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In re Consolidated Salmonid Cases

ELR Citation: 41 ELR 20300
Nos. 1:09-CV-01053 et al., (E.D. Cal., 09/20/2011) (Wanger, J.)

A district court, in a 279-page opinion, held that NOAA-Fisheries' 2009 biological opinion (BiOp) and reasonable and prudent alternative (RPA) addressing Central Valley Project and State Water Project impacts on Chinook salmon, steelhead, green sturgeon, and Southern Resident killer whales are arbitrary and capricious under the ESA and APA. The BiOp discusses and prescribes RPAs to address many sources of harm, including adverse temperature conditions and blockages caused by dams on the Sacramento River. And the BiOp's jeopardy conclusion is lawful. But project operations negatively impact the listed species and adversely modify their critical habitat in various ways that remain incompletely described and quantified. Moreover, some of NOAA-Fisheries' analyses rely upon equivocal or bad science to impose RPA actions without clearly explaining or otherwise demonstrating why the specific measures imposed are essential to avoid jeopardy and/or adverse modification. Given the potential serious impacts of these measures, the agency must do more to comply with the law. The court, therefore, remanded the BiOp and RPA for further consideration.