INTRODUCTION

One of the most pervasive threats facing salmon in the Columbia and Snake River basins comes not from one of the four “H’s” most often associated with the decline of these anadromous fish, but from another less obvious “H”: Handwringing by federal agencies – the continuing practice of identifying measures necessary to protect and restore listed salmon but then, for a myriad of shifting reasons, failing to actually implement these measures. Uncorrected, this fifth “H” will surely cause the extinction of these species.

This motion for a preliminary injunction, or in the alternative for summary judgment and a permanent injunction, focuses on one key component of this fifth “H” – the failure of the Bureau of Reclamation (“BOR”) to consult with the National Marine Fisheries Service (“NMFS”) under section 7 of the Endangered Species Act (“ESA”), 16 U.S.C. § 1536, regarding the effects on listed salmonids of the BOR’s longstanding practice of delivering irrigation water from federal water projects in the Columbia and Snake basin to individuals and entities who are not entitled to receive this water, a practice innocuously known as “water spreading.” This practice has long been recognized as harmful to salmon because it deprives them of much needed water for instream flows. Indeed, in 1995 and several times since then, NMFS has stressed that federal agencies must take steps to increase flows in the Columbia and Snake Rivers, including halting water spreading. However, the federal agencies have consistently failed to carry out these measures, and have failed to discuss with NMFS the adverse impacts to protected salmon and steelhead from federal actions that deplete river flows.

In this memorandum, plaintiffs, Trout Unlimited, et al. (“TU”), provide the Court with a brief summary of information related to flow augmentation, as well as information about water spreading at BOR projects in the Columbia basin. TU also describes BOR’s failure to comply with its duties under section 7 of the ESA regarding the impacts of water spreading. Because TU is likely to prevail on its claim that BOR’s actions violate ESA section 7, and because the ESA requires injunctive relief to avoid harm to a listed species, see Tennessee Valley Auth. v. Hill, 437 U.S. 153, 174 (1978); National Wildlife Fed. v. Burlington Northern R.R., 23 F.3d 1508, 1510 (9th Cir. 1994), TU seeks a preliminary injunction against water spreading by BOR pending a final ruling on TU’s claim by the Court. Alternatively, TU seeks summary judgment on this claim and a permanent injunction against water spreading pending the completion of consultation on this issue between BOR and NMFS.

BACKGROUNd

Populations of chinook, sockeye, and coho salmon, and steelhead in the Columbia and Snake River basins have plummeted in recent decades. Since 1991, these dramatic drops of once-abundant species have prompted NMFS to list a dozen salmonid evolutionarily significant units (“ESUs”) in the Snake and Columbia River Basins as either endangered or threatened under the ESA.[1] During the course of their juvenile and adult migrations, these listed Columbia and Snake River salmon and steelhead move through hundreds of miles of intensively-managed river systems that include numerous artificial obstacles to successful migration and reproduction. One obstacle of critical importance to these species is the impact of federal water management on the quantity, timing and volume of flows in the mainstem rivers and their tributaries.

A. The Importance of Adequate River Flows for Listed Fish

Salmon and steelhead depend upon sufficient river flows and cold water temperatures to successfully complete their life cycle. See NMFS, Proposed Recovery Plan for Snake River Salmon (March, 1995) (“Draft Recovery Plan”) at V-2-17, Ex. 1 to Hasselman Decl. (“there is a direct relationship between juvenile fish survival and flow”); NMFS, “Basis for Flow Objectives for Operation of the Federal Columbia River Power System” (Feb. 1995) (Appendix F to Draft Recovery Plan) (“Basis for Flow Objectives”), Ex. 2 to Hasselman Decl. Among a host of adverse effects, insufficient flows cause juvenile salmon and steelhead to undergo physiological adaptations to salt-water prematurely; cause increased predation of juvenile salmon and steelhead because of greater exposure time to predators such as squawfish; cause juvenile salmon to reach slack-water reservoirs behind dams at a later point in the season when waters are warmer and predator activity increases; make adult salmon and steelhead migrations more difficult by reducing attraction flows; and increase river temperatures subjecting adult and juvenile salmon and steelhead to a higher risk of disease and death. See NMFS, Factors for Decline: A Supplement to the Notice of Determination for West Coast Steelhead Under the Endangered Species Act at 9-10 (1996) (“Steelhead Factors For Decline”), Ex. 3 to Hasselman Decl.; NMFS, Factors Contributing to the Decline of Chinook Salmon: An Addendum to the 1996 West Coast Steelhead Factors for Decline Report at 17 (1998) (“Chinook Factors for Decline”), Ex. 4 to Hasselman Decl.; NMFS, Biological Opinion on Operations of the Federal Columbia River Hydropower System and Juvenile Transportation System in 1995 and Future Years (“1995 FCRPS BiOp”) at 38, Ex. 5 to Hasselman Decl.; Supplemental Biological Opinion, Operation of the FCRPS (May 14, 1998) (“1998 Steelhead BiOp”) at III-2, Ex. 6 to Hasselman Decl. (low flows result in reduced survival of listed juvenile Upper Columbia River Steelhead); Designation of Critical Habitat for Snake River Salmon, 58 Fed. Reg. 68543, 68544 (Dec. 28, 1993); Designation of Critical Habitat for 19 Evolutionarily Significant Units of Salmon and Steelhead, 65 Fed. Reg. 7764, 7773 (Feb. 16, 2000).

