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Smelt Protections/Pumping Restrictions Findings May 27, 2010

Smelt Protections/Pumping Restrictions Findings May 27, 2010

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123456789101112131415161718192021222324252627281UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF CALIFORNIAThe Consolidated Delta SmeltCases1:09-CV-00407 OWW DLB1:09-cv-00480-OWW-GSA1:09-cv-00422-OWW-GSA1:09-cv-00631-OWW-DLB1:09-cv-00892-OWW-DLBFINDINGS OF FACT ANDCONCLUSIONS OF LAW REPLAINTIFFS’ REQUEST FORPRELIMINARY INJUNCTIONAGAINST IMPLEMENTATIONOF RPA COMPONENT 2(a/k/a Action 3)(Doc.433)I.
 
INTRODUCTIONPlaintiffs, San Luis & Delta Mendota Water Authority(the “Authority”) and Westlands Water District(“Westlands”), move for a preliminary injunction (“PI”)against the implementation of Reasonable and PrudentAlternative (“RPA”) Component 2 set forth in the UnitedStates Fish and Wildlife Service’s (“FWS”) December 15,2008 Biological Opinion, which addresses the impacts ofthe coordinated operations of the federal Central ValleyProject (“CVP”) and State Water Project (“SWP”) on thethreatened delta smelt (
Hypomesus transpacificus
) (“2008
Case 1:09-cv-00407-OWW-DLB Document 704 Filed 05/27/2010 Page 1 of 126
 
 123456789101112131415161718192021222324252627282Smelt BiOp” or “BiOp”). Doc. 433.Plaintiffs State Water Contractors; MetropolitanWater District of Southern California; Kern County WaterAgency and Coalition for a Sustainable; Stewart & JasperOrchards, et al.; and the Family Farm Alliance join inthe motion. Docs. 449, 451 & 453. Plaintiff-IntervenorDepartment of Water Resources (“DWR”), the operator ofthe SWP, partially joins. Doc. 452.Federal Defendants and Defendant Intervenors opposed.Docs. 469, 473. Plaintiffs replied. Docs. 487, 491,495, 497 & 507. The motion came on for an evidentiaryhearing on April 2, 5, 6, and 7, 2010. Docs. 644, 652,653 & 654. The parties were represented by counsel, asnoted in the record.After 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, thefollowing findings of fact and conclusions of lawconcerning 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.
Case 1:09-cv-00407-OWW-DLB Document 704 Filed 05/27/2010 Page 2 of 126
 
 123456789101112131415161718192021222324252627283II.
 
BACKGROUNDThe 2008 Smelt BiOp, prepared pursuant to Section 7of the Endangered Species Act (“ESA”), 16 U.S.C. §1536(a)(2), concluded that “the coordinated operations ofthe CVP and SWP, as proposed, are likely to jeopardizethe continued existence of the delta smelt” and“adversely modify delta smelt critical habitat.” BiOp at276-78. As required by law, the BiOp includes an RPAdesigned to allow the projects to continue operatingwithout causing jeopardy to the species or adversemodification to its critical habitat.
Id
. at 279. TheRPA includes various operational components designed toreduce entrainment of smelt during critical times of theyear by controlling exports out of and water flows intothe Delta.
Id. at
279-85.Component 1 (Protection of the Adult Delta Smelt LifeStage) consists of two Actions related to Old and MiddleRiver (“OMR”) flows.
 
Action 1, which is designed to protect upmigratingdelta smelt, is triggered during low and highentrainment risk periods based on physical andbiological monitoring. Action 1 requires OMR flowsto be no more negative than -2,000 cubic feet persecond (“cfs”) on a 14-day average and no more
Case 1:09-cv-00407-OWW-DLB Document 704 Filed 05/27/2010 Page 3 of 126

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