreting data for the TMDL. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-482 April 25, 2013 3:52:12 PM Malibu CSCI results 5 Document 003385-482 is an email from Ann Lincoln to Michael Paul, Jon Butcher, Amy King, and Cindy Lin discussing preliminary data analysis for the July 2, 2013 final TMDL that was withheld in part. The email contains two attachments that are spreadsheets containing data interpretations. Both attachments were withheld in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The attachments were used as part of the process of deciding which approach to take in modeling the data for the TMDL. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 67 of 144 Page ID #:279 Ex. A, page 56 assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-483 April 29, 2013 11:19:57 AM Malibu load calculations 5 Document 003385-483 is an email from Amy King to Cindy Lin presenting example nutrient loading options for use in the July 2, 2013 final TMDL for internal discussion. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 68 of 144 Page ID #:280 Ex. A, page 57 among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-484 April 18, 2013 12:51:48 PM Malibu slides for call 5 Document 003385-484 is an email from Amy King to Ann Lincoln, Michael Paul, Jon Butcher, and Cindy Lin that was released in full. The email has one attachment that was withheld in full. The attachment is a PowerPoint presentation entitled, “Malibu Creek Watershed Discussion on Results of O/E and MMI Analyses,” and was created to aid in the discussion concerning what content to include in the July 2, 2013 final TMDL related to these particular analyses. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 69 of 144 Page ID #:281 Ex. A, page 58 The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-486 April 15, 2013 11:22:23 AM O/E, MMI, and CSCI scores organized & formatted 5 Document 003385-486 is an email from Ann Lincoln to Jon Butcher, Amy King, Michael Paul, and Cindy Lin presenting preliminary modeling results for internal discussion about what content to include in the July 2, 2013 final TMDL and was withheld in part. The email contains one attachment that was withheld in full. The attachment is a draft spreadsheet that contains model scores that was used in the discussion about what content to include in the July 2, 2013 final TMDL. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The discussion and draft spreadsheet were part of the process of deciding which approach to take in modeling the data for the TMDL. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 70 of 144 Page ID #:282 Ex. A, page 59 development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-487 May 10, 2013 2:30:17 PM RE: "other sources" 5 Document 003385-487 is an email chain containing two emails between Amy King and Cindy Lin discussing sources of nutrient loading for possible inclusion in the July 2, 2013 final TMDL. The first email was released in full and the second email was withheld in part. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-488 April 17, 2013 8:45:53 PM RE: 4/19 Draft Agenda for Mtg w/ SCCWRP 5 and 6 Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 71 of 144 Page ID #:283 Ex. A, page 60 Document 003385-488 is an email chain containing three emails between Amy King, Cindy Lin, Jon Butcher, Ann Lincoln, and Michael Paul discussing a draft agenda of a meeting where staff discussed options for presenting specific content in the July 2, 2013 final TMDL and how best to approach the discussion. The first email was withheld in part pursuant to Exemption 6, which is not challenged by plaintiff. The second email was withheld in part pursuant to Exemption 5. The remainder of the email chain was released in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. Additionally, this discussion regards internal work planning and division of labor. The part of the discussion regarding work planning is part of the process of deciding how to divide labor to ensure that the meeting included the necessary discussions on the content of the TMDL. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL and in the review, analysis, and synthesis of information relevant to the development of the TMDL, and did, in fact, assist agency decisionmakers in those regards. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-494 May 20, 2013 8:36:42 AM RE: Loading Duration Curve 5 and 6 Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 72 of 144 Page ID #:284 Ex. A, page 61 Document 003385-494 is an email chain containing 10 emails between Amy King, Cindy Lin, and Jon Butcher discussing ways to present data in the July 2, 2013 final TMDL. The email chain was withheld in part and contains one attachment of draft figures for the TMDL, for internal discussion. This document also contains one redaction made pursuant to Exemption 6, which is not challenged by Plaintiff. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-497 May 20, 2013 2:14:43 PM RE: Loading Duration Curve 5 and 6 Document 003385-497 is an email chain the withheld portions of which are fully contained in Document 003385-494 and are explained in that entry. The top email contains one attachment, draft graphs for possible inclusion in the July 2, 2013 final TMDL that was withheld in full. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 73 of 144 Page ID #:285 Ex. A, page 62 The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-500 May 17, 2013 12:52:35 PM RE: Malibu Flow data 5 Document 003385-500 is an email chain containing five emails between Jon Butcher, Erica Hanley, Amy King, and Cindy Lin discussing data gathered from the Malibu Creek and Lagoon for potential inclusion in the July 2, 2013 final TMDL. The fifth email was withheld in part. The remainder of the email chain was released in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 74 of 144 Page ID #:286 Ex. A, page 63 ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-503 April 23, 2013 7:59:45 PM RE: Malibu LVMWD RTC 5 Document 003385-503 is an email chain containing six emails between Amy King, Cindy Lin, and Jon Butcher discussing a strategy for responding to public comments to the July 2, 2013 final TMDL. The first, fourth, fifth, and sixth emails were withheld in part. The remainder of the email chain was released in full. The withheld information is protected under Exemption 5's deliberative process privilege because it contains internal agency discussions reflecting staff analyses, advice, and recommendations relating to EPA’s then-ongoing review of and evaluation of public comments on the TMDL, and EPA’s internal plan for issuing formal responses to the public comments. This discussion was part of the process of deciding how to effectively respond to public comments, including the nature and timing of EPA’s responses. The withheld information is internal to EPA. The withheld information does not represent an official Agency decision or policy and instead reflects analysis and opinions on the content of the incoming public comments and the content of draft EPA responses. The withheld information is pre-decisional because it was created for the purpose of assisting EPA staff and contractors in reaching a decision on how to respond to the public comments and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it represents staff opinions and judgments that were under consideration by the EPA and do not reflect final Agency decisions about a final response to comments. Release of this information would have a chilling effect on the Agency’s ability to have open and frank discussions among its staff and with contractors concerning the Agency's policy priorities with respect to public comment periods. Release would also interfere with the ability of staff and contractors to brief senior officials Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 75 of 144 Page ID #:287 Ex. A, page 64 with a variety of options or ideas for processing public comments that may not ultimately be selected for Agency action. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately the position of the EPA or the U.S. Government. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-506 April 23, 2013 11:56:00 AM RE: Malibu LVMWD RTC 5 Document 003385-506 is fully contained within Document 003385-503 and is explained in that entry. 003385-509 April 23, 2013 11:53:00 AM RE: Malibu LVMWD RTC 5 The withheld portions in Document 003385-509 are fully contained within Document 003385-503 and are explained in that entry. 003385-512 April 24, 2013 4:36:24 AM RE: Malibu LVMWD RTC 5 Document 003385-512 is an email chain between Jon Butcher, Amy King, and Cindy Lin. The first email in the chain is a response to a discussion about EPA’s response to public comments and was withheld in part. The remaining withholdings are fully contained within 003385-503 and are explained in that entry. The withheld information is protected under Exemption 5's deliberative process privilege because it contains internal agency discussions reflecting staff analyses, advice, and recommendations relating to EPA’s then-ongoing review of and evaluation of public comments on the TMDL, and EPA’s internal plan for issuing formal responses to the public comments. This discussion was part of the process of deciding how to effectively respond to public comments, including the nature and timing of EPA’s responses. The withheld information is internal to EPA. The withheld information does not represent an official Agency decision or policy and instead reflects analysis and opinions on the content of the incoming public comments and the content of draft EPA responses. The withheld information is pre-decisional because it was created for the purpose of assisting EPA staff and contractors in reaching a decision on how to respond to the public comments and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it represents staff opinions and judgments that were under consideration by the EPA and do not reflect final Agency decisions about a final response to comments. Release of this information would have a chilling effect on the Agency’s ability to have open and frank discussions among its staff and with contractors concerning the Agency's policy priorities with respect to public comment periods. Release would also interfere with the ability of staff and contractors to brief senior officials with a variety of options or ideas for processing public comments that may not ultimately be selected for Agency action. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 76 of 144 Page ID #:288 Ex. A, page 65 Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately the position of the EPA or the U.S. Government. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-515 April 18, 2013 10:29:10 AM RE: Malibu O/E, MMI 5 Document 003385-515 is an email chain containing five emails between Ann Lincoln, Michael Paul, Jon Butcher, and Amy King discussing data and analysis for possible inclusion in the July 2, 2013 final TMDL. The email chain includes four attachments that were withheld in full. Three of the attachments are draft graphs that appear and were redacted in the email chain. The fourth attachment is a draft spreadsheet that represents a compilation of data chosen by staff for possible inclusion in the July 2, 2013 final TMDL. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 77 of 144 Page ID #:289 Ex. A, page 66 The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-521 April 18, 2013 1:02:08 PM RE: Malibu slides for call 5 Document 003385-521 is an email chain between Amy King, Ann Lincoln, Michael Paul, Jon Butcher, and Cindy Lin that was released in full. The email chain contains one attachment that was withheld in full. The attachment is a selection of draft PowerPoint slides created to assist in a discussion about what content to include in the July 2, 2013 final TMDL. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 78 of 144 Page ID #:290 Ex. A, page 67 003385-522 April 22, 2013 5:51:32 AM RE: Meeting Notes 5 Document 003385-522 is an email chain containing two emails between Jon Butcher, Amy King, Cindy Lin, Ann Lincoln, and Michael Paul discussing potential content for inclusion in the July 2, 2013 final TMDL. The first email was withheld in part. The remainder of the email chain was released in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-524 April 17, 2013 7:59:37 AM RE: reformatted O/E, MMI, and CSCI scores (with file) 5 Document 003385-524 is an email chain that was released in full. The email chain contains one attachment, a selection of data for possible inclusion in the July 2, 2013 final TMDL, that was withheld in full. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 79 of 144 Page ID #:291 Ex. A, page 68 The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-530 May 14, 2013 2:09:03 PM RE: runoff estimates for Malibu Creek 5 Document 003385-530 is an email chain containing three emails between Cindy Lin, Jon Butcher, and Amy King discussing the relevance of an outside analysis to the July 2, 2013 final TMDL. The first and second emails were withheld in part. The remainder of the email chain was released in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 80 of 144 Page ID #:292 Ex. A, page 69 EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-534 April 24, 2013 9:12:12 PM RE: tapia gross estimates 5 Document 003385-534 is an email chain containing two emails between Amy King and Cindy Lin discussing calculations for possible inclusion in the July 2, 2013 final TMDL. The email chain was withheld in part and includes one attachment, a spreadsheet containing potential calculations, that was withheld in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 81 of 144 Page ID #:293 Ex. A, page 70 furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-535 May 16, 2013 5:20:00 PM Sections to insert 5 Document 003385-535 is an email from Cindy Lin to Amy King that was released in full and contains one attachment that was withheld in full. The attachment consists of a list of unfinished, draft language for various sections of the July 2, 2013 final TMDL. The withheld information is protected under Exemption 5’s deliberative process privilege because it is an internal, predecisional draft version of various sections of the TMDL. It consists of EPA staff and contractor analyses and opinions related to the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 82 of 144 Page ID #:294 Ex. A, page 71 development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-536 May 15, 2013 5:50:31 AM Ch.9, now appendix ?? 5 Document 003385-536 is an email from Ann Lincoln to Amy King, Jon Butcher, Michael Paul, and Cindy Lin discussing draft sections of the TMDL and includes an attachment that is a draft chapter of the July 2, 2013 final TMDL. The attachment was withheld in full and the email was withheld in part. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-537 April 26, 2013 10:31:00 AM corr spreadsheet 5 Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 83 of 144 Page ID #:295 Ex. A, page 72 Document 003385-537 is an email from Cindy Lin to Amy kind that was released in full and contains two attachments that were withheld in full. Both attachments are compilations of data for possible inclusion in the July 2, 2013 final TMDL. