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Salmon Protections/Pumping Restrictions Decision of May 18, 2010

Salmon Protections/Pumping Restrictions Decision of May 18, 2010

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Published by: nytbayarea on Jun 03, 2010
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06/24/2010

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123456789101112131415161718192021222324252627281UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF CALIFORNIAThe Consolidated SalmonidCases1:09-cv-1053 OWW DLBFINDINGS OF FACT ANDCONCLUSIONS OF LAW RE:PLAINTIFFS’ REQUEST FORPRELIMINARY INJUNCTION(Docs. 161 & 230)I.
 
INTRODUCTIONPlaintiffs San Luis & Delta Mendota Water Authority(the “Authority”) and Westlands Water District(“Westlands”) (collectively “San Luis Plaintiffs”) seek aTemporary Restraining Order (“TRO”)
1
and a PreliminaryInjunction (“PI”) against the implementation ofReasonable and Prudent Alternative (“RPA”) Action IV.2.1set forth in the National Marine Fisheries Service’s(“NMFS”) June 4, 2009 Biological Opinion (“2009 SalmonidBiOp”), which addresses the impacts of the coordinatedoperations of the federal Central Valley Project (“CVP”)and State Water Project (“SWP”) on the Central Valleywinter-run and spring-run Chinook salmon, Central Valley
1
Plaintiffs’ request for a TRO against the imminentimplementation of Action IV.2.1, which took effect as of April 1,Doc. 233, was denied for the reasons stated in open court on therecord on March 31, 2010. Doc. 306. The denial of a TRO motion isnot dispositive of the merits of a related motion for preliminaryinjunction.
See Office of Personnel Management v. Am. Fed’n ofGov’t Employees
, 473 U.S. 1301, 1305 (1985).
Case 1:09-cv-01053-OWW-DLB Document 347 Filed 05/18/2010 Page 1 of 134
 
 123456789101112131415161718192021222324252627282steelhead, Southern Distinct Population Segment of GreenSturgeon, and Southern Resident Killer Whales (“ListedSpecies”). Both motions were filed February 22, 2010.Docs. 230, 233.Plaintiffs State Water Contractors, Stockton EastWater District, Oakdale Irrigation District, and SouthSan Joaquin Irrigation District, and Plaintiff-IntervenorCalifornia Department of Water Resources (“DWR”) filedstatements of non-opposition. Docs. 247, 248 & 251.Federal Defendants and Defendant-Intervenors opposed.Docs. 273 & 274.Additionally, San Luis Plaintiffs seek a PI againstthe implementation of Action IV.2.3 in the 2009 SalmonidBiOp. Doc. 164 (filed Jan. 27, 2010). Plaintiffs KernCounty Water Agency and Coalition for a Sustainable Deltajoined. Doc. 181. DWR filed a partial joinder in andstatement of non-opposition to the motion. Doc. 249.Federal Defendants and Defendant-Intervenors opposed.Docs. 273 & 274.The PI motions came on for evidentiary hearing andargument, in Courtroom 3 of the above-captioned Courtfrom March 30 through April 2, 2010. The parties wererepresented by counsel, as noted on the record in opencourt.
Case 1:09-cv-01053-OWW-DLB Document 347 Filed 05/18/2010 Page 2 of 134
 
 123456789101112131415161718192021222324252627283After consideration of the testimony of thewitnesses, the exhibits received in evidence, the writtenbriefs of the parties, oral arguments, and the parties’proposed findings of fact and conclusions of law, Docs.316 & 314, and disapprovals thereto, Docs. 320, 321 &336, the following findings of fact and conclusions oflaw concerning the motion for interim relief/preliminaryinjunction are entered.To the extent any finding of fact may be interpretedas a conclusion of law or any conclusion of law may beinterpreted as a finding of fact, it is so intended.II.
 
BACKGROUNDThe 2009 Salmonid BiOp found that planned coordinatedProject operations would jeopardize the continuedexistence of and/or adversely modify the critical habitatof several of the Listed Species.
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BiOp at 1-2. Asrequired by law, NMFS proposed a Reasonable and PrudentAlternative (“RPA”) that imposes a number of operatingrestrictions and other measures on the Projects. The RPAincluded numerous elements for §each of the variousproject divisions and associated stressors, which NMFSconcluded “must be implemented in its entirety to avoid
2
Jeopardy was found as to all of the covered species; adversehabitat modification was found as to the designated critical habitatof winter-run, spring-run, steelhead, and green sturgeon. BiOp at1-2.
Case 1:09-cv-01053-OWW-DLB Document 347 Filed 05/18/2010 Page 3 of 134

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