In reviewing whether operations of the Columbia River hydrosystem jeopardize listed salmon or destroy their critical habitat, NMFS in 1995 relied heavily on its Draft Recovery Plan. See American Rivers v. NMFS, No. 96-384MA, Opinion and Order on Summary Judgment at 13 (D. Or. Apr. 3, 1997) (“Opinion and Order”), Ex. 7 to Hasselman Decl. (“A critical element incorporated into NMFS five factor [jeopardy] analysis is to what extent the proposed action and RPA are consistent with the draft recovery plan.”). The 1995 FCRPS BiOp thus states that NMFS will assess the jeopardy risk of proposed actions based, in part, on consistency with the Draft Plan, and, alternatively, on whether the action offers measures that reduce the risk to listed species as much or more than the Draft Recovery Plan. See 1995 FCRPS BiOp at 14.

For its part, the Draft Recovery Plan contains a number of measures designed to increase river flows in the basin. See Draft Recovery Plan at V-2-17 through 29. The Draft Recovery Plan designates virtually all of these measures as “priority one,” id. at Summary Table 4, which NMFS defines as an action required to help avoid extinction. See id. at I-10. In its 1995 FCRPS BiOp, NMFS determined that the proposed FCRPS operations would jeopardize listed fish species unless hydrosystem managers, including BOR, undertook various measures outlined in the BiOp’s reasonable and prudent alternative (“RPA”). 1995 FCRPS BiOp at 83-91. A set of measures to increase flows in the Columbia and Snake Rivers, largely identical to some of the measures set forth in the Draft Recovery Plan, was a cornerstone of NMFS’ RPA.[2] See 1995 FCRPS BiOp at 95-104; see also Draft Recovery Plan, at V-1-53 (emphasizing the importance of adequate flows and outlining steps federal agencies can take to achieve them); id. at 1-8 (measures to increase flows in the Snake and Columbia Rivers “should be implemented immediately to avoid extinction to Snake River salmon and prevent further degradation of Columbia basin health and declines in numerous other species”) (emphasis added); see also 1998 Steelhead BiOp at VI-2 (attaining 1995 flow objectives would only “partially mitigate the effects of federal water regulation and impoundments” on listed steelhead).

B. River Flow Conditions Have Failed to Meet the Flow Objectives of the 1995 FCRPS BiOp.

At the core of both the 1995 FCRPS BiOp and the Draft Recovery Plan flow augmentation measures are flow objectives that NMFS established for the mainstem Snake and Columbia Rivers. See 1995 FCRPS BiOp at 104; Draft Recovery Plan at V-2-22. NMFS stated that the target flows presented in the 1995 FCRPS BiOp were low estimates of flows that are likely to avoid high salmon mortality. See Basis for Flow Objectives, at 9-13. NMFS directed the agencies to “operate the FCRPS to meet the flows objectives” during the spring and summer salmon migration seasons. 1995 FCRPS BiOp at 95. In 1997, NMFS, in a separate BiOp, stated that since the development of the 1995 flow objectives, new information indicates “that increased flow is associated with increased juvenile survival, particularly for fall chinook, which migrate during the summer months.” NMFS, ESA Section 7 Consultation – Biological Opinion, Inland Land Inc., Columbia River (May 16, 1997) at 7, Ex. 8, Hasselman Decl. (“Inland BiOp”). In the Inland BiOp, NMFS concluded that proposed agricultural water withdrawals from the Columbia, at times when flow targets are not being met, would “jeopardize” listed fish. Id. at 14. In this BiOp, NMFS also confirmed that the summer flow objectives of the 1995 FCRPS BiOp are met only 26 percent of the time at McNary Dam and less than 15 percent of the time at Lower Granite. Id. at 9 (further noting that spring objectives are not met 28% of the time at McNary and 36% of the time at Lower Granite).[3]