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-538 April 16, 2013 3:13:46 PM CSCI methods 5 Document 003385-538 is an email from Ann Lincoln to Cindy Lin, Jon Butcher, Amy King, and Michael Paul that was released in full and contains one attachment that was withheld in full. The attachment is a compilation of draft sections of the July 2, 2013 final TMDL The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 84 of 144 Page ID #:296 Ex. A, page 73 of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-540 May 06, 2013 8:58:00 AM Edits to Ch 9 Causal Assmt for disc this am 5 Document 003385-540 is an email from Cindy Lin to Amy King, Jon Butcher, Ann Lincoln, and Michael Paul that was released in full and contains one attachment that was withheld in full. The attachment is a full draft of the July 2, 2013 final TMDL with EPA and contractor staff edits and comments. The withheld information is protected under Exemption 5’s deliberative process privilege because it is an internal, predecisional draft version of a section of the TMDL. It reflects EPA staff and contractor analyses and opinions related to the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 85 of 144 Page ID #:297 Ex. A, page 74 opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-541 April 26, 2013 10:38:00 AM FW: corr spreadsheet 5 Document 003385-541 is an email chain between Cindy Lin and Amy King that was released in full and contains two attachments. One attachment was released in full. The other attachment, “Malibu Load Calculations Clin corrections.xlsx,” is a compilation of data for possible inclusion in the July 2, 2013 final TMDL and was withheld in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 86 of 144 Page ID #:298 Ex. A, page 75 the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-542 May 23, 2013 3:32:00 PM example of Section 7 5 Document 003385-542 is an email from Cindy Lin to Amy King that was released in full and contains one attachment that was withheld in full. The attachment is a draft of multiple sections of the July 2, 2013 final TMDL and includes staff comments and edits. The withheld attachment is protected under Exemption 5’s deliberative process privilege because it is an internal, predecisional draft version of sections of the TMDL. It reflects EPA staff and contractor analyses and opinions related to the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 87 of 144 Page ID #:299 Ex. A, page 76 available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-543 June 05, 2013 8:05:14 AM Linkage analysis 5 Document 003385-543 is an email from Jon Butcher to Cindy Lin, Ann Lincoln, Amy King, and Michael Paul that was released in full and contains one attachment that was withheld in full. The attachment is a draft section of the July 2, 2013 final TMDL that includes staff comments and edits. The withheld information is protected under Exemption 5’s deliberative process privilege because it is an internal, predecisional draft version of a section of the TMDL. It reflects EPA staff and contractor analyses and opinions related to the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-544 June 02, 2013 5:50:33 PM Malibu PHab 5 Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 88 of 144 Page ID #:300 Ex. A, page 77 Document 003385-544 is an email chain of eight emails between Jon Butcher, Amy King, Ann Lincoln, Cindy Lin, and Michael Paul that was released in full and contains one attachment that was withheld in full. The attachment is a draft section of the July 2, 2013 final TMDL. The withheld information is protected under Exemption 5’s deliberative process privilege because it is an internal, predecisional draft version of a section of the TMDL. It reflects EPA staff and contractor analyses and opinions related to the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-548 May 23, 2013 4:22:13 PM RE: Dates 6 The withholdings in Document 003385-548 are made pursuant to Exemption 6 and are not challenged by Plaintiff. 003385-549 June 03, 2013 10:56:00 AM RE: example of Section 7 5 Document 003385-549 is an email chain of three emails between Cindy Lin and Amy King that was released in full and contains one attachment that was withheld in full. The attachment is a draft the July 2, 2013 final TMDL that includes staff edits and comments throughout. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 89 of 144 Page ID #:301 Ex. A, page 78 The withheld information is protected under Exemption 5’s deliberative process privilege because it is an internal, predecisional draft version of a section of the TMDL. It reflects EPA staff and contractor analyses and opinions related to the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-551 May 22, 2013 12:10:11 PM RE: REQUEST FOR FLOW DATA FOR F 130-R, MAIBU CREEK 5 Document 003385-551 is an email chain of eight emails between Amy King, Cindy Lin, Jon Butcher, and Erica Hanley that was released in full and contains one attachment that was withheld in full. The attachment contains a series of draft figures for possible inclusion in the July 2, 2013 final TMDL. The withheld information is protected under Exemption 5’s deliberative process privilege because it is an internal, predecisional draft version of figures for possible inclusion in the TMDL. It reflects EPA staff and contractor analyses and opinions related to the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 90 of 144 Page ID #:302 Ex. A, page 79 did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-554 May 27, 2013 5:14:46 PM RE: SI appendix (with doc) 5 Document 003385-554 is an email chain of two emails between Ann Lincoln, Michael Paul, Jon Butcher, Amy King, and Cindy Lin that was released in full and contains one attachment that was withheld in full. The attachment is a draft section of the July 2, 2013 final TMDL that includes staff edits and comments. The withheld information is protected under Exemption 5’s deliberative process privilege because it is an internal, predecisional draft version of a section of the TMDL. It reflects EPA staff and contractor analyses and opinions related to the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 91 of 144 Page ID #:303 Ex. A, page 80 among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-555 June 07, 2013 1:34:32 PM SI appendix and new RTC drafts 5 Document 003385-555 is an email from Ann Lincoln to Jon Butcher, Michael Paul, Amy King, and Cindy Lin that was released in full and contains two attachments that were withheld in full. The first attachment, “SIAppendix_20130527_mjp- jbbEdits_v2_reorgd.docm” is a draft section of the July 2, 2013 final TMDL that contains staff edits and comments. The second attachment, “MoreRTC_ARL_20130603.docx” contains draft responses to three public comments. The withheld information in the first attachment is protected under Exemption 5’s deliberative process privilege because it is an internal, predecisional draft version of a section of the TMDL. It reflects EPA staff and contractor analyses and opinions related to the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 92 of 144 Page ID #:304 Ex. A, page 81 content to include in the assessment that may not ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information in the second attachment is protected under Exemption 5's deliberative process privilege because it contains internal agency discussions reflecting staff analyses, advice, and recommendations relating to EPA’s then-ongoing review of the public comment and evaluation of responses to public comments on the TMDL. These draft responses were used as part of the process of deciding the content of EPA’s responses to various public comments. The withheld information is internal to EPA. The withheld information does not represent an official Agency decision or policy and instead reflects analysis and opinions on the content of the incoming public comments and the content of draft EPA responses. The withheld information is pre-decisional because it was created for the purpose of assisting EPA staff and contractors in reaching a decision on how to respond to the public comments and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it represents staff opinions and judgments that were under consideration by the EPA and do not reflect final Agency decisions about a final response to comments. Release of this information would have a chilling effect on the Agency’s ability to have open and frank discussions among its staff and with contractors concerning the Agency's policy priorities with respect to public comment periods. Release would also interfere with the ability of staff and contractors to brief senior officials with a variety of options or ideas for processing public comments that may not ultimately be selected for Agency action. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately the position of the EPA or the U.S. Government. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-556 May 27, 2013 8:17:27 AM SI appendix 5 Document 003385-556 is an email from Ann Lincoln to Cindy Lin and Amy King that was released in full and contains one attachment that was withheld in full. The attachment is a draft section of the July 2, 2013 final TMDL that contains staff edits and comments. The withheld information is protected under Exemption 5’s deliberative process privilege because it is an internal, predecisional draft version of a section of the TMDL. It reflects EPA staff and contractor analyses and opinions related to the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 93 of 144 Page ID #:305 Ex. A, page 82 the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-557 June 10, 2013 11:53:26 AM Clean SI Appendix 5 Document 003385-557 is an email from Amy King to Cindy Lin, Ann Lincoln, Jon Butcher, and Michael Paul that was released in full and contains one attachment that was withheld in full. The attachment is a draft section of the July 2, 2013 final TMDL that contains staff edits and comments. The withheld information is protected under Exemption 5’s deliberative process privilege because it is an internal, predecisional draft version of a section of the TMDL. It reflects EPA staff and contractor analyses and opinions related to the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 94 of 144 Page ID #:306 Ex. A, page 83 would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-561 June 12, 2013 4:43:00 AM RE: Clean SI Appendix 5 Document 003385-561 is an email chain containing four emails between Cindy Lin, Amy King, Ann Lincoln, Jon Butcher, and Michael Paul discussing proposed changes to different sections of the July 2, 2013 final TMDL. The first email in the chain was withheld in part and the remainder of the chain was released in full. The email chain contains three attachments that were withheld in full. All three attachments are drafts or draft sections of the TMDL that contain staff comments and edits. The withheld information in the email and the attachments are protected under Exemption 5’s deliberative process privilege because they are internal, predecisional discussions or draft versions of sections of the TMDL. They reflect EPA staff and contractor analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 95 of 144 Page ID #:307 Ex. A, page 84 ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-566 June 14, 2013 10:55:05 AM RE: loadings numbers 5 Document 003385-566 is an email chain of four emails between Amy King and Cindy Lin discussing the presentation of data and nutrient loadings in the July 2, 2013 final TMDL that was withheld in part. The email includes three attachments that were withheld in full. The attachments are a draft graph and two draft spreadsheets of flow and water quality data containing comments. The withheld information is protected under Exemption 5’s deliberative process privilege because it is an internal, predecisional draft version of a section of the TMDL. It reflects EPA staff and contractor analyses and opinions related to the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 96 of 144 Page ID #:308 Ex. A, page 85 available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-569 June 12, 2013 12:39:18 PM RE: Malibu 5 Document 003385-569 is an email chain containing three emails between Amy King, Cindy Lin, Jon Butcher, Michael Paul, and Ann Lincoln discussing the interpretation of data in the July 2, 2013 final TMDL. The email chain includes two attachments, draft diagrams, that were withheld in full. These two diagrams also appear in the body of the email and were redacted. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-571 June 14, 2013 4:42:12 AM RE: Sediment transport capacity 5 Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 97 of 144 Page ID #:309 Ex. A, page 86 Document 003385- 571 is an email chain containing two emails between Cindy Lin, Amy King, and Jon Butcher discussing content for possible inclusion in the July 2, 2013 final TMDL. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-573 June 14, 2013 8:06:56 AM Ventura and nutrient WLAs 5 Document 003385-573 is an email chain containing two emails between Cindy Lin, Amy King, and Jon Butcher discussing data interpretation and content for possible inclusion in the July 2, 2013 final TMDL. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 98 of 144 Page ID #:310 Ex. A, page 87 decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-577 June 20, 2013 5:14:01 AM Malibu SI 5 Document 003385-577 is an email from Jon Butcher to Amy King, Cindy Lin, Ann Lincoln, and Michael Paul discussing data interpretation and content for possible inclusion in the July 2, 2013 final TMDL. The email contains three attachments that were withheld in full. Two of the attachments were draft diagrams that also appear in the email and were redacted. The third attachment is a spreadsheet that includes three such draft diagrams. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 99 of 144 Page ID #:311 Ex. A, page 88 would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-579 June 21, 2013 2:36:00 AM Non LVMWD RTC Malibu 5 Document 003385-579 is an email from Cindy Lin to Amy King that was released in full and contains two attachments that were withheld in full. The two attachments are compilations of draft responses to public comments to the TMDL. The withheld information is protected under Exemption 5's deliberative process privilege because it contains internal agency discussions reflecting staff analyses, advice, and recommendations relating to EPA’s then-ongoing review of the public comment and evaluation of responses to public comments on the TMDL. The two attachments were used as part of the process of deciding what content to include in EPA’s responses to various public comments. The withheld information is internal to EPA. The withheld information does not represent an official Agency decision or policy and instead reflects analysis and opinions on the content of the incoming public comments and the content of draft EPA responses. The withheld information is pre-decisional because it was created for the purpose of assisting EPA staff and contractors in reaching a decision on how to respond to the public comments and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it represents staff opinions and judgments that were under consideration by the EPA and do not reflect final Agency decisions about a final response to comments. Release of this information would have a chilling effect on the Agency’s ability to have open and frank discussions among its staff and with contractors concerning the Agency's policy priorities with respect to public comment periods. Release would also interfere with the ability of staff and contractors to brief senior officials with a variety of options or ideas for processing public comments that may not ultimately be selected for Agency action. