In accordance with the Final Court order and the National Environmental Policy Act (NEPA), the Final Environmental Impact Study (EIS) for the 2008 U.S. Fish and Wildlife Service Biological Opinion and the 2009 National Marine Fisheries Service Biological Opinion was released by the Bureau of Reclamation on November 23, 2015. The Draft EIS was available for public review from July 31, 2015 – September 29, 2015. Four public meetings were held throughout the state during September 2015.
In January 2016, the Bureau released its record of decision, stating that the agency intends to continue to implement the salmon biological opinion.
In late summer 2009, the Coalition and Kern County Water Agency (KCWA) filed a lawsuit over the June 2009 salmon biological opinion issued by the National Marine Fisheries Service (NMFS).
In September 2011, Judge Oliver Wanger of the Eastern District Court of California issued a decision in the Consolidated Salmonid Cases challenging the 2009 biological opinion and reasonable and prudent alternative (RPA) issued by the NMFS regarding the effects of Central Valley Project (CVP) and State Water Project (SWP) operations in California on five listed fish species in the Delta (winter-run and spring-run Chinook salmon, Central Valley steelhead, green sturgeon, and Southern Resident killer whales). The court considered dozens of claims advanced by plaintiffs and held for plaintiffs in whole or in part with respect to about half of the claims. Specifically, the court held that:
- NMFS acted unlawfully by relying on unscaled data regarding salvage at the export facilities rather than scaling the data to the population size.
- NMFS failed to provide a basis for its determination that the winter-run Chinook salmon is at “high risk” of extinction.
- NMFS’s Orca jeopardy analysis is unlawful due to the agency’s failure to take into consideration its Orca Salmon Harvest biological opinion.
- The record does not support NMFS’s conclusion that CVP and SWP operations cause indirect mortality caused by exotic species, pollution, and food limitations.
- The record provides marginal support for a component of the RPA that imposes an inflow to export ratio on the San Joaquin River from April 1 through May 31, but does not provide support for the specific 4:1 ratio imposed in above normal and wet years.
- The record provides nominal support for a component of the RPA that restricts reverse flows on Old and Middle rivers from January 1 through June 15, but NMFS must explain the necessity of the specific flow prescriptions imposed.
- NMFS failed to provide any explanation for the specific levels of salvage identified by the agency as the trigger of an RPA component that limits combined CVP and SWP exports from November to December 31.
- NMFS failed to comply with the requirements of its own regulations when formulating the RPA.
Although the Court affirmed the federal agency’s jeopardy determination in the decision, at the same time it held that the 2009 biological opinion is “arbitrary”, “capricious”, and “unlawful” and remanded the biological opinion to NMFS.
This decision was appealed.
On December 22, 2014, the Ninth Circuit Court of Appeals reversed the decision issued by the federal district court for the Eastern District of California. Similar to the opinion issued March 13, 2014 in The Consolidated Delta Smelt Cases, the Ninth Circuit Court found that the lower court created a “battle of experts” that violated the Administrative Procedure Act’s “arbitrary and capricious” standard of review.
Essentially this standard is in place to prevent a court from substituting its own judgement for that of the expert agency involved. The Endangered Species Act requires the implementing agencies to use the “best scientific and commercial data available” when developing a Biological Opinion. The Ninth Circuit held that this standard “merely prohibits [an agency] from disregarding available scientific evidence that is in some way better than the evidence it relies on.” However, the court may not determine whether the agency applied the best analysis of the science, or if the decision could have had a different outcome.
Essentially the court ruled that the 2008 FWS BiOp was valid.
As a result of the Ninth Circuit Court’s ruling, On May 5, 2015 the Eastern District court issued a final ruling stating, among other things, the following:
- Reclamation violated National Environmental Policy Act (NEPA) by failing to perform any NEPA analysis prior to provisionally adopting and implementing the 2009 Salmonid BiOp
- As a result of the Ninth Circuit ruling, previous rulings from the Eastern District court regarding NMFS are no longer subject to the jurisdiction of the Eastern District court
- Reclamation must comply with obligations under NEPA and issue a finding of no significant impact or record of decision by no later than December 2016
Collaborative Science and Adaptive Management Program
In April 2013, while both the delta smelt and salmonid decisions were on appeal, the district court issued an order establishing the Collaborative Science and Adaptive Management Program (CSAMP) to allow the parties to pursue a collaborative science program to help inform development and implementation of future biological opinions. The CSAMP, which is advised by the Collaborative Adaptive Management Team (CAMT), is intended to facilitate the development of common understandings of science, and to increase transparency through information sharing and a commitment to work together. The CSAMP and CAMT processes are currently ongoing.