The independent Fish Passage Center has reached similar conclusions every year since the flow targets took effect. The Center’s 1998 Annual Report concluded that 1998 spring flows “were not met on a weekly basis” at either McNary or Lower Granite Dams and that August flows at Lower Granite “were well below the target flow.”[4] Ex. 9, Hasselman Decl. at 7, 11. The report concluded that the seasonal average missed summer flow target at McNary Dam, and that “it became apparent during most recent years that additional augmentation volume is needed during the July through August period in average water years.” Id. at 14 (emphasis added). The Center’s 1997 Annual Report concluded that weekly flows fell short of the flow targets for the entire month of August at Lower Granite, and the second half of August at McNary. See 1997 Fish Passage Center Annual Report, at x, Ex. 10, Hasselman Decl.; see also id. at 3 (“Although there was sufficient water storage in the system during the critical month of August, the regulating agencies failed to succeed to manage flow targets on a weekly basis.”). A similar failure to meet flow targets occurred in 1996. See 1996 Fish Passage Center Annual Report at 25, Ex. 11, Hasselman Decl. (“for some periods during the [salmon] migration, the flows were below target levels.”); id. at 16 (seasonal average summer flows at Lower Granite failed to meet targets).[5]

A review of the federal agencies’ own flow measurements confirms that flow augmentation efforts have fallen well short of targets each year following adoption of the 1995 FCRPS BiOp. Exhibits A through D to the Second Hasselman Declaration, submitted herewith, list daily flows at McNary and Lower Granite Dams as measured by the U.S. Army Corps of Engineers during the spring and summer seasons between 1996 and 1999. Days on which flows fell short of the appropriate seasonal target are highlighted in grey. The data shows, for example, that measured flows fell short of the summer flow objectives at Lower Granite Dam on 67% of days in the summer season in 1999, 43% in 1998, 38% in 1997, and 69% in 1996. At McNary, summer flows fell short of the summer flow objectives on 23% of days in 1999, 76% in 1998, 27% in 1997, and 40% in 1996. Calculating weekly average flows from the daily data yields an equally bleak picture, as weekly average flows fall short of the flow targets regularly. See Exhibit E to Second Hasselman Decl. (weekly average flows).

These shortfalls are particularly troubling because several years since 1995 have been characterized by above average precipitation in the region. See, e.g., 1996 Fish Passage Center Annual Report at 1 (1996 precipitation in Columbia basin averaged 100-140%, resulting in “the highest run-off volume in recent history”); 1997 Annual Report, at x (“record high snowfall” during the winter 1996-97 resulting in “record high runoff volumes” in 1997); Memo from Dusica Jevremovic, Fish Passage Center, to Michelle DeHart (Jan 18, 2000) at 3 (“2000 FPC Memo”), Ex. 13, Hasselman Decl. (runoff volumes at Lower Granite for January-July period 143% of normal in 1996; 166% of normal in 1997; 105% of normal in 1998; and 120% of normal in 1999). In fact, after a record breaking water year in 1997, the Fish Passage Center expressed frustration that flows continued to fall far short of flow targets despite abundant water availability: “Fisheries managers have consistently recommended that flow targets be met on a weekly basis to afford adequate protection to endangered species migrating throughout the period. The 1997 water year presented the most favorable conditions to meet the weekly flow objective. However, in spite of the favorable condition the weekly flow objectives were not achieved in either the Snake or Columbia Rivers during most or all of August.” 1997 Annual Report at x.

As this Court noted in American Rivers v. NMFS, the timing of flow augmentation to meet the flow targets must take into account “the migratory needs of fish” and hence should be flexible. Opinion and Order at 27. However, a review of fish passage counts at dams confirms that significant smolt migration still occurs at times when flows are below the targets, often by large margins and for extended periods. The Fish Passage Center 1998 Annual Report made this particularly clear when it pointed out that “April [1998] flows were primarily below target. [From] April 20 through April 30, a period of significant fish passage at Lower Granite Dam, average flow was 78.5 kcfs, significantly below the target flow.” 1998 Annual Report at 10. Exhibits A through E to the Second Hasselman Declaration also compare daily and weekly fish passage counts with flow data, and reveal that significant smolt passage occurs during both spring and summer seasons during days and weeks when flows are below target.

In sum, the work of government agencies and independent scientists reveals that current flows in the Snake and Columbia River are inadequate to meet the needs of listed fish species. Absent substantial increases in the amounts of water devoted to fish flow augmentation, actual flows in the Columbia and Snake river will continue to fall short of the flow objectives set in 1995 by NMFS as the minimum necessary to avoid high mortality to listed fish.[6]

C. The FCRPS Agencies Have Failed to Take Steps to Improve River Flows.

The 1995 FCRPS BiOp focused substantial attention on various measures that the FCRPS agencies should undertake to meet the river flow objectives. See 1995 FCRPS BiOp at 95-104; Draft Recovery Plan, at V-2-17 to 29. These measures included securing additional storage for fish flow enhancement from space in Canadian storage reservoirs on the Columbia (which has never occurred), 1995 FCRPS BiOp at 100-101; providing additional stored water for flow augmentation from Brownlee Reservoir (which has never occurred), id. at 101; refining flood control rule curves to provide additional water for flow augmentation (which has never occurred), id. at 100; securing additional water for flow augmentation in the Snake River above the 427 thousand acre feet (“KAF”) already required (which has never occurred), id.; and drawing down the reservoir behind John Day Dam to minimum operating pool, which the BiOp characterized as the equivalent of providing an additional 3 million acre feet (“MAF”) of flow augmentation water from the upper Columbia River (which also has never occurred), id. at 113-114.