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately the position of the EPA or the U.S. Government. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 100 of 144 Page ID #:312 Ex. A, page 89 The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-580 June 17, 2013 10:30:01 AM RE: HTB Comment 5 Document 003385-580 is fully contained within Document 003385-582. The withholdings in this document are explained in the entry for Document 003385-582. 003385-582 June 17, 2013 10:00:00 AM RE: HTB Comment 5 Document 003385-580 is an email chain containing three emails between Jon Butcher, Cindy Lin, and Amy King discussing EPA’s response to one public comment to the TMDL. The second and third email were withheld in part. The remainder of the email chain was released in full. The withheld information is protected under Exemption 5's deliberative process privilege because it contains internal agency discussions reflecting staff analyses, advice, and recommendations relating to EPA’s then-ongoing review of the public comment and evaluation of responses to public comments on the TMDL. This discussion was part of the process of deciding what content to include in EPA’s response to the public comment. The withheld information is internal to EPA. The withheld information does not represent an official Agency decision or policy and instead reflects analysis and opinions on the content of the incoming public comments and the content of draft EPA responses. The withheld information is pre-decisional because it was created for the purpose of assisting EPA staff and contractors in reaching a decision on how to respond to the public comments and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it represents staff opinions and judgments that were under consideration by the EPA and do not reflect final Agency decisions about a final response to comments. Release of this information would have a chilling effect on the Agency’s ability to have open and frank discussions among its staff and with contractors concerning the Agency's policy priorities with respect to public comment periods. Release would also interfere with the ability of staff and contractors to brief senior officials with a variety of options or ideas for processing public comments that may not ultimately be selected for Agency action. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately the position of the EPA or the U.S. Government. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 101 of 144 Page ID #:313 Ex. A, page 90 described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-584 June 17, 2013 10:41:01 AM RE: HTB Comment 5 Document 003385-584 is an email chain containing two emails between Jon Butcher, Cindy Lin, and Amy King discussing EPA’s response to one public comment to the TMDL. The first email was withheld in part. The second email is fully contained in Document 003385-580 and is explained in that entry. The withheld information is protected under Exemption 5's deliberative process privilege because it contains internal agency discussions reflecting staff analyses, advice, and recommendations relating to EPA’s then-ongoing review of the public comment and evaluation of the public comment process concerning the Malibu Creek and Lagoon TMDL. This discussion was part of the process of deciding what content to include in EPA’s response to the public comment. The withheld information is internal to EPA. The withheld information does not represent an official Agency decision or policy and instead reflects analysis and opinions on proposals still in development at the EPA. The withheld information is pre-decisional because it was created for the purpose of assisting EPA staff and contractors in reaching a decision on a response to public comments to the draft and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it represents staff opinions and judgments that were under consideration by the EPA and do not reflect final Agency decisions about a final response to comments. Release of this information would have a chilling effect on the Agency’s ability to have open and frank discussions among its staff and with contractors concerning the Agency's policy priorities with respect to public comment periods. Release would also interfere with the ability of staff and contractors to brief senior officials with a variety of options or ideas for processing public comments that may not ultimately be selected for Agency action. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately the position of the EPA or the U.S. Government. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-586 June 20, 2013 9:47:07 AM RE: Malibu SI 5 Document 003385-586 is an email chain containing five emails between Cindy Lin, Amy King, Jon Butcher, Ann Lincoln, and Michael Paul discussing data interpretation and content for possible inclusion in the July 2, 2013 final TMDL. The email chain was withheld in part and contains five attachments that were withheld in full. Four of the attachments are draft diagrams that also appear in the body of the email chain and were redacted. The fifth attachment is a spreadsheet that contains five draft diagrams. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 102 of 144 Page ID #:314 Ex. A, page 91 The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-590 June 20, 2013 9:17:00 AM RE: Malibu SI 5 All withholdings in this document are contained within Document 003385-586 and explained in that entry. 003385-593 June 20, 2013 9:09:04 AM RE: Malibu SI 5 All withholdings in this document are contained within Document 003385-586 and explained in that entry. 003385-596 June 20, 2013 9:03:00 AM RE: Malibu SI 5 Document 003385-596 is an email chain containing three emails between Cindy Lin, Amy King, Jon Butcher, Ann Lincoln, and Michael Paul discussing data interpretation and content for possible inclusion in the July 2, 2013 final TMDL. The first two emails were withheld in part. The third email is fully contained within Document 003385-586 and is explained in that entry. The email chain contains two attachments, draft diagrams, that were withheld in full. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 103 of 144 Page ID #:315 Ex. A, page 92 The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-599 June 20, 2013 9:02:00 AM RE: Malibu SI 5 All withholdings in this document are contained within Document 003385-586 and explained in that entry. 003385-601 June 20, 2013 5:26:53 AM RE: Malibu SI 5 All withholdings in this document are contained within Document 003385-586 and explained in that entry. 003385-604 June 20, 2013 5:22:55 AM RE: Malibu SI 5 All withholdings in this document are contained within Document 003385-596 and explained in that entry. 003385-606 June 20, 2013 9:54:00 AM RE: Malibu SI 5 Document 003385-606 is an email chain containing five emails between Cindy Lin, Amy King, Jon Butcher, Ann Lincoln, and Michael Paul discussing data interpretation and content for possible inclusion in the July 2, 2013 final TMDL. The first email was withheld in part. The remainder of the email chain is fully contained within Document 003385-586 and is explained in that entry. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 104 of 144 Page ID #:316 Ex. A, page 93 The email chain contains four attachments, draft diagrams, that were withheld in full. These draft diagrams also appear in the body of the email and were redacted. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-618 June 19, 2013 10:00:51 AM RE: Pls Respond ASAP: 2010 LVMWD/Tapia permit 5 Document 003385-618 is an email chain containing seven emails between Amy King, Cindy Lin, Jon Butcher, and Ann Lincoln discussing the presentation of data in one chapter of the July 2, 2013 final TMDL. The second and third emails were withheld in part. The remainder of the email chain was released in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 105 of 144 Page ID #:317 Ex. A, page 94 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-621 June 19, 2013 8:54:54 AM RE: Pls Respond ASAP: 2010 LVMWD/Tapia permit 5 The single withholding in Document 003385-621 is fully contained within 003385-618 and is explained in that entry. 003385-623 June 19, 2013 11:17:52 AM RE: Pls Respond ASAP: 2010 LVMWD/Tapia permit 5 Document 003385-623 is an email chain containing ten emails between Ann Lincoln, Jon Butcher, Cindy Lin, and Amy King exchanging opinions on the wording and content of various draft sections of the July 2, 2013 final TMDL. The third email also contains draft text of the TMDL. The first six emails were withheld in part. The remainder of the chain was released in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. A portion of the information withheld also contains draft text from the TMDL. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 106 of 144 Page ID #:318 Ex. A, page 95 decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-629 June 26, 2013 10:39:19 PM Malibu Appendices 5 Document 003385-629 is an email from Amy King to Cindy Lin and Jon Butcher. The withholdings in the email are fully contained in 003385-672 and are explained in that entry. The email contains one attachment that was withheld in full. The attachment is a draft of the appendices to the July 2, 2013 final TMDL and includes staff comments and edits. The withheld attachment is protected under Exemption 5’s deliberative process privilege because it is an internal, predecisional draft version of sections of the TMDL. It reflects EPA staff and contractor analyses and opinions related to the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 107 of 144 Page ID #:319 Ex. A, page 96 would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-630 June 24, 2013 9:57:29 PM Malibu Recommendations 5 Document 003385-630 is an email from Amy King to Cindy Lin discussing a draft section of the July 2, 2013 TMDL. The email contains one attachment, the draft section of the July 2, 2013 TMDL. The withheld information is protected under Exemption 5’s deliberative process privilege because they are an internal, predecisional draft version of a section of the TMDL and an accompanying discussion. It reflects EPA staff and contractor analyses and opinions related to the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 108 of 144 Page ID #:320 Ex. A, page 97 The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-631 June 28, 2013 11:06:32 AM Malibu References 5 Document 003385-631 is an email from Amy King to Cindy Lin, Jon Butcher, and Ann Lincoln discussing Ms. King’s comments on the draft references section of the July 2, 2013 final TMDL. The email was withheld in part. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 109 of 144 Page ID #:321 Ex. A, page 98 003385-635 June 28, 2013 12:42:00 PM RE: Malibu - substantive comments 5 Document 003385-635 is an email chain containing twenty emails between Cindy Lin, Ann Lincoln, Amy King, and Jon Butcher discussing comments and edits made by EPA and contractor staff to various draft sections of the July 2, 2013 final TMDL. The email chain was withheld in part. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-641 June 28, 2013 12:38:50 PM RE: Malibu - substantive comments 5 All withholdings in this document are fully contained in 003385-635 and explained in that entry. 003385-647 June 28, 2013 12:36:51 PM RE: Malibu - substantive comments 5 Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 110 of 144 Page ID #:322 Ex. A, page 99 All withholdings in this document are fully contained in 003385-635 and explained in that entry. 003385-653 June 28, 2013 12:36:00 PM RE: Malibu - substantive comments 5 Document 003385-653 is an email chain between Cindy Lin, Jon Butcher, Amy King, and Ann Lincoln. All withholdings in this chain except for the first email are fully contained in 003385-635 and explained in that entry. The first email contains some of Cindy Lin’s comments on a draft section of the July 2, 2013 final TMDL and was withheld in part. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-658 June 28, 2013 12:32:17 PM RE: Malibu - substantive comments 5 All withholdings in this document are fully contained in 003385-635 and explained in that entry. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 111 of 144 Page ID #:323 Ex. A, page 100 003385-663 June 28, 2013 10:32:53 AM RE: Malibu - substantive comments 5 Document 003385-663 is an email chain that contains one attachment. The withholdings in the email chain are fully contained in 003385-635 and explained in that entry. The attachment, a draft section of the July 2, 2013 final TMDL, was withheld in full The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-666 June 28, 2013 12:43:48 PM RE: Malibu - substantive comments 5 Document 003385-666 is an email chain between Jon Butcher, Ann Lincoln, Cindy Lin, and Amy King that was withheld in part. All withholdings in the email chain are fully contained in Document 003385-635 and are explained in that entry. The email chain includes four attachments. Two of the attachments are diagrams that were released in the email chain. The remaining two Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 112 of 144 Page ID #:324 Ex. A, page 101 attachments, “ConceptualModel_updates_06-28-13.docx” and “Conceptual Model 06-28-13.vsd” are draft diagrams for possible inclusion in the July 2, 2013 final TMDL. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-672 June 28, 2013 11:43:50 AM RE: Malibu Appendices 5 Document 003385-672 is an email chain containing ten emails between Jon Butcher, Amy King, and Cindy Lin discussing edits and changes to the draft appendices to the July 2, 2013 final TMDL. The sixth through tenth emails were withheld in part. The remainder of the email chain was released in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 113 of 144 Page ID #:325 Ex. A, page 102 of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-678 June 26, 2013 2:03:00 PM RE: Malibu Missing References 5 Document 003385-678 is an email chain containing seven emails between Cindy Lin, Jon Butcher, Ann Lincoln, Amy King, and Michael Paul. The second and third emails were withheld in part and discuss a possible change to a draft section of the July 2, 2013 final TMDL. The remainder of the email chain was released in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 114 of 144 Page ID #:326 Ex. A, page 103 opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-686 June 25, 2013 11:50:09 PM RE: Malibu TMDL Report 5 Document 003385-686 is an email chain containing two emails between Amy King and Cindy Lin discussing some of Amy King’s comments on the draft of the July 2, 2013 final TMDL. The second email was withheld in part. