Judge Orders Revision of Federal Salmon Plan

Judge Wanger orders revision of federal salmon plan

In a federal court ruling in Fresno, Judge Oliver Wanger ruled that key parts of the federal government’s Biological Opinion meant to protect winter- and spring-run chinook salmon and Central Valley steelhead in the California Delta were invalid due, in part, to a reliance on faulty science. The ruling will likely force the federal government to rewrite significant portions of the 844-page Biological Opinion for salmon in the Delta.

The 270-page decision addressed the claims brought by the State of California Department of Water Resources (DWR) and the so-called “export plaintiffs” (including CVP and SWP contractors, as well as the Coalition for a Sustainable Delta) separately from the claims brought by the San Joaquin River plaintiffs.  Below is a summary of the court’s holdings with respect to the claims by DWR and the export plaintiffs. The court ruled in the water users’ favor on the following claims:

• The National Marine Fisheries Service (NMFS) acted unlawfully by relying on unscaled data regarding salvage at the export facilities rather than scaling the data to the population size.  The court held that when trying to discern trends from salvage data, “an obvious ‘confounding variable’ is population size.”  It further explained that “[a] trend observed in data that is unscaled for population size may change or completely disappear when scaled for population size,” concluding that NMFS committed “a clear scientific error.”

• NMFS failed to provide a basis for its determination that the winter-run Chinook salmon is at “high risk” of extinction.  The court noted that the species does not meet the “high risk” definition set forth in an article by NMFS scientist Stephen Lindley and others, and that “it appears that the record does not support a high risk finding…”  The court characterized NMFS’s determination as “completely unsupported by the record, constituting ‘clear error.’”

• NMFS’s Orca jeopardy analysis is unlawful due to the agency’s failure to take into consider its Orca Salmon Harvest biological opinion, issued prior to the CVP and SWP biological opinion.  In the Orca Salmon Harvest biological opinion, NMFS determined that a reduction in the availability of salmon as a prey item for the Orca is not likely to jeopardize the species whereas, in the CVP and SWP biological opinion, NMFS determined that a reduction in the availability of salmon as a prey item for the Orca is likely to jeopardize the species.  The court held that on remand NMFS must explain how these determinations can be reconciled.

• The record does not support NMFS’s conclusion that CVP and SWP operations cause indirect mortality caused by exotic species, pollution, and food limitations.  For example, the court characterized the link between CVP and SWP operations, the presence of exotic species, and mortality of the listed species as “pure speculation.”

• 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 court held that, in violation of the Section 7 Consultation Handbook, NMFS failed to provide a thorough explanation of why this RPA component is essential to avoid jeopardy or adverse modification.  The court went on to state that fulfilling this obligation in this instance “is heightened in light of the weak (arguably equivocal) evidence support the imposition of any ratios at all.”

• 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, which are derived primarily from [Particle Tracking Model] simulations, a method that is indisputably an imperfect predictor of salmon behavior.”

• NMFS failed to provide any record 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 during the period November 1 to December 31.  The court noted that plaintiffs “raise serious questions related to the need to scale the triggers to the overall size of the salmonid populations they aim to protect.”

• NMFS failed to comply with the requirements of its own regulations when formulating the RPA by failing to determine whether the RPA is consistent with the purposes of the underlying action, whether the RPA is within the action agency’s legal authority and jurisdiction, and whether the components of the RPA are essential to avoid jeopardy or adverse modification.

• There is a lack of record support for NMFS’s position that certain actions at the SWP and CVP export facilities to reduce mortality of salmon, steelhead, and green sturgeon are feasible.

The court affirmed the federal agency’s jeopardy determination at the same time that it held that the biological opinion is arbitrary, capricious, and unlawful. It remanded the biological opinion to NMFS. Like the court’s earlier decision on the delta smelt Biological Opinion, this decision is likely to be appealed.