This is a remarkable history of failure to address river flow issues. Even so, this motion focuses not on these unimplemented actions that could add water to the rivers for the benefit of salmon, but on actions by BOR that continue to remove large quantities of water from the river system that would otherwise be available to benefit listed fish. While the 1995 FRCPS BiOp contained measures designed to increase the amount of water in the Columbia and Snake Rivers, it did not consider or analyze directly on-going federal actions that remove water from the basin. The BOR is the federal agency most directly responsible for water withdrawals in the river basins. It delivers over 30 million acre-feet of water each year to irrigators throughout the Columbia Basin above McNary Dam. Inland BiOp at 8.

However, the agency has never engaged directly or comprehensively in ESA section 7 consultation with NMFS regarding its irrigation deliveries from the Columbia River and its tributaries. Instead, BOR and NMFS have engaged in section 7 consultation only once on “interim” BOR project operations in the Snake River above Lower Granite Dam, resulting in the 1999 Snake BiOp. Remarkably, this BiOp concludes that despite the existence of a substantial risk that BOR will be unable to provide even the minimum 427 KAF of flow augmentation water in some years, project operations will not jeopardize listed fish or destroy or adversely modify critical habitat.[7] Significantly, neither the 1999 Snake BiOp, nor any other consultation between the BOR and NMFS, address the effects of water spreading by the BOR on listed salmon, even though the adverse effects of this practice and the need to implement measures to terminate water spreading have long been recognized. As explained more fully in the section that follows, water spreading removes a significant amount of water from the river system under circumstances where river flows are inadequate to protect listed salmon.

D. BOR’s Longstanding Delivery of Irrigation Water to Illegal Users.

This motion for a preliminary injunction, or in the alternative for summary judgment and a permanent injunction, focuses specifically on BOR’s delivery of water to irrigators not legally entitled to receive federal water. These deliveries can provide much-needed additional water for river flows in the short-term. Additionally, NMFS already has stated in very specific terms that these deliveries must end and that the water taken by them must be devoted to instream uses in order to avoid harm to listed salmon. Finally, even though BOR and NMFS may conduct or complete section 7 consultation on irrigation-related issues in the future, such consultation has not been completed to date, and, as importantly, it is unlikely that this process would approve continued water spreading. Accordingly, in this section TU describes more fully federal water deliveries to irrigators not entitled to receive such water.

Within the Columbia and Snake River systems, the largest consumptive use of water is agricultural irrigation. See Steelhead Factors for Decline, at 9-10. Water withdrawals for irrigation have drastically altered natural hydrological cycles by reducing flows in the Snake and Columbia River mainstems and their tributaries. See Inland BiOp, at ii, 8 (irrigation withdrawals in the Columbia basin amount to thirty-million acre feet annually, which is “nearly 40% of the average natural river flow in low flow years at McNary Dam during the irrigation season, which coincides with the salmon migration season”). NMFS has determined that water diversion is a factor in the present or threatened destruction, modification or curtailment of all of the listed species’ critical habitat. See Steelhead Factors for Decline, at 9-10; Chinook Factors for Decline, at 17, 69; see also 65 Fed. Reg. 7776 (Feb. 16, 2000); 58 Fed. Reg. 68545 (Dec. 28, 1993) (critical habitat designation for salmon and steelhead identifies irrigation of crops as an activity that affects listed salmonid’s habitat). BOR plays a central role in the region’s irrigation system. The agency stores, manages, and delivers large quantities of water for irrigation from 32 projects throughout the Snake and Columbia River basins.

Under law, only those lands classified as eligible may legally receive water developed at BOR projects. However, for many decades the BOR has delivered this “federal water” to irrigators who are not authorized to receive it, or who apply it to lands ineligible to receive federal water. Lands may lack authorization to receive water from projects constructed and managed by the BOR because of 1) legislative provisions authorizing the project, 2) water user’s contract provisions, 3) the statutory requirement that lands be classified by the BOR as irrigable, or 4) state law requirements. See Statement of BOR Commissioner Daniel Beard Before the Oversight and Investigations Subcommittee of the House Committee on Natural Resources, at 2 Ex. 15, Hasselman Decl.; State of Oregon, Testimony Before the House Committee on Natural Resources, at 3; Ex.16, Hasselman Decl.; see generally R. Benson & K. Priestley, Making A Wrong Thing Right: Ending the “Spread” of Reclamation Project Water, 9 J. Envtl. L. & Litig. 89 (1994).