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA and contractor staff analyses and opinions related to the content of the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 115 of 144 Page ID #:327 Ex. A, page 104 The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-688 June 23, 2013 11:11:00 AM RE: Non LVMWD RTC Malibu 5 Document 003385-688 is an email chain containing five emails between Cindy Lin and Amy King discussing EPA’s response to public comments. The second email was withheld in part. The remainder of the email chain was released in full. The withheld information is protected under Exemption 5's deliberative process privilege because it contains internal agency discussions reflecting staff analyses, advice, and recommendations relating to EPA’s then-ongoing review of the public comment and evaluation of the public comment process concerning the Malibu Creek and Lagoon TMDL. The withheld portion in this email chain is a contractor’s impression of various public comments and was part of the process of deciding how to approach a response to the comments, including nature and timing. The withheld information is internal to EPA. The withheld information does not represent an official Agency decision or policy and instead reflects analysis and opinions on proposals still in development at the EPA. The withheld information is pre-decisional because it was created for the purpose of assisting EPA staff and contractors in reaching a decision on a response to public comments to the draft and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it represents staff opinions and judgments that were under consideration by the EPA and do not reflect final Agency decisions about a final response to comments. Release of this information would have a chilling effect on the Agency’s ability to have open and frank discussions among its staff and with contractors concerning the Agency's policy priorities with respect to public comment periods. Release would also interfere with the ability of staff and contractors to brief senior officials with a variety of options or ideas for processing public comments that may not ultimately be selected for Agency action. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately the position of the EPA or the U.S. Government. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 116 of 144 Page ID #:328 Ex. A, page 105 described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-698 June 26, 2013 3:10:00 PM RE: TMDL report 5 Document 003385-698 is an email chain between Cindy Lin and Amy King that was released in full. The email chain contains one attachment, a list of draft responses to public comments on the TMDL, that was withheld in full. The withheld information is protected under Exemption 5's deliberative process privilege because it contains internal agency discussions reflecting staff analyses, advice, and recommendations relating to EPA’s then-ongoing review of the public comment and evaluation of the public comment process concerning the Malibu Creek and Lagoon TMDL. The attachment was used as part of the process of deciding what content to include in EPA’s responses to various public comments. The withheld information is internal to EPA. The withheld information does not represent an official Agency decision or policy and instead reflects analysis and opinions on proposals still in development at the EPA. The withheld information is pre-decisional because it was created for the purpose of assisting EPA staff and contractors in reaching a decision on a response to public comments to the draft and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it represents staff opinions and judgments that were under consideration by the EPA and do not reflect final Agency decisions about a final response to comments. Release of this information would have a chilling effect on the Agency’s ability to have open and frank discussions among its staff and with contractors concerning the Agency's policy priorities with respect to public comment periods. Release would also interfere with the ability of staff and contractors to brief senior officials with a variety of options or ideas for processing public comments that may not ultimately be selected for Agency action. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately the position of the EPA or the U.S. Government. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-699 June 26, 2013 4:24:25 PM RE: TMDL report 5 Document 003385-699 is an email chain containing five emails between Cindy Lin and Amy King discussing EPA’s response to public comments on the TMDL. The first email was withheld in part and the remainder of the email chain was released in full. The email chain contains one attachment, the list of draft responses to public comments that was attached to Document 003385-698, but with additional staff comments. The attachment was withheld in full. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 117 of 144 Page ID #:329 Ex. A, page 106 The withheld information is protected under Exemption 5's deliberative process privilege because it contains internal agency discussions reflecting staff analyses, advice, and recommendations relating to EPA’s then-ongoing review of the public comment and evaluation of the public comment process concerning the Malibu Creek and Lagoon TMDL. The attachment was used as part of the process of deciding what content to include in EPA’s responses to various public comments. The withheld information is internal to EPA. The withheld information does not represent an official Agency decision or policy and instead reflects analysis and opinions on proposals still in development at the EPA. The withheld information is pre-decisional because it was created for the purpose of assisting EPA staff and contractors in reaching a decision on a response to public comments to the draft and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it represents staff opinions and judgments that were under consideration by the EPA and do not reflect final Agency decisions about a final response to comments. Release of this information would have a chilling effect on the Agency’s ability to have open and frank discussions among its staff and with contractors concerning the Agency's policy priorities with respect to public comment periods. Release would also interfere with the ability of staff and contractors to brief senior officials with a variety of options or ideas for processing public comments that may not ultimately be selected for Agency action. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately the position of the EPA or the U.S. Government. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-701 June 26, 2013 4:32:00 PM RE: TMDL title page 5 The withholding in Document 003385-701 is identical to the withholding in Document 003385-699 and it explained in that entry. 003385-703 June 26, 2013 12:22:00 AM Revised general comments 5 Document 003385-703 is an email from Cindy Lin to Amy King that was released in full. The email contains one attachment, a list of draft responses to public comments to the TMDL, that was withheld in full. The withheld information is protected under Exemption 5's deliberative process privilege because it contains internal agency discussions reflecting staff analyses, advice, and recommendations relating to EPA’s then-ongoing review of the public comment and evaluation of the public comment process concerning the Malibu Creek and Lagoon TMDL. The attachment was used as part of the process of deciding what content to include in EPA’s responses to various public comments. The withheld information is internal to EPA. The withheld information does not represent an official Agency decision or policy and instead reflects analysis and opinions on proposals still in development at the EPA. The withheld information is pre-decisional because it was created for the Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 118 of 144 Page ID #:330 Ex. A, page 107 purpose of assisting EPA staff and contractors in reaching a decision on a response to public comments to the draft and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it represents staff opinions and judgments that were under consideration by the EPA and do not reflect final Agency decisions about a final response to comments. Release of this information would have a chilling effect on the Agency’s ability to have open and frank discussions among its staff and with contractors concerning the Agency's policy priorities with respect to public comment periods. Release would also interfere with the ability of staff and contractors to brief senior officials with a variety of options or ideas for processing public comments that may not ultimately be selected for Agency action. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately the position of the EPA or the U.S. Government. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-704 June 27, 2013 5:10:00 AM Revised RTC 5 Document 003385-704 is an email from Cindy Lin to Amy King that was released in full. The email contains one attachment, a list of draft responses to public comments to the TMDL, that was withheld in full. The withheld information is protected under Exemption 5's deliberative process privilege because it contains internal agency discussions reflecting staff analyses, advice, and recommendations relating to EPA’s then-ongoing review of the public comment and evaluation of the public comment process concerning the Malibu Creek and Lagoon TMDL. The attachment was used as part of the process of deciding what content to include in EPA’s responses to various public comments. The withheld information is internal to EPA. The withheld information does not represent an official Agency decision or policy and instead reflects analysis and opinions on proposals still in development at the EPA. The withheld information is pre-decisional because it was created for the purpose of assisting EPA staff and contractors in reaching a decision on a response to public comments to the draft and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it represents staff opinions and judgments that were under consideration by the EPA and do not reflect final Agency decisions about a final response to comments. Release of this information would have a chilling effect on the Agency’s ability to have open and frank discussions among its staff and with contractors concerning the Agency's policy priorities with respect to public comment periods. Release would also interfere with the ability of staff and contractors to brief senior officials with a variety of options or ideas for processing public comments that may not ultimately be selected for Agency action. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately the position of the EPA or the U.S. Government. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 119 of 144 Page ID #:331 Ex. A, page 108 The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-705 June 27, 2013 1:46:26 PM RTC back to you 5 Document 003385-705 is an email from Amy King to Cindy Lin discussing a specific list of comments to be addressed by Cindy Lin and the nature of what needed to be addressed. The email was withheld in part and contains one attachment, a list of draft responses to the public comments, that was withheld in full. The withheld information is protected under Exemption 5's deliberative process privilege because it contains internal agency discussions reflecting staff analyses, advice, and recommendations relating to EPA’s then-ongoing review of the public comment and evaluation of the public comment process concerning the Malibu Creek and Lagoon TMDL. The withheld information was used as part of the process of deciding what content to include in EPA’s responses to various public comments. The withheld information is internal to EPA. The withheld information does not represent an official Agency decision or policy and instead reflects analysis and opinions on proposals still in development at the EPA. The withheld information is pre-decisional because it was created for the purpose of assisting EPA staff and contractors in reaching a decision on a response to public comments to the draft and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it represents staff opinions and judgments that were under consideration by the EPA and do not reflect final Agency decisions about a final response to comments. Release of this information would have a chilling effect on the Agency’s ability to have open and frank discussions among its staff and with contractors concerning the Agency's policy priorities with respect to public comment periods. Release would also interfere with the ability of staff and contractors to brief senior officials with a variety of options or ideas for processing public comments that may not ultimately be selected for Agency action. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately the position of the EPA or the U.S. Government. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. This includes the selection of individual public comments to discuss in this document. The selection of those facts Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 120 of 144 Page ID #:332 Ex. A, page 109 was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-706 June 25, 2013 4:22:00 PM RTC 5 Document 003385-706 is an email from Cindy Lin to Amy King discussing items that needed to be addressed regarding EPA’s draft responses to public comments and was withheld in part. The email contains one attachment, a list of draft responses to the public comments, that was withheld in full. The withheld information is protected under Exemption 5's deliberative process privilege because it contains internal agency discussions reflecting staff analyses, advice, and recommendations relating to EPA’s then-ongoing review of the public comment and evaluation of the public comment process concerning the Malibu Creek and Lagoon TMDL, and internal discussions about work planning and division of labor. The attachment was used as part of the process of deciding what content to include in EPA’s responses to various public comments. The withheld portion of the email discussion was part of the process of deciding how to allocate resources to efficiently respond to public comments. The withheld information is internal to EPA. The withheld information does not represent an official Agency decision or policy and instead reflects analysis and opinions on proposals still in development at the EPA. The withheld information is pre-decisional because it was created for the purpose of assisting EPA staff and contractors in reaching a decision on a response to public comments to the draft and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it represents staff opinions and judgments that were under consideration by the EPA and do not reflect final Agency decisions about a final response to comments. Release of this information would have a chilling effect on the Agency’s ability to have open and frank discussions among its staff and with contractors concerning the Agency's policy priorities with respect to public comment periods. Release would also interfere with the ability of staff and contractors to brief senior officials with a variety of options or ideas for processing public comments that may not ultimately be selected for Agency action. Furthermore, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately the position of the EPA or the U.S. Government. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-707 July 01, 2013 6:20:00 PM Appendix 5 Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 121 of 144 Page ID #:333 Ex. A, page 110 Document 003385-707 is an email from Cindy Lin to Amy King discussing a draft version of the appendices to the TMDL. was withheld in part. The email contains one attachment, a draft of the appendices to the July 2, 2013 final TMDL, that was withheld in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it is an internal, predecisional draft version of the appendices to the TMDL and an accompanying discussion about the content of the appendices. It reflects EPA staff and contractor analyses and opinions related to the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-710 June 30, 2013 10:26:00 PM here it is 5 Document 003385-710 is an email from Cindy Lin to Amy King discussing possible changes to a draft version of the TMDL and was withheld in part. The email contains one attachment, a draft version of the July 2, 2013 final TMDL that contains staff comments and edits, that was withheld in full. