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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

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Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

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Violate the ESA, or NEPA? Federal Judge says agency's implementation of BiOp requires additional NEPA analysis

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CONSOLIDATED SALMONID CASES, No. 1:09-CV-1053 OWW DLB, 2010 WL 796772 (E.D.Cal. March 5, 2010).

KEITHINKING: In this Memorandum Decision re: Cross-Motions for Summary Judgment, U.S. District Judge Oliver Wanger, presiding over the ongoing disputes related to Delta smelt and salmonid protection in the Sacramento Delta, exposed an irreconcilable conflict between the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA).  The opinion concludes that when a federal agency actually implements a reasonable and prudent alternative, as recommended by NOAA Fisheries (or presumably the U.S. Fish & Wildlife Service too), the federal agency must complete an environmental assessment (or maybe an EIS) to comply with NEPA.  In other words, when an federal action agency completes the ESA consultation process, and gets the expert advice from NOAA or FWS as to what the ESA mandates to avoid jeopardizing the continued existence of a species, the federal agency faces a Hobson's choice: (A) comply with the BiOp (and the ESA) and implement the RPA, but do so immediately, in violation of the NEPA requirements (note: NEPA's evaluations of alternatives can't be done until the RPA actually exists), or (B) proceed without the necessary environmental review under NEPA, but violate the requirements of the ESA and continue the status quo that jeopardizes the species in the first place.  Given the choice, I'd violate NEPA too, and force the judge to enjoin me, rather than violating the ESA, and risking criminal penalty or species extinction.  But in the end, even though Judge Wanger held that NEPA was violated, he refused to issue an injunction, and RPA implementation is ongoing.  Preliminary injunction proceedings are scheduled for late March and early April, but as Judge Wanger further noted on the concluding page of his opinion: an injunction should not issue where "enjoining government action allegedly in violation of NEPA might actually jeopardize natural resources." Save Our Ecosystems, 747 F.2d 1240, 1250 n. 16 (9th Cir.1984).  

***

FACTUAL BACKGROUND: These consolidated cases all challenge the June 4, 2009 issuance of a biological opinion by the National Marine Fisheries Service (NMFS), finding that the coordinated operations of the federal Central Valley Project (CVP) and State Water Project (SWP) are likely to jeopardize the continued existence and adversely affect the critical habitat of certain salmonid and other species (2009 Salmonid BiOp), as well as the implementation of the terms of that BiOp by the United States Bureau of Reclamation (Reclamation). Because the 2009 Salmonid BiOp found that planned coordinated Project operations would jeopardize the continued existence of and/or adversely modify the critical habitat of several of the species, NMFS proposed a Reasonable and Prudent Alternative (RPA) that imposes a number of operating restrictions and other measures on the Projects. The RPA included numerous elements for each of the various project divisions and associated stressors, which NMFS concluded "must be implemented in its entirety to avoid jeopardy and adverse modification." Id. at 578. On June 4, 2009, Reclamation, which manages the CVP, informed NMFS that it "provisionally accepts the RPA while we carefully evaluate the 2009 Salmonid BiOp and the RPA."

ISSUE: Plaintiffs in all of the consolidated cases move for summary judgment, arguing that issuance and/or implementation of the BiOp/RPA is "major federal action" that will inflict harm on the human environment, and that NMFS and/or Reclamation should have, but did not conduct an environmental assessment (EA) or prepare an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA). Federal Defendants and Defendant-Intervenors oppose. Plaintiffs replied and submitted a supporting declaration. It is undisputed that no NEPA assessment or documentation was prepared by either NMFS or Reclamation in connection with the issuance, provisional adoption, and/or implementation of the 2009 Salmonid BiOp and RPA.

RULING: Plaintiffs' are entitled to summary judgment on their claim against Federal Defendants that Reclamation's provisional adoption and NMFS and Reclamation's implementation of the 2009 Salmonid BiOp and its RPA without preparing any NEPA documentation violated NEPA.

EXCERPT: Here, NMFS concedes that the RPA will materially reduce water exports by 5-7 percent, or approximately 330,000 AF.2009 Salmonid BiOp at 720. As with the Smelt NEPA Decision, that such reductions have the potential to significantly effect the human environment are beyond dispute. The smelt reductions have already caused such impacts...  This is not to say that such effects will definitely occur. Federal Defendants and Defendant Intervenors may dispute the magnitude of these effects and/or the causal connection between implementation of the 2009 Salmonid BiOp RPAs and the effects, but there can be no dispute that "there are substantial questions" about whether coordinated operation of the CVP and SWP under the RPAs "may cause significant degradation of the human environment." Native Ecosystems Council, 428 F.3d at 1239. No more is required to trigger NEPA. It was up to the agencies to take the required "hard look." They did not. Once they satisfy their NEPA obligations, the course of action ultimately undertaken is entitled to deference.