BOR has long recognized that large tracts of ineligible lands in the Snake and Columbia River Basins illegally receive federal water. See U.S. BOR, Report of the Task Force on Land Classification and Equivalency, 3-4 (1983); Ex. 17 to Hasselman Decl. In 1985, an internal control review performed by the BOR on water spreading found that “irrigation of ineligible lands was a long-standing high risk issue for which monitoring and prevention policies appeared to be inadequate.” See U.S. DOI, Office of Inspector General, Irrigation of Ineligible Lands, BOR (Report No. 94-I-930) (1994) (“1994 Audit Report”) at 2, Ex. 18 to Hasselman Decl. citing BOR, Irrigation of Ineligible Land (Water Spreading) (1985). The 1985 review stated that water spreading created federal liability risks due to competition with environmental needs. Id.

By 1994, BOR’s continued failure to address the ongoing problem of water spreading prompted an internal investigation by the Department of Interior’s Office of Inspector General (“OIG”). See 1994 Audit Report. The OIG’s Audit Report outlined in the bluntest terms how BOR had failed to deal with illegal water deliveries, in spite of numerous past studies and repeated characterizations of the problem by the agency as a high priority. See, e.g., id. at 2 (concluding that BOR has not performed a follow up review of 1985 study and that “essentially the same conditions” existed at the time of the audit as in 1985). In a letter to the Secretary of the Interior attached to the report, the Acting Inspector General found that:

the Bureau of Reclamation had not taken actions necessary to ensure that Federal project water was used to irrigate only lands determined to be suitable for irrigation and eligible to receive water under Federal law. As a result, lands the Bureau identified as ineligible to receive Federal water were being irrigated from at least 24 projects in eight states despite the existence of competing needs for water. In this regard, we found that the majority of the water delivered to ineligible lands could have been used to enhance stream flows for declining fisheries or to reduce potentially toxic irrigation damage. In addition, those who irrigated ineligible lands from 1984 to 1992 received unintended financial benefits of between $37 million and $46 million because they did not pay the Government’s full cost of providing the water as defined by the Congress in the Reclamation Reform Act of 1982.

See id. (cover letter).

While the report was national in scope, it described substantial quantities of water from projects on the Columbia and Snake and their tributaries that were delivered for unauthorized irrigation use. Specifically, the audit determined that the BOR delivered to ineligible lands approximately 295,380 acre-feet of water from just twelve of the BOR’s 32 projects in the Snake and Columbia River basins. Id. at 13.[8] For each of these projects, the report determined that the illegally diverted water could have been devoted to protected species, Indian fisheries, or Indian water rights if it had remained instream. For example, the report identified between 42,000 and 53,000 acres of land irrigated illegally using withdrawals from a single BOR project on the Columbia River, noting that these withdrawals “could have been used to provide increased stream flows for salmon migration,” a need that was particularly acute, the report emphasized, in light of recent ESA listings of Columbia River anadromous fish. Id. at 8 (discussing Columbia Basin Project).

The report set out several recommendations to BOR for identifying ineligible lands and addressing unauthorized water delivery. BOR Commissioner Daniel Beard concurred in the report’s conclusions and recommendations, and explicitly committed the agency to implementing these recommendations by specific dates. Id. at 9-10; see also Memo to Regional Directors from Acting BOR Commissioner, Irrigation of Ineligible Lands (May 17, 1985), Ex. 20 to Hasselman Decl. (outlining management plan to resolve water spreading crisis).

NMFS also highlighted the problem of water spreading in the basin – and the potential for substantial increases in chronically low instream flows that would result from ending it – in its 1995 Draft Recovery Plan for Snake River salmon. The Draft Recovery Plan stated that “by April 1996, the BOR and state water resources departments should identify and halt all instances of water spreading on Reclamation projects” and that “[t]his water should be made available for instream uses.” Draft Recovery Plan, at V-2-26; see also id. at V-1-53 (governments must ensure that streamflow diversions are not in excess of legal water rights). NMFS considered a halt to water spreading a “Priority 1” action, id. at Summary Table 4, which it defined as an action required to help avoid extinction. See id. at I-10. In the 1995 FCRPS BiOp, NMFS incorporated the provisions of this Draft Recovery Plan into its jeopardy standard for FCRPS operations, noting that recovery plans set forth the “best evidence” of the measures necessary to ensure that the listed species are not jeopardized. 1995 FCRPS BiOp at 13-14.

Concerns about illegal water use from BOR projects ultimately prompted a Congressional committee to convene oversight hearings on the problem. Water Use Practices on Bureau of Reclamation Projects, Serial No. 103-101, Committee on Natural Resources (Hearing held July 19, 1994), Ex. 21 to Hasselman Decl. (cover page and table of contents). Tribal and environmental representatives offered substantial information to the Committee regarding water spreading’s contribution to low flows and declining salmon runs. For example, Antone Minthorn, Chairman of the General Council of the Umatilla Tribe, spoke bluntly about these impacts: “Water spreading and other violations of federal water laws have devastated our culture, religion and economy,” and undermined efforts to restore salmon fishing guaranteed by treaty to the Umatilla Tribe. Statement of Antone Minthorn, at 60, Ex. 22 to Hasselman Decl. The Umatilla Tribe’s water spreading policy, submitted to the committee, was particularly frank:

Not only have our Treaty rights been ignored, but irrigators have been taking additional water illegally. When Indians fish illegally, we are sent to federal prison. When irrigators kill fish by illegally taking water, they are not punished. Instead, we are told by the United States Government that we must consider the impacts to irrigation economy of making them stop their illegal activity.

See Confederated Tribes of the Umatilla Indian Reservation, Water Spreading Policy, March 2, 1994, Ex. 23 to Hasselman Decl. BOR Commissioner Beard also spoke forcefully in favor of identifying and halting water spreading. Referring to the Inspector General report described above, Commissioner Beard testified that:

[T]he findings of the Inspector General and of our own previous studies could provide significant evidence or fodder for dozens of lawsuits, many of which maybe have substantial prospects for success. My feeling is that unless we act now to enforce the law and the contracts and address this problem head on, the administration of the entire program is going to be turned over to the Federal Courts.

See Beard Testimony (emphasis added). Beard emphasized again and again that he was “committed” to ending the practice of water spreading. Id. at 34.

Despite such high level attention and repeated promises, BOR’s proposal in 1994 to address water spreading caused such an outcry among irrigators that the agency withdrew it. See Declaration of Reed Benson at ¶ 5; see also Critics Rap Illegal Use of Water, Portland Oregonian (July 21, 1995) at C11; Ex. 24 to Hasselman Decl. (“The [BOR] moved twice last year to address the problems outlined in the [Inspector General’s] report, but backed off both times in the face of pressure from farm groups and politicians.”). BOR Commissioner Beard, who had focused substantial energy on the problem, resigned soon thereafter. See Federal Water Chief, Who Turned Tide To Conservation, Resigns, Portland Oregonian (June 13, 1995) at A01; Ex. 25 to Hasselman Decl. (describing environmentalists’ disappointment with Beard for “backing away from firm stands” to prevent water spreading). A BOR-convened task force on water spreading, which included tribal, environmental, agricultural and state representatives, was disbanded in 1995 by the BOR. See Declaration of Reed Benson. Although the agency promised task force members that it would propose national rules to address water spreading, it has never done so, nor has it reconvened the task force. Id.

In sum, despite BOR’s repeated acknowledgement of the impacts of water spreading on stream flows and salmon, despite promises to address the problem quickly, despite repeated demands to halt the practice from the DOI leadership and NMFS, despite low flows in tributaries with BOR projects, and despite the continued failure of the FCRPS agencies to meet flow targets in the Snake and Columbia Rivers, TU is not aware of any steps that BOR has taken, including those called for in the Draft Recovery Plan and the Inspector General’s report, to address the problem of water spreading. Based on the available information, water spreading continues today largely as it has for years.

E. NMFS’ 1999 Snake River BiOp.

In 1999, NMFS issued a biological opinion for operation and maintenance of BOR’s Snake River projects above Lower Granite Dam. Agriculture irrigated with federal water from BOR’s Snake River operations covers over 1.58 million acres of the Snake River basin. See 1999 Snake BiOp at 33. The 1999 Snake BiOp focuses on BOR’s compliance with the terms of the RPA outlined in the 1995 FCRPS BiOp, but does so almost exclusively in terms of BOR’s efforts to provide the minimum 427,000 acre-feet of flow augmentation water in the Snake River required by the 1995 Opinion. The 1999 Snake BiOp thus describes only how BOR has been able to deliver this 427,000 acre-feet annually since 1995 for fish flow augmentation in the Snake River, pursuant to the 1995 FCRPS BiOp as a minimum level of flow augmentation. But see 1995 FCRPS BiOp at 99 (agencies shall secure “additional” water beyond 427,000 acre-feet in order to avoid harm to fish). The 1999 Snake BiOp describes the agency’s view of institutional and legal hurdles to securing effectively even this limited quantity of flow augmentation water, let alone additional water, and concludes that BOR will not be able ensure delivery of even the minimum 427,000 acre-feet volume in all years. Id. at 16. Remarkably, the biological opinion makes a no jeopardy finding for BOR project operations.