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 122 of 144 Page ID #:334 Ex. A, page 111 The withheld information is protected under Exemption 5’s deliberative process privilege because it is an internal, predecisional draft version of the TMDL and an accompanying discussion about possible changes to the draft TMDL. It reflects EPA staff and contractor analyses and opinions related to the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-711 July 01, 2013 4:54:51 PM RE: appendices 6 The withholding on Document 003385-711 was made pursuant to Exemption 6 and is not challenged by Plaintiff. 003385-712 July 01, 2013 2:45:09 PM RE: Got a small extra bit of time 5 Document 003385-712 is an email chain between Amy King and Cindy Lin that was released in full. The email chain contains one attachment, a draft version of the July 2, 2013 final TMDL, that was withheld in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it is an internal, predecisional draft version of the TMDL. It reflects EPA staff and contractor analyses and opinions related to the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 123 of 144 Page ID #:335 Ex. A, page 112 of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-715 July 01, 2013 4:54:55 PM RE: Section 9 and SI appendix 5 Document 003385-715 is an email chain containing six emails between Amy King and Cindy Lin discussing a draft version of the appendices to the TMDL. The sixth email was withheld in part and the rest of the email chain was released in full. The email chain contains one attachment, a draft version of the appendices to the July 2, 2013 final TMDL, that was withheld in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it is an internal, predecisional draft version of the appendices to the TMDL. It reflects EPA staff and contractor analyses and opinions related to the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 124 of 144 Page ID #:336 Ex. A, page 113 development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-717 July 01, 2013 6:21:00 PM RE: septics 5 Document 003385-717 is an email chain containing three emails between Cindy Lin, Ann Lincoln, and Amy King discussing staff comments to the draft TMDL section on septics. The first and third emails were withheld in part. The remainder of the email chain was released in full. The email chain contains one attachment, a draft of the appendices to the July 2, 2013 final TMDL that contains staff edits and comments, that was withheld in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it is an internal, predecisional draft version of the appendices to the TMDL and an accompanying discussion concerning its content. It reflects EPA staff and contractor analyses and opinions related to the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 125 of 144 Page ID #:337 Ex. A, page 114 Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-718 July 01, 2013 7:25:00 PM Appendix ver 2 5 Document 003385-718 is an email from Cindy Lin to Amy King discussing staff comments to the draft TMDL appendices and was withheld in part. The email contains one attachment, a draft of the appendices to the July 2, 2013 final TMDL, that was withheld in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it is an internal, predecisional draft version of the appendices to the TMDL and an accompanying discussion concerning its content. It reflects EPA staff and contractor analyses and opinions related to the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 126 of 144 Page ID #:338 Ex. A, page 115 development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-720 July 01, 2013 10:14:00 PM RE: Appendix 5 and 6 Document 003385-720 is an email chain between Cindy Lin and Amy King, the withholdings in which are fully contained in Document 003385-728 and are explained in that entry. The email chain contains one attachment, a draft of the appendices to the July 2, 2013 final TMDL that contains staff edits, that was withheld in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it is an internal, predecisional draft version of the appendices to the TMDL. It reflects EPA staff and contractor analyses and opinions related to the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-723 July 01, 2013 10:02:42 PM RE: Appendix 5 and 6 Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 127 of 144 Page ID #:339 Ex. A, page 116 Document 003385-723 is an email chain between Cindy Lin and Amy King, the withholdings in which are fully contained in Document 003385-728 and are explained in that entry. The email chain contains one attachment, a draft of the appendices to the July 2, 2013 final TMDL that contains staff edits, that was withheld in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it is an internal, predecisional draft version of the appendices to the TMDL. It reflects EPA staff and contractor analyses and opinions related to the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-726 July 01, 2013 9:09:08 PM RE: Appendix 5 and 6 Document 003385-726 is an email chain between Cindy Lin and Amy King, the withholdings in which are fully contained in Document 003385-728 and are explained in that entry. The email chain contains one attachment, a draft of the appendices to the July 2, 2013 final TMDL that contains staff edits, that was withheld in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it is an internal, predecisional draft version of the appendices to the TMDL. It reflects EPA staff and contractor analyses and opinions related to the TMDL, as Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 128 of 144 Page ID #:340 Ex. A, page 117 required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. 003385-728 July 01, 2013 10:40:37 PM RE: Appendix 5 and 6 Document 003385-728 is an email chain containing fourteen emails between Amy King and Cindy Lin discussing staff edits to the draft appendices to the July 2, 2013 final TMDL. The ninth, tenth, and fourteenth emails were withheld in part. The thirteenth email contains one withholding pursuant to Exemption 6 that is not challenged by Plaintiff. The remainder of the email chain was released in full. The email chain contains one attachment, a draft version of the appendices to the July 2, 2013 final TMDL, that was withheld in full. The withheld information is protected under Exemption 5’s deliberative process privilege because it is an internal, predecisional draft version of the appendices to the TMDL and an accompanying discussion on its content. It reflects EPA staff and contractor analyses and opinions related to the TMDL, as required by section 303(d) of the CWA. The information is predecisional because it predates the publication of the TMDL, was created for the purpose of assisting EPA staff and contractors in reaching a decision on the content of the TMDL, and did, in fact, assist agency decisionmakers in that regard. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 129 of 144 Page ID #:341 Ex. A, page 118 reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document to present for public comment and external peer review. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analyses and opinions that were still in development at EPA. Further, release of such information generated at this early stage of development would harm the Agency’s ability to prepare scientific assessments of this nature and have a chilling effect on candid discussions among EPA staff, scientists, and contractors concerning the scientific research and analysis authorized by the CWA and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Release would also interfere with staff's ability to brief senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Additionally, release could cause public confusion by disclosing reasons, rationales, and conclusions that were not ultimately included in the TMDL. The withheld information does not contain reasonably segregable factual information. To the extent any of the withheld information contains facts, the information is inextricably intertwined with the deliberative discussions concerning the Agency’s ongoing development of its policies. In addition, any factual information reflects the author’s selection of facts from a broad range of available information to advise Agency decisionmakers during the deliberative process concerning the deliberative process described above. The selection of those facts was an integral part of the deliberations, and the factual information contained therein is inextricably intertwined with the deliberative discussion concerning this issue. Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 130 of 144 Page ID #:342 EXHIBIT B Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 131 of 144 Page ID #:343 From: Cindy Lin To: Butcher, Jon Subject: Re: FW: Malibu Creek Sedimentation/Siltation & BMI questions Date: 03/08/2012 09:27 AM Thanks John and for your patience. I'm hoping to get to you Malibu after Ballona is done 3/26. I'll respond to Jan. Also, I saw Sarah from HTB and asked about the data and she verbally ok'd it. Can you let me know if we want all data or just certain ones? Cindy _____________________________ Cindy Lin, D. ENV. US EPA R9 Southern CA Office 600 Wilshire Blvd, Ste 1460 Los Angeles, CA 90017 Office: 213.244.1803 Cell: 858.699.1255 "Butcher, Jon" ---03/07/2012 04:19:45 PM---Cindy - Jan has been responsive and helpful, but her last email seemed like a fishing expedition to From: "Butcher, Jon" To: Cindy Lin/R9/USEPA/US@EPA Date: 03/07/2012 04:19 PM Subject: FW: Malibu Creek Sedimentation/Siltation & BMI questions Cindy - So, please respond to Jan... If you direct me to provide any of these items I will of course readily do so. Jon From: Dougall, Jan [jdougall@lvmwd.com] Sent: Wednesday, March 07, 2012 5:44 PM To: Butcher, Jon; Lin.Cindy@epamail.epa.gov Cc: Orton, Randal Subject: RE: Malibu Creek Sedimentation/Siltation & BMI questions Thanks Jon, And thanks in advance, Cindy. 003385-067 (b) (5) Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 132 of 144 Page ID #:344 Jan Dougall LVMWD (818) 251-2167 From: Butcher, Jon [mailto:Jon.Butcher@tetratech.com] Sent: Wednesday, March 07, 2012 1:44 PM To: Dougall, Jan; Lin.Cindy@epamail.epa.gov Cc: Orton, Randal Subject: RE: Malibu Creek Sedimentation/Siltation & BMI questions Jan – I think these are questions that are best handled by Cindy Lin, by Task Order Manager on this work. She (and the RB) would be the ones for the regulatory details about listing. As to the Heal the Bay data, Cindy arranged for us to get it, so again it would be best to ask her about permissions. I’ve copied her on this email… Dr. Jon Butcher, P.H.| Director Direct: 919.485.2060 | Main: 919.485.8278 | Fax: 919.485.8280 jon.butcher@tetratech.com Tetra Tech | Complex World, Clear Solutions P.O. Box 14409 | Cape Fear Bldg Suite 105, 3200 Chapel Hill-Nelson Hwy, Research Triangle Park, NC 27709 | www.ttwater.com PLEASE NOTE: This message, including any attachments, may include privileged, confidential and/or inside information. Any distribution or use of this communication by anyone other than the intended recipient is strictly prohibited and may be unlawful. If you are not the intended recipient, please notify the sender by replying to this message and then delete it from your system. From: Dougall, Jan [mailto:jdougall@lvmwd.com] Sent: Wednesday, March 07, 2012 4:29 PM To: Butcher, Jon Cc: Orton, Randal Subject: FW: Malibu Creek Sedimentation/Siltation & BMI questions Hi Jon, Randal suggested I forward this inquiry to you. I’d like to know more about the sedimentation/siltation listings in Malibu Creek watershed. Because they were listed prior to 2006 the CA Integrated Report doesn’t say much. The questions below are based on the fields in the Integrated Report that are blank for Malibu Creek listings. Questions: 003385-068 Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 133 of 144 Page ID #:345 Can we obtain the listing data (Data Reference)? What was the Water Quality Objective/Criterion? What is the Objective/Criterion Reference? What was the Evaluation Guideline? What was the Guideline Reference? I’ve also been trying to get Heal the Bay’s benthic macroinvertebrate bioassessment data and wonder if you could help. We have the data submitted for listing, but nothing collected after that time. I used to be in fairly regular contact with Kevin Jontz at Heal the Bay, and he had told me that the data would be made available after their state of the watershed report is published. Cindy Lin said she wasn’t able to get the data for TMDL development either, but that was last fall. Since then, Kevin has left Heal the Bay and I’m not getting any response from Heal the Bay to calls. Has Heal the Bay made their data available to the EPA? If so, could you forward the data to us? Thanks, and sorry for the delay in getting you lagoon berm dates. Heal the Bay was maintaining the Coastal Conservancy lagoon probe, but I don’t know who to contact for that now. Jan Dougall LVMWD (818) 251-2167 From: Dougall, Jan Sent: Monday, February 06, 2012 9:53 AM To: 'rpurdy@waterboards.ca.gov' Subject: Malibu Creek Sedimentation/Siltation listing questions Hi Renee, We are looking at the Sedimentation / Siltation listings in Malibu Creek watershed in advance of EPA development of the TMDL. Because the listings were made prior to 2006, our current understanding of the listings is limited. Could someone from your staff provide us with the listing data and answer the following questions? Questions: Can we obtain the listing data (Data Reference)? What was the Water Quality Objective/Criterion? What is the Objective/Criterion Reference? What was the Evaluation Guideline? 003385-069 Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 134 of 144 Page ID #:346 What was the Guideline Reference? Thank you, Jan Dougall Environmental Analyst Las Virgenes Municipal Water District 4232 Las Virgenes Rd. Calabasas, CA 91302 (818) 251-2167 jdougall@lvmwd.com 003385-070 Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 135 of 144 Page ID #:347 EXHIBIT C Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 136 of 144 Page ID #:348 From: Cindy Lin To: Butcher, Jon Cc: King, Amy; Cindy Lin Subject: Re: Malibu check-in Date: 08/24/2012 10:10 AM Hi Jon, So, just capturing what we just discussed ( I have a short memory these days). -Redo O/E calculations with the new Socal reference data set from P.Ode (Mike Paul) I will double check with HTB folks on the phab data again. Timeline: draft rationale/analyses in 2 weeks Ready draft rationale and discussion to stakeholders by 9/20 Let's check-in next Friday again. Thank you, this has been very helpful. Cindy _____________________________ Cindy Lin, D. ENV. US EPA R9 Southern CA Office 600 Wilshire Blvd, Ste 1460 Los Angeles, CA 90017 Office: 213.244.1803 Cell: 858.699.1255 "Butcher, Jon" ---08/24/2012 05:49:59 AM---Poor benthic biota in Malibu Creek appears to be due to a combination of sedimentation, altered flow From: "Butcher, Jon" To: Cindy Lin/R9/USEPA/US@EPA, "King, Amy" , Date: 08/24/2012 05:49 AM Subject: Malibu check-in Poor benthic biota in Malibu Creek appears to be due to a combination of sedimentation, altered flow regime, and eutrophication. 003385-093 (b) (5) (b) (5) Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 137 of 144 Page ID #:349 . The impairment has a strong correlation with impervious cover, which effects the flow regime, nutrient loads, and peak flows that cause channel instability. . . Heal the Bay samples turbidity but not TSS. I am reluctant to rely on their turbidity because most of their samples are dry weather and the turbidity values are quite low. 003385-094 (b) (5) (b) (5) (b) (5) (b) (5) Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 138 of 144 Page ID #:350 One way to proceed . Unfortunately, at this point we only have detailed PHab information from the LVMWD sites, which do not include any of the reference sites. Our biggest data gap at present is that we have not received the PHab info from the Heal the Bay sites from Harrington. Dr. Jon Butcher, P.H.| Director Direct: 919.485.2060 | Main: 919.485.8278 | Fax: 919.485.8280 jon.butcher@tetratech.com Tetra Tech | Complex World, Clear Solutions P.O. Box 14409 | 1 Park Drive, Suite 200, Research Triangle Park, NC 27709 | www.tetratech.com PLEASE NOTE: This message, including any attachments, may include privileged, confidential and/or inside information. Any distribution or use of this communication by anyone other than the intended recipient is strictly prohibited and may be unlawful. If you are not the intended recipient, please notify the sender by replying to this message and then delete it from your system. 003385-095 (b) (5) (b) (5) Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 139 of 144 Page ID #:351 EXHIBIT D Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 140 of 144 Page ID #:352 From: King, Amy To: Butcher, Jon; Lincoln, Ann; Paul, Michael; Lin, Cindy Subject: Malibu Schedule Date: Tuesday, April 09, 2013 8:05:17 AM Attachments: Malibu - schedule (with Cindy"s additions 040913).xlsx Hi all, Cindy and I worked up an overall schedule a week or so ago. Cindy had some additions (Cindy, these are in blue in the attached), which I incorporated; however, she may have had more that I don’t have on hand. I just wanted to make sure we had something to talk through later this morning and can send a revised version later after working with Cindy more. Thanks, Amy Amy King | Water Resources Scientist Main: 303.217.5700 | Direct: 720.881.5874 | Fax 303.217.5705 amy.king@tetratech.com Tetra Tech | Complex World, Clear Solutions 350 Indiana Street, Suite 500 | Golden, Colorado 80401 | www.ttwater.com PLEASE NOTE: This message, including any attachments, may include privileged, confidential and/or inside information. Any distribution or use of this communication by anyone other than the intended recipient is strictly prohibited and may be unlawful. If you are not the intended recipient, please notify the sender by replying to this message and then delete it from your system. 003385-381 Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 141 of 144 Page ID #:353 EXHIBIT E Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 142 of 144 Page ID #:354 From: King, Amy To: Lin, Cindy Subject: RE: TMDL report Date: Wednesday, June 26, 2013 4:24:25 PM Attachments: USEPA RTC for Letters submitted post Jan 28 2013.docx Hi Cindy, Attached are the responses to the Post-Jan 28 comments. Let me know how these look. I need to get some food ready for the masses here. I’ll pick back up later this evening, but will probably first get the appendices out of the way. My additional changes to the TMDL report should be pretty quick if I do them with the overall formatting edits. Thanks, Amy From: Lin, Cindy [mailto:Lin.Cindy@epa.gov] Sent: Wednesday, June 26, 2013 5:11 PM To: King, Amy Subject: RE: TMDL report Thanks. Go ahead with TMDL. If you can get to me by this evening, that’ll be fine. Cindy From: King, Amy [mailto:amy.king@tetratech.com] Sent: Wednesday, June 26, 2013 3:31 PM To: Lin, Cindy Subject: RE: TMDL report Sure thing. Can I keep going with the TMDL report or do you want in? From: Lin, Cindy [mailto:Lin.Cindy@epa.gov] Sent: Wednesday, June 26, 2013 4:11 PM To: King, Amy Subject: RE: TMDL report Thanks Amy. I have to really jam on these legal responses. Can you help with our RTC Part 2. These are comments we received after the comment period. They are pretty much same comments except for one. Could you cut and paste from our larger RTC doc and place into this doc? Let me know if you have any questions. Cindy From: King, Amy [mailto:amy.king@tetratech.com] Sent: Wednesday, June 26, 2013 2:54 PM 003385-699 (b) (5) Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 143 of 144 Page ID #:355 To: Lin, Cindy Subject: TMDL report Hi Cindy, I just reposted the TMDL report on the SharePoint with today’s date. My latest of the RTC is also up there (comment bubbles ID the pending items…plus my editorial review). I got through the station ID changes in the maps and text in the TMDL report, but have some more changes to a few graphs and several of the tables. I can make these changes later when working on other formatting issues (but if you still won’t be in the report for a while, I can do them this afternoon). In the meantime, I will finish up the Appendices tonight and send your way…then reviewing RTC (and pending Jon’s reply on a couple). Thanks, Amy Amy King | Water Resources Scientist Main: 303.217.5700 | Direct: 720.881.5874 | Fax 303.217.5705 amy.king@tetratech.com Tetra Tech | Complex World, Clear Solutions 350 Indiana Street, Suite 500 | Golden, Colorado 80401 | www.ttwater.com PLEASE NOTE: This message, including any attachments, may include privileged, confidential and/or inside information. Any distribution or use of this communication by anyone other than the intended recipient is strictly prohibited and may be unlawful. If you are not the intended recipient, please notify the sender by replying to this message and then delete it from your system. 003385-700 Case 2:16-cv-00570-AB-E Document 29-2 Filed 12/02/16 Page 144 of 144 Page ID #:356 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 EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section, Civil Division JUSTIN A. OKUN (Cal. Bar No. 230954) Assistant United States Attorney Federal Building, Suite 7516 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 894-7354 Facsimile: (213) 894-7819 E-mail: Justin.Okun@usdoj.gov Attorneys for Defendant United States Environmental Protection Agency UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA LEMIEUX & O’NEILL, EX REL. LAS VIRGENES – TRIUNFO JOINT POWERS AUTHORITY, a public agency, Plaintiff, v. GINA McCARTHY, Administrator of the UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; and DOES 1-10, inclusive, Defendants. No. CV 16-00570 AB (Ex) SEPARATE STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Hearing on Motion Date: January 30, 2017 Time: 10:00 a.m. Place: Courtroom 4 – Spring Street Honorable André Birotte Jr. United States District Judge Case 2:16-cv-00570-AB-E Document 29-3 Filed 12/02/16 Page 1 of 18 Page ID #:357 1 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 STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Pursuant to Federal Rule of Civil Procedure 56 and Central District Local Rule 56-1, Defendant, the United States Food and Drug Administration (“FDA” or “Defendant”) submits this Separate Statement of Undisputed Facts and Conclusions of Law. Defendant’s Motion for Summary Judgment came on regularly for hearing on January 30, 2017, before the Honorable André Birotte Jr., United States District Judge. The Court having considered the parties’ filing, evidence presented, memorandum of points and authorities, and oral argument at the hearing, the Court makes the following Findings of fact and Conclusions of Law: FINDINGS OF FACT 1. This action pertains to a Freedom of Information Act (“FOIA”) request that plaintiff Lemieux & O’Neill (“Lemieux”), a law firm, on behalf of its client Las Virgenes – Triunfo Joint Powers Authority (“Las Virgenes”), a public agency, (collectively, “Plaintiff”) submitted to defendant United States Environmental Protection Agency (“EPA” or “Agency”). Plaintiff seeks disclosure of records and correspondence for the period 2010-14 related to the “Malibu Creek and Lagoon Total Maximum Daily Load for Sedimentation and Nutrients to Address Benthic Community Impairments” (the “2013 TMDL”). Dkt. 1. 2. Plaintiff’s FOIA request is related to an underlying action Las Virgenes, represented by Lemieux, brought against the EPA challenging the EPA’s establishment of the 2013 TMDL. See Las Virgenes – Triunfo Joint Powers Authority v. Gina McCarthy, EPA Administrator, No. C 14-01392 SBA (N.D. Cal.) (“Las Virgenes”). Cross-motions for summary judgment were entered in that case and the United States District Court for the Northern District of California denied Las Virgenes’ motion and granted the EPA’s motion. Order, Dkt. 88; Id. Las Virgenes filed an appeal, which is currently pending before the Ninth Circuit. Id., No. 16-15327 (9th Cir.). Case 2:16-cv-00570-AB-E Document 29-3 Filed 12/02/16 Page 2 of 18 Page ID #:358 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. Plaintiff’s FOIA request was made after the court in Las Virgenes denied Las Virgenes’ attempt to seek discovery outside the administrative record and stipulated not to seek discovery in the district court case. Stip., Dkt. 61, 62, Id., No. C 14-01392 SBA. 4. Plaintiff’s FOIA request to the EPA seeks “records and correspondence” between the EPA and “(1) consultants; (2) contractors and subcontractors; (3) nonpublic entities; (4) public entities and joint power authorities; (5) non-governmental organizations; (6) academic institutions; and (7) the general public for the period between 2010 and 2014, in connection with the ‘Malibu Creek and Lagoon TMDL for Sedimentation and Nutrients to Address Benthic Community Impairments’ established by the EPA in 2013 (‘2013 TMDL’).” Declaration of Janet Hashimoto (“Hashimoto Decl.”) ¶ 2; Dkt. 1-1, 1-2. 5. Plaintiff specifically stated that it was “not requesting records and correspondence which have been included in the Administrative Record prepared for Las Virgenes – Triunfo Joint Powers Authority v. E.P.A., et al. U.S.D.C. Case No. C 14- 01392 SBA.” Id. 6. After the FOIA request was received, EPA identified the custodians who might possess records responsive to Plaintiff’s request. Hashimoto Decl. ¶ 4. Other than one physical document, which was subsequently provided to Plaintiff, EPA determined that all other responsive documents were contained in email files of the identified custodians and conducted a search of the relevant email systems. Id. ¶¶ 5-7. The search results were then personally reviewed by an EPA attorney. Id. ¶ 8. 7. EPA produced responsive documents on March 24, 2015, May 7, 2015, May 21, 2015, and July 2, 2015. Compl., Dkt. 1 ¶ 13. However, EPA partially denied the FOIA request based on FOIA Exemption 5, the deliberative process privilege. See 5 U.S.C. § 552(b)(5); Compl., Dkt. 1 ¶ 13; Dkt. 1-3. EPA stated in its response letter to Plaintiff that it withheld 260 emails between it and its contractor, Tetra Tech, under Exemption 5. Case 2:16-cv-00570-AB-E Document 29-3 Filed 12/02/16 Page 3 of 18 Page ID #:359 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. During July 2015, EPA and Lemieux corresponded about the withheld documents. Compl., Dkt 1 ¶¶ 14-16; Dkt. 1-4, 1-5, 1-6. The EPA corrected its tally of withheld records, stating that a total of 485 emails were withheld pursuant to Exemption 5, and that some of the documents may contain confidential business information that belonged to contractor Tetra Tech exempt from disclosure under Exemption 4. Id.; 5 U.S.C. § 552(b)(4) (protecting from disclosure “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential”). All such claims of confidential business information were waived by Tetra Tech on April 20, 2016. The EPA also withhheld documents in part under Exemption 6, which exempts from disclosure personal privacy information. 5 U.S.C. § 552(b)(6); Hashimoto Decl. ¶ 14. Plaintiff is not challenging the Agency’s withholding under Exemption 6. Declaration of Justin A. Okun (“Okun Decl.”) ¶ 3. 9. On August 4, 2015, Plaintiff filed an administrative appeal with the EPA’s National Freedom of Information Officer challenging the EPA’s withholding of documents pursuant to Exemption 5. Compl., Dkt. 1 ¶ 17; Dkt. 1-7. Plaintiff did not challenge the adequacy of the EPA’s search for documents in its appeal to the EPA’s National Freedom of Information Officer (or in its complaint). Dkt. 1, 1-7, 1-9. On December 2, 2015, Plaintiff wrote a follow-up letter again challenging the withholding of documents under Exemption 4 and 5. Compl., Dkt. 1 ¶ 19; Dkt. 1-9. Plaintiff then filed this action on January 26, 2016. Compl., Dkt. 1 ¶ 19. 10. In April 2016, an EPA employee re-reviewed the documents that were withheld in full at the time of the Agency’s initial response and evaluated these documents for discretionary release. Hashimoto Decl. ¶ 13. As a result of this review, on April 27, 2016, the EPA released 274 emails in full and 119 emails in part from the set of documents that were originally withheld in full. Id. The Agency continues to withhold 110 attachments to emails in full under Exemption 5’s deliberative process privilege. Id. The Agency also provided Plaintiff with a detailed withholdings index Case 2:16-cv-00570-AB-E Document 29-3 Filed 12/02/16 Page 4 of 18 Page ID #:360 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that includes an entry for each document withheld in part (119 emails) or in full (110 attachments). Id. CONCLUSIONS OF LAW The sole issue for the Court to determine is whether the EPA properly withheld records in full or in part pursuant to Exemption 5, the deliberative process privilege. Plaintiff has agreed to waive any challenge to EPA’s FOIA search1 and Exemption 6 (personal privacy) withholdings. Plaintiff’s FOIA request is an attempt to circumvent Judge Armstrong’s order denying Las Virgenes additional discovery outside the administrative record and its own stipulation not to seek additional discovery. While the FOIA is a separate legal regime from civil discovery, Exemption 5 is specifically designed to prevent disclosure of records that would be privileged in the civil discovery context. A. FOIA “The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). Accordingly, FOIA generally requires the disclosure of agency records upon the request of any person. 5 U.S.C. § 552(a)(3)(A). However, the right to access agency records is not unlimited. To the contrary, FOIA includes nine statutory exemptions to the general disclosure obligation. 5 U.S.C. § 552(b)(1)-(9). These exemptions reflect Congress’s decision “to reach a workable balance between the right of the public to know and the need of the Government to keep information in confidence.