In a section consisting of just four sentences, NMFS also considers and dismisses the impacts on flows in the upper Snake River caused by water spreading. Id. at 25. NMFS states flatly that “[t]he scale of water spreading at [BOR’s] projects covered by this Opinion is unknown.” The BiOp does not mention the 1994 BOR Audit Report, which concluded that water spreading from just six of the eleven BOR projects in the Upper Snake River basin annually accounted for 85,763 acre-feet of water.[9] 1994 Audit Report at 13. For each of these six projects, the 1994 Audit Report also concludes that if the water had been left instream it could have been devoted to protected species. Id. Nonetheless, the BiOp reaches the conclusion that “the scale of water spreading is sufficiently small that it does not adversely affect [BOR’s] ability to supply the current program needs [i.e. the minimum 427,000 acre-feet annually].” 1999 Snake BiOp at 25.[10] These brief sentences are the only discussion of which TU is aware of the effects of water spreading in a biological opinion for BOR actions affecting listed Snake and Columbia River salmon.

STANDARD OF REVIEW

In ruling on a motion for a preliminary injunction, the Court must consider plaintiffs’ likelihood of success on the merits and whether the balance of irreparable harm and the public interest favor issuance of the injunction. Caribbean Marine Servs. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988). A party is entitled to a preliminary injunction by demonstrating either: (1) a combination of probable success on the merits and the possibility of irreparable harm; or (2) that serious questions are raised and the balance of harm tips sharply in its favor. Chalk v. U.S. District Court, 840 F.2d 701, 704 (9th Cir. 1988). In cases alleging a violation of the Endangered Species Act, once plaintiffs have shown a probable violation of the law, the balance of harms and the public interest require issuance of an injunction. See TVA v. Hill, 437 U.S. at 174; National Wildlife Fed. v. Burlington Northern R.R., 23 F.3d 1508, 1510 (9th Cir. 1994); Sierra Club v. Marsh, 816 F.3d 1376, 1382-83 (9th Cir. 1987).

Alternatively, this Court may convert this motion for a preliminary injunction to a motion for summary judgment and a permanent injunction pursuant to Fed. R. Civ. P. 65(a)(2). See Airline Pilots Assoc. v. Alaska Airlines, 989 F.2d 1393, 1397 n.4 (9th Cir. 1990). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. Once plaintiffs have shown a violation of the ESA on a summary judgment motion, a permanent injunction prohibiting the challenged activity must follow. See Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1056-1057 (9th Cir. 1994).

ARGUMENT

I. Congress Designed Section 7 of the Endangered Species Act to Protect Listed Species And Critical Habitat From Potentially Harmful Actions.

The Endangered Species Act of 1973 (ESA), 16 U.S.C. § 1531 et seq., is “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” TVA v. Hill, 437 U.S. at 180. A review by the Supreme Court of the Act's “language, history, and structure” convinced the Court “beyond doubt” that “Congress intended endangered species to be afforded the highest of priorities.” Id. at 174. “The plain intent of Congress in enacting [the ESA] was to halt and reverse the trend toward species extinction, whatever the cost.” Id. at 184. To accomplish this purpose, the ESA includes both substantive and procedural provisions that, together, are designed to protect and recover threatened and endangered species.

For federal actions, the heart of the ESA’s substantive protection for species and their habitat is section 7(a)(2), which requires that every federal agency insure that its actions are not likely to jeopardize a listed species or destroy or adversely modify its critical habitat. 16 U.S.C. § 1536(a)(2). Congress designed the procedural consultation provisions of the ESA to ensure compliance with these substantive duties. As the Ninth Circuit has noted,

[T]he strict substantive provisions of the ESA justify more stringent enforcement of its procedural requirements, because the procedural requirements are designed to ensure compliance with the substantive provisions . . . If a project is allowed to proceed without substantial compliance with those procedural requirements, there can be no assurance that a violations of the ESA’s substantive provisions will not result. The latter is, of course, impermissible.

Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir. 1985). Compliance with the procedural provisions of the ESA – making the systematic determination of the effects of anticipated federal agency actions through the consultation process – is thus integral to compliance with the substantive requirements of the Act.

The formal consultation process commences when a federal agency determines that a proposed federal action “may affect listed species or critical habitat,” 50 C.F.R. § 402.14(a), and concludes when the expert agency issues a biological opinion determining whether the proposed action is likely to jeopardize a listed species or destroy or adversely modify its critical habitat. 16 U.S.C. § 1536(b)(3)(A); see also, 50 C.F.R. § 402.14(g) (responsibilities of expert agency during formal consultation); 50 C.F.R. § 402.14(h) (contents of biological opinion). Under this statutory framework, federal actions that may affect a listed species or critical habitat may not proceed unless and until the federal agency insures, through completion of the consultation process, that the action is not likely to cause jeopardy or adverse modification. 16 U.S.C. § 1536(a); 50 C.F.R. §§ 402.14, 402.13; Conner v. Burford, 848 F.2d 1441, 1455 (9th Cir. 1988). Prior to initiating section 7 consultation on an action that may affect listed species, a federal agency may not take any steps involved in the action. See Pacific Rivers Council, 30 F.3d at 1056.[11]

II. TROUT UNLIMITED is entitled to a preliminary injunction because IT IS LIKELY TO SUCCEED ON THE MERITS of its claim that bor is violating THE ESA.

In this motion, TU seeks a preliminary injunction based on the likely success of its claim that BOR’s continued delivery of federal water to unauthorized users in the absence of consultation with NMFS violates section 7 of the ESA. Since defendant BOR’s delivery of federal water for the irrigation of ineligible lands is a federal action that “may affect” listed fish species, BOR must consult with NMFS before proceeding with these deliveries. Given BOR’s failure to even initiate such consultation, this Court should grant TU’s request for interim relief because under the ESA such a statutory violation requires corrective action. In any event, abundant information demonstrates the adverse impacts to threatened and endangered salmon of continued water spreading.

A. Delivery of Water to Unauthorized Users is a Federal Agency Action.

Federal regulations define “agency action” for ESA consultation purposes as:

[A]ll activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies . . Examples include, but are not limited to... (d) actions directly or indirectly causing modifications to the land, water, or air.

50 C.F.R. § 402.02. The Ninth Circuit broadly defines the term “agency action.” NRDC v. Houston, 146 F.3d 1118, 1126 (9th Cir. 1997) citing TVA v. Hill, 437 U.S. at 173; see also Pacific Rivers Council, 30 F.3d 1055 (“Following the Supreme Court’s lead in TVA, we have construed agency action broadly.”) The term includes ongoing agency action over which a federal agency retains some discretion or control. Pacific Rivers Council, 30 F.3d at 1053-56.

BOR’s delivery of water to irrigators is an agency action subject to Section 7’s consultation requirements. See Houston, 146 F.3d at 1126. In Houston, the Ninth Circuit concluded that BOR’s renewal of irrigation water delivery contracts, where the agency retained the discretion to modify the contracts, constituted agency “action” under the ESA. As a result, BOR’s failure to consult with NMFS on the impacts to salmon of renewing those water delivery contracts justified recission of the contracts until consultation had been completed. Id. at 1133. Under Houston, BOR’s continued delivery of federal water to users outside the authority of a contract or federal law is a fortiori a “federal action” within the meaning of the ESA.

The regulatory definition of “federal action” leads to the same conclusion. For example, by diverting much needed water from instream flows to agriculture, water spreading “directly or indirectly caus[es] modifications” to the Columbia and Snake Rivers and their tributaries. 50 C.F.R. § 402.02. Indeed, as described above, NMFS and the Department of Interior have repeatedly described – and decried – the impacts to listed fish caused by the BOR’s continued participation in water spreading. See supra section D. In responding to the 1994 Audit Report, the BOR committed itself to resolving the problem, indicating that the agency has the authority, ability, and the obligation to halt the practice, see 1994 Audit Report at 16-17, yet the agency has neither consulted with NMFS about continuation of the practice nor halted it.

B. Water Spreading “May Affect” Listed Species.

Under ESA § 7(a)(2), the only determination that an action agency can conclusively make by itself is whether an action “may affect” or will have “no affect” on a listed species. Wherever an agency determines that an action “may affect” listed species, ESA consultation is mandatory. 50 C.F.R. § 402.13-14; Houston, 146 F.3d at 1126.

BOR’s delivery of irrigation water to users ineligible to receive such water clearly “may affect” listed salmon and steelhead in the Columbia and Snake basins. As described above, the impact of low flows on listed fish – and the contribution of water spreading to these low flows – is both significant and well documented. See supra sections A-D. The 1994 Audit Report identified almost 300,000 acre-feet of water from only a handful of BOR projects in the Columbia and Snake basins that were being used illegally, and concluded that much of this water could be devoted to increasing inadequate instream flows to meet the needs of imperiled fish. See 1994 Audit Report at 13. NMFS’ Draft Recovery Plan for Snake River salmon identified an end to water spreading as a top priority task necessary to avoid extinction of listed Snake River salmon. See Draft Recovery Plan at V-2-26. NMFS reaffirmed the Draft Recovery Plan’s directives by incorporating consistency with the plan into the jeopardy standard in the 1995 FCRPS BiOp, and indicating that recovery plans represent the “best science” on species needs. See 1995 FCRPS BiOp at 13-