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (quoting H.R. REP. NO. 89-1497, at 6 (1966), reprinted in 1966 U.S.C.C.A.N. 1 In any event, because Plaintiff failed to challenge the adequacy of the search at the administrative level, it is barred from doing so before this Court. See Olsen v. United States DOT, No. C 02-00673, 2002 U.S. Dist. LEXIS 23292, at *4-8 (N.D. Cal. Nov. 25, 2002) (citing Cleary, Gottlieb, Steen & Hamilton v. Dep’t of Health and Human Services, 844 F. Supp. 770, 779-80 (D. D.C. 1993)). Case 2:16-cv-00570-AB-E Document 29-3 Filed 12/02/16 Page 5 of 18 Page ID #:361 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2418, 2423); see also Pickard v. Dep’t of Justice, 653 F.3d 782, 790 (9th Cir. 2011) (Wallace, J., concurring) (“‘Congress established FOIA’ to strike a balance between the public’s interest in knowing ‘what [its] government is up to’ and the ‘legitimate governmental or private interests’ in withholding documents subject to FOIA’s exemptions.” (quoting Boyd v. Criminal Div. of the U.S. Dep’t of Justice, 475 F.3d 381, 385 (D.C. Cir. 2007))). Although the nine exemptions should be “narrowly construed,” FBI v. Abramson, 456 U.S. 615, 630 (1982), the Supreme Court has made clear that they must have “meaningful reach and application.” John Doe Agency, 493 U.S. at 152. B. Legal Standard A court reviews an agency’s response to a FOIA request de novo. 5 U.S.C. § 552(a)(4)(B). “[S]ummary judgment is the procedural vehicle by which nearly all FOIA cases are resolved.” Animal Legal Defense Fund v. Food and Drug Admin., 819 F.3d 1102, 1110 (9th Cir. 2016) (per curiam concurrence) (quoting Office of Information Policy, U.S. Dep't of Justice, Guide to Freedom of Information Act: Litigation Considerations 104 (2013)). Federal Rule of Civil Procedure 56(a) authorizes the granting of summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). However, because of the “unique nature” of FOIA cases, Minier v. Central Intelligence Agency, 88 F.3d 796, 800 (9th Cir. 1996), the summary judgment standard for FOIA cases “is slightly different than for other types of cases . . . .” Animal Legal Defense Fund, 819 F.3d at 1106 (quoting Yonemoto v. Dep't of Veterans Affairs, 686 F.3d 681, 688 (9th Cir. 2012)). “Unlike the typical summary judgment analysis, in a FOIA case, we do not ask whether there is a genuine issue of material fact, because the facts are rarely in dispute.” Minier, 88 F.3d at 800. The agency bears the burden of justifying the assertion of FOIA exemptions to redact or withhold documents. 5 U.S.C. § 552(a)(4)(B). To meet this burden, an agency may rely upon reasonably detailed, non-conclusory affidavits. Minier, 88 F.3d at 800 (9th Cir. 1996); Zemansky v. U.S. EPA, 767 F.2d 569, 571 (9th Cir. 1985). An affidavit Case 2:16-cv-00570-AB-E Document 29-3 Filed 12/02/16 Page 6 of 18 Page ID #:362 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that “identif[ies] the documents withheld, the FOIA exemptions claimed, and a particularized explanation of why each document falls within the claimed exemption” is “commonly referred to as a ‘Vaughn index.’” Lion Raisins Inc. v. U.S. Dep’t of Agric., 354 F.3d 1072, 1082 (9th Cir. 2004) (citing Vaughn, 484 F.2d at 823-25). “Affidavits submitted by an agency to demonstrate the adequacy of its FOIA response are presumed to be in good faith.” Hamdan, 797 F.3d at 772.2 Moreover, courts “accord substantial weight to an agency’s declarations regarding the application of a FOIA exemption.” Shannahan v. IRS, 672 F.3d 1142, 1148 (9th Cir. 2012) (quoting Hunt v. CIA, 981 F.2d 1116, 1119-20 (9th Cir. 1992)). “Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007) (citation omitted). An agency that has submitted satisfactory affidavits is entitled to summary judgment. Lion Raisins, 354 F.3d at 1082; see also Lewis v. IRS, 823 F.2d 375, 378 (9th Cir. 1987) (“If the affidavits contain reasonably detailed descriptions of the documents and allege facts sufficient to establish an exemption, ‘the district court need look no further.’” (quoting Church of Scientology of California v. U.S. Dep’t of the Army, 611 F.2d 738, 742 (9th Cir. 1979))). Lastly, under FOIA, “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.” 5 U.S.C. § 552(b). In other words, “even if part of a document is FOIA exempt, the agency must still disclose any portions which are not exempt.” Bay Area Lawyers Alliance for Nuclear Arms Control v. Dep’t of State, 818 F. Supp. 1291, 1296 (N.D. Cal. 1992). Thus, an agency must perform a “segregability analysis” distinguishing exempt from nonexempt material within each document. 2 The EPA’s supplemental search and production of additional responsive documents, Hashimoto Decl. ¶ ___, does not undermine the adequacy of the initial search or the presumption of good faith accorded to EPA’s declaration. To the contrary, conducting additional searches and correcting errors demonstrate cooperation. See Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C. Cir. 1986). Case 2:16-cv-00570-AB-E Document 29-3 Filed 12/02/16 Page 7 of 18 Page ID #:363 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Judicial Watch, Inc. v. United States Postal Serv., 297 F. Supp. 2d 252, 277 (D. D.C. 2004). C. The EPA properly asserted Exemption 5 of FOIA 1. Plaintiff’s FOIA request is an attempt to circumvent Judge Armstrong’s ruling denying Las Virgenes additional discovery and Las Virgenes’ subsequent stipulation not to seek additional discovery As noted above, “[t]he basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” Robbins Tire, 437 U.S. at 242. This purpose is accomplished by “open[ing] agency action to the light of public scrutiny.” U.S. Dep’t of Justice v. Reporters Comm. For Freedom of Press, 489 U.S. 749, 772 (1989). However, “FOIA was not intended to supplement or displace rules of discovery.” John Doe Agency, 493 U.S. at 153. “[A] FOIA request is not a substitute for the normal process of discovery in civil and criminal cases.” Rugiero v. United States Dep’t of Justice, 257 F.3d 534, 547 (6th Cir. 2001); see also Irons v. Bell, 596 F.2d 468, 574 & n.15 (1st Cir. 1979). “The primary purpose of the FOIA was not to benefit private litigants or to serve as a substitute for discovery.” Baldridge v. Shapiro, 455 U.S. 345, 360 n.14 (1982); see also Renegotiation Bd. v. Bannecraft Clothing Co., 415 U.S. 1, 24 (1974) (“Discovery for litigation purposes is not an expressly indicated purpose of the [FOIA].”); Martinez v. EEOC, No. SA-04-CA-0391-XR, 2004 U.S. Dist. LEXIS 23182, at *20 (W.D. Tex. Oct. 19, 2004) (granting defendant’s motion for summary judgment and finding that “Plaintiff [was] clearly using the FOIA as a discovery tool, guised as a matter of public interest.”); Comer v. IRS, No. 97-CV-76329, 2000 U.S. Dist. LEXIS 19981, at *3 (E.D. Mich. Oct. 5, 2000) (“FOIA is not intended to be a substitute for discovery”). The documents Plaintiff seeks in this litigation are precisely the documents it sought to obtain in the underlying action in the Northern District of California. Las Virgenes sought from the EPA comments from entities regarding the draft 2013 TMDL, Case 2:16-cv-00570-AB-E Document 29-3 Filed 12/02/16 Page 8 of 18 Page ID #:364 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 peer review comments regarding the draft 2013 TMDL, reports prepared by contractors for the EPA regarding the 2013 TMDL, and “drafts and deliberative documents” regarding the 2013 TMDL. Ltr. to Counsel, Dkt. 55-2, Las Virgenes. These are precisely the documents Plaintiff seeks to obtain in this FOIA action. Dkt. 1-1. In the underlying action, Plaintiff failed to file a discovery motion on time and “failed to demonstrate that an extension of time to file a discovery motion is appropriate” as “[j]udicial review of an agency’s decision typically focuses on the administrative record in existence at the time of the decision and does not encompass any part of the record that is made initially in the reviewing court.” Order, Dkt. 61 at 3, Las Virgenes. Las Virgenes did “not identify any ‘holes’ in the administrative record that [could] be ‘plugged’ through discovery” and had failed previously “to articulate a basis for why discovery [was] appropriate” in the case despite having had “ample time to review the administrative record.” Id. at 3-4. Accordingly, its attempt to obtain document outside the administrative record was denied. Id. Further, two weeks later Las Virgenes filed a joint stipulation in which it stated that it would “not seek discovery in this action.” Joint Stip., Dkt. 62, Id. Plaintiff’s FOIA request is thus an attempt to circumvent Judge Armstrong’s order and its own stipulation and obtain through FOIA what it was denied under the rules of discovery, and even agreed not to seek. Plaintiff is “clearly using the FOIA as a discovery tool, guised as a matter of public interest.” Martinez, 2004 U.S. Dist. LEXIS 23182, at *20. However, Exemption 5 was specifically designed to prevent a party from obtaining through FOIA documents it is not entitled to receive in civil discovery: Moreover, respondents’ contention that they can obtain through the FOIA material that is normally privileged would create an anomaly in that the FOIA could be used to supplements civil discovery. We have consistently rejected such a construction of the FOIA. We do not think that Congress could have intended that the weighty policies underlying privileges could be so easily circumvented. Case 2:16-cv-00570-AB-E Document 29-3 Filed 12/02/16 Page 9 of 18 Page ID #:365 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 United States v. Weber Aircraft Corp., 465 U.S. 792, 801-02 (1984) (internal citations omitted). Plaintiff’s attempt to seek documents it was not entitled to in discovery, in particular, “drafts and deliberative documents” regarding the 2013 TMDL (Ltr. to Counsel, Dkt. 55-2, Las Virgenes) is prohibited under Exemption 5. 2. The Deliberative Process Privilege Protects Documents Redacted and Withheld by EPA Exemption 5 of FOIA permits an agency to withhold from the public “inter- agency or intra-agency memorandums or letters which would not be available to a party by law other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). This exemption shields documents of the type that would be privileged in the civil discovery context. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). Exemption 5 incorporates the deliberative process privilege. Dep’t of the Interior v. Klamath Water Users’ Protective Ass’n, 532 U.S. 1, 8 (2001). The purpose of the deliberative process privilege is “to allow agencies freely to explore possibilities, engage in internal debates, or play devil’s advocate without fear of public scrutiny.” Carter v. U.S. Dep’t of Commerce, 307 F.3d 1084, 1088-89 (9th Cir. 2002) (citations omitted). As the Supreme Court has explained, “The deliberative process privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance the quality of agency decisions by protecting open and frank discussion among those who make them within the Government.” Klamath, 532 U.S. at 8-9 (internal quotation marks and citations omitted); see also Nat’l Wildlife Fed’n v. U.S. Forest Serv., 861 F.2d 1114, 1117 (9th Cir. 1988) (observing that the privilege “maintain[s] the confidentiality of the give-and-take that occurs among agency members in the formulation of policy”). The privilege also serves to “protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency’s action.” Kortlander v. Bureau of Land Mgmt., 816 F. Supp. 2d 1001, 1011 (D. Case 2:16-cv-00570-AB-E Document 29-3 Filed 12/02/16 Page 10 of 18 Page ID #:366 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mont. 2011) (quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)). To fall within the deliberative process privilege, a document must be both “(1) ‘predecisional’ or ‘antecedent to the adoption of agency policy’ and (2) ‘deliberative,’ meaning ‘it must actually be related to the process by which policies are formulated.’” Nat’l Wildlife Fed’n, 861 F.2d at 1117 (quoting Jordan v. U.S. Dep’t of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978)). A document is “predecisional if it was ‘prepared in order to assist an agency decisionmaker in arriving at his decision.’” Assembly of the State of California v. U.S. Dep’t of Commerce, 968 F.2d 916, 921 (9th Cir. 1992) (quoting Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168, 184 (1975)). A document is “deliberative” if “disclosure of materials would expose an agency’s decision-making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.” Id. (quoting Dudman Comm’ns Corp. v. Dep’t of the Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987)). Documents covered by the deliberative process privilege include “‘recommendations, draft documents, proposals, suggestions and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency,’ as well as documents which would ‘inaccurately reflect or prematurely disclose the views of the agency.’” Nat’l Wildlife Fed’n, 861 F.2d at 1118-19 (quoting Coastal States Gas Corp., 617 F.2d at 866); see also Klamath, 532 U.S. at 8. “Draft documents subject to revision or containing proposed changes fall well within the deliberative process privilege.” Kortlander, 816 F. Supp. 2d at 1012 (citing Nat’l Wildlife Fed’n, 861 F.2d at 1120-21); accord Exxon Corp. v. Dep’t of Energy, 585 F. Supp. 690, 698 (D.D.C. 1983) (“Draft documents, by their very nature, are typically predecisional and deliberative.”); see also Mobil Oil Corp. v. EPA, 879 F.2d 698, 703 (9th Cir. 1989) (dicta) (noting that “deliberative process privilege protection under exemption 5 is available to a draft document regardless of whether it differs from its final version”). Case 2:16-cv-00570-AB-E Document 29-3 Filed 12/02/16 Page 11 of 18 Page ID #:367 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Requiring disclosure of draft documents could have a chilling effect on internal agency discussions. See Nat’l Wildlife Fed’n, 861 F.2d at 1122. Indeed, this chilling effect is a concern even if a draft document reflects only editorial changes to factual material, because “[i]n some circumstances, the mere editing of factual material may constitute a policymaking process which is deliberative and therefore privileged.” Nevada v. U.S. Dep’t of Energy, 517 F. Supp. 2d 1245, 1264 (D. Nev. 2007); see also Nat’l Wildlife Fed’n, 861 F.2d at 1122 (recognizing that Exemption 5 prevents a FOIA requester from reconstructing an agency’s pre-decisional judgment by comparing findings and projections of draft and final documents; the deliberative process privilege protects “the editorial and policy judgment of the decisionmakers”). Emails qualify as deliberative where candor is at a premium. See Maricopa Audubon Soc’y v. U.S. Forest Serv., 108 F.3d 1089, 1095 (9th Cir. 1997). Similarly, disclosure of “work plans, status reports, briefings, opinion papers, and proposals” would “stifle the candor necessary in an agency’s policy making process.” Hornbostel v. Dep’t of the Interior, 305 F. Supp. 2d 21, 31 (D. D.C. 2003); see also Klunzinger v. IRS, 27 F. Supp. 2d 1015, 1026-27 (W.D. Mich. 1998). As noted above, this Court must accord substantial weight to EPA’s application of Exemption 5. Shannahan, 672 F.3d at 1148. The Agency is best situated “to know what confidentiality is needed ‘to prevent injury to the quality of agency decisions.’” Chem. Mfrs. Ass’n v. Consumer Prod. Safety Comm’n, 600 F. Supp. 114, 118 (D.D.C. 1984) (quoting Sears, Roebuck & Co., 421 U.S. at 151). EPA’s justification for asserting Exemption 5 is “sufficient if it appears ‘logical’ or ‘plausible.’” Wolf, 473 F.3d at 374- 75. EPA has relied on Exemption 5 to redact or withhold documents protected by the deliberative process privilege. These documents fall into four general categories relating to the Agency’s work on the TMDL: (1) discussions regarding what content to include in the 2013 TMDL, including draft sections of the 2013 TMDL, (2) discussions regarding responses to inquiries from the Las Virgenes Municipal Water District (“LVMWD”), (3) Case 2:16-cv-00570-AB-E Document 29-3 Filed 12/02/16 Page 12 of 18 Page ID #:368 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 internal work planning discussions concerning how to allocate resources to efficiently complete the TMDL, and (4) discussions regarding EPA’s official response to public comments provided in response to proposed TMDL. Hashimoto Decl. ¶ 16. The first category – discussions regarding what content to include in the 2013 TMDL – includes documents reflecting draft language for the TMDL and discussion regarding the TMDL content. This category covers both email discussions and draft portions of the TMDL. The EPA publicly issued a proposed TMDL for public comment on December 12, 2012 and a final TMDL on July 2, 2013. Id. ¶¶ 18-21. The withheld information in the emails is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations reflecting EPA staff and contractor opinions and analyses related to the EPA’s development of the 2013 TMDL, which included the December 12, 2012 proposed TMDL and the July 2, 2013 final TMDL.3 Id. The withheld information is predecisional because it either relates to, but predates, the publication of the December 12, 2012 proposed TMDL, or it relates to, but predates, the July 2, 2013 final TMDL. Id. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in the TMDL. Id. 3 Regarding documents created by contractors for EPA, “Documents and communications may qualify as ‘intra-agency’ materials when they ‘ha[ve] been received by an agency, to assist it in the performance of its own functions, from a person acting in a governmentally conferred capacity other than on behalf of another agency— e.g., in a capacity as an employee or consultant to the agency.’” Citizens for Responsibility & Ethics in Washington v. Dep’t of Homeland Sec., 514 F. Supp. 2d 36, 44 (D.D.C. 2007) (quoting Klamath, 532 U.S. at 9-10); see also Sakamoto v. U.S. EPA, 443 F. Supp. 2d 1182, 1190-92 (N.D. Cal. 2006) (finding documents authored by consultants were intra-agency records); Citizens Progressive Alliance v. U.S. Bureau of Indian Affairs, 241 F. Supp. 2d 1342, 1355-56 (D.N.M. 2002) (finding letter and report prepared for agency by private company constituted intra-agency records, in part because “the documents are analogous to the type of work an employee of the agency would do”). Case 2:16-cv-00570-AB-E Document 29-3 Filed 12/02/16 Page 13 of 18 Page ID #:369 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Likewise, EPA properly withheld drafts of the proposed 2012 TMDL and the final 2013 TMDL. EPA staff and/or contractors circulated the drafts for internal review and comment to develop EPA’s official position on the sections within the TMDL. Additionally, the draft TMDL sections that were withheld in full were done so because there is no reasonably segregable, non-exempt information that can be disclosed from the drafts. Id. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analysis and opinions that were still in development at EPA. Id. Further, release of this information generated at this early stage of development would harm the Agency’s ability to evaluate information and fairly consider different approaches to documents of this nature and have a chilling effect on candid discussions among EPA staff and contractors concerning the scientific research and analysis authorized by the Clean Water Act, consequently undermining EPA’s ability to perform its basic functions. Id. Release would also interfere with staff's ability to advise senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Id. Furthermore, release could cause public confusion by disclosure of reasons, rationales, and conclusions that were not in fact ultimately included in the TMDL. Id. The second category of documents includes the development of responses to inquiries from the LVMWD regarding data from Malibu creek that related to the TMDL. Id. ¶ 22. As explained, the 2013 TMDL establishes pollutant loading limitations for Malibu Creek that could affect future NPDES permit requirements for the water treatment facility operated by the LVMWD. Thus, LVMWD made various inquires while EPA was developing the TMDL. These discussions were part of the process of deciding how to respond to LVMWD’s inquiries. The withheld information is protected under Exemption 5’s deliberative process privilege because it contains internal, predecisional deliberations regarding responses to inquiries from the LVMWD that reflect EPA staff and contractor analyses, advice, and recommendations related to EPA’s Case 2:16-cv-00570-AB-E Document 29-3 Filed 12/02/16 Page 14 of 18 Page ID #:370 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 external communications policy concerning the 2013 TMDL. Id. The withheld information is internal to EPA staff and is pre-decisional because it was generated prior to arriving at a final decision regarding the content or timing of external communications with LVMWD. Id. The withheld information is also pre-decisional because it was prepared for the purpose of assisting EPA decision-makers in arriving at an external communications policy decision and, in fact, contributed to the Agency’s decision- making process in that regard. Id. The information also relates to the EPA’s on-going work on the TMDL. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to formulate communications strategy and does not reflect an official Agency decision or policy, rather it reflects analysis and opinions on proposals still in development at the EPA. Id. Further, release of this information would have a chilling effect on the Agency’s ability to have open and frank discussions among its staff concerning the Agency's policy priorities in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Id. Release would also interfere with staff's ability to advise senior officials with a variety of options or ideas that may not ultimately be selected for Agency action. Id. Furthermore, release could cause public confusion by disclosure of reasons, rationales, and conclusions that were not in fact ultimately the position of the EPA or the U.S. Government. Id. The third category of documents that were withheld in full or in part pursuant to Exemption 5’s deliberative process privilege is discussions involving internal work planning concerning how to allocate resources to efficiently complete the TMDL. Id. ¶ 23. The withheld information is protected under Exemption 5’s deliberative process privilege because it is internal discussions about work planning and division of labor, including draft meeting agendas, draft workflow presentations, and work plans. Id. The withheld information is internal to EPA and its contractors. Id. The discussions are pre- decisional because they precede final Agency decisions on how to logistically proceed with the development of the TMDL, assisted in arriving at final Agency decisions, and Case 2:16-cv-00570-AB-E Document 29-3 Filed 12/02/16 Page 15 of 18 Page ID #:371 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 did, in fact, contribute to final Agency decisions. Id. The withheld information is deliberative because it reflects the personal opinions and thoughts of EPA staff and contractors working to develop the TMDL, and does not reflect the information, analysis, or preliminary conclusions ultimately selected for inclusion in that document. Id. The withheld information does not represent an official Agency decision concerning which content to include in the TMDL but instead reflects analysis and opinions on analysis that were still in development at EPA. Id. Further, release of this information generated at this early stage of development would harm the Agency’s ability to prepare documents of this nature and have a chilling effect on candid discussions among EPA staff and EPA scientists concerning the scientific research and analysis authorized by the Clean Water Act and in furtherance of the EPA’s mission, consequently undermining EPA’s ability to perform its basic functions. Id. Release would also interfere with staff's ability to advise senior officials with a range of options, ideas, or analysis related to what content to include in the assessment that may not ultimately be selected for publication. Id. Furthermore, release could cause public confusion by disclosure of reasons, rationales, and conclusions that were not in fact ultimately included in the TMDL. Id. The last category of documents are discussions about EPA’s official response to public comments on the proposed TMDL. Id. ¶ 24. EPA issued the proposed TMDL for public comment on December 12, 2012. EPA received over one hundred comments in response, including formal comments submitted by LVMWD. Id. These documents were part of the process of deciding how to effectively respond to public comments, including the nature and timing of EPA’s responses. EPA released its official response to the public comments on July 2, 2013. The withheld information is protected under Exemption 5's deliberative process privilege because it contains internal agency discussions reflecting staff analyses, advice, and recommendations relating to EPA’s then-ongoing review of the public comment and evaluation process concerning the TMDL. Id. The withheld information is internal to EPA and its contractors. Id. The withheld information does not represent an official Case 2:16-cv-00570-AB-E Document 29-3 Filed 12/02/16 Page 16 of 18 Page ID #:372 16 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 Agency decision or policy and instead reflects analysis and opinions on proposals related to responding to public comments that were still in development at the EPA. Id. The withheld information is pre-decisional because it was created for the purpose of assisting EPA staff and contractors in reaching a decision on responding to public comments to the draft and did, in fact, assist agency decision makers in that regard. Id. The withheld information is deliberative because it represents staff opinions and judgments of staff that were under consideration by the EPA and do not reflect final Agency decisions regarding final responses to comments. Id. Release of this information would have a chilling effect on the Agency’s ability to have open and frank discussions among its staff and with contractors concerning the Agency's policy priorities when responding to public comments. Id. Release would also interfere with the ability of staff and contractors to advise senior officials with a variety of options or ideas for processing and responding to public comments that may not ultimately be selected for Agency action. Id. Furthermore, release could cause public confusion by disclosure of reasons, rationales, and conclusions that were not in fact ultimately the position of the EPA or the U.S. Government. Id. 3. EPA Has Released All Reasonably Segregable Portions Of Records Withheld Under Exemption 5. FOIA requires agencies to release “[a]ny reasonably segregable portion of a record . . . after deletion of the portions which are exempt under this subsection.” 5 U.S.C. § 552(b). “The agency can meet its burden by offering an affidavit with reasonably detailed descriptions of the withheld portions of the documents and alleging facts sufficient to establish an exemption.” Pacific Fisheries, Inc. v. United States, 539 F.3d 1143, 1148 (9th Cir. 2008) (citations omitted). However, in some cases segregation may not be feasible without revealing the protected information. See id. at 1148-49. In such cases, an agency need not disclose the factual material. See id. at 1148 (“Factual portions of documents covered by the deliberative process privilege must be segregated and disclosed unless they are ‘so interwoven with the deliberative material that [they are] Case 2:16-cv-00570-AB-E Document 29-3 Filed 12/02/16 Page 17 of 18 Page ID #:373 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 not [segregable].’” (quoting United States v. Fernandez, 231 F.3d 1240, 1247 (9th Cir. 2000))). Consistent with this obligation, EPA has reviewed the documents redacted or withheld under Exemption 5 and has concluded that has released all reasonably segregable portions of records redacted under Exemption 5 and that it is not possible to further segregate and release purely factual material from these documents without disclosing the deliberative communications of the documents’ authors. Hashimoto Decl. ¶ 25. The documents withheld in their entirety contain no meaningful portion that could be released without destroying the integrity of the document or without disclosing deliberative discussions, the release of which would harm the Agency’s decision-making process. Id. CONCLUSION For the reasons stated above, summary judgment is entered in favor of Defendant. Defendant has conducted an adequate search for the requested records, properly asserted FOIA Exemption 5, and provided a sufficiently detailed Vaughn index justifying the Agency’s withholdings. There is no material factual in dispute, and Defendant is entitled to summary judgment in this matter. Dated: December 2, 2016 Respectfully submitted, EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section, Civil Division /s/ Justin A. Okun Assistant United States Attorney Attorneys for Defendant United States Environmental Protection Agency Case 2:16-cv-00570-AB-E Document 29-3 Filed 12/02/16 Page 18 of 18 Page ID #:374 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 EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section, Civil Division JUSTIN A. OKUN (Cal. Bar No. 230954) Assistant United States Attorney Federal Building, Suite 7516 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 894-7354 Facsimile: (213) 894-7819 E-mail: Justin.Okun@usdoj.gov Attorneys for Defendant United States Environmental Protection Agency UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA LEMIEUX & O’NEILL, EX REL. LAS VIRGENES – TRIUNFO JOINT POWERS AUTHORITY, a public agency, Plaintiff, v. GINA McCARTHY, Administrator of the UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; and DOES 1-10, inclusive, Defendants. No. CV 16-00570 AB (Ex) [PROPOSED] JUDGMENT FOR DEFENDANT Hearing on Motion Date: January 30, 2017 Time: 10:00 a.m. Place: Courtroom 4 – Spring Street Honorable André Birotte Jr. United States District Judge Case 2:16-cv-00570-AB-E Document 29-4 Filed 12/02/16 Page 1 of 2 Page ID #:375 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 [PROPOSED] JUDGMENT FOR DEFENDANT Defendant’s Motion for Summary Judgment came on regularly for hearing on January 30, 2017, before the Honorable André Birotte Jr., United States District Judge. The Court having considered the pleadings, evidence presented, memorandum of points and authorities and the oral argument at the time of the hearing, and in accordance with the Findings of Fact and Conclusions of Law filed herein: HEREBY ORDERS, ADJUDGES AND DECREES that judgment is entered in favor of Defendant on all causes of action. DATED: ANDRÉ BIROTTE JR. UNITED STATES DISTRICT JUDGE Presented by: EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section, Civil Division /s/ Justin A. Okun Assistant United States Attorney Attorneys for Defendant United States Environmental Protection Agency Case 2:16-cv-00570-AB-E Document 29-4 Filed 12/02/16 Page 2 of 2 Page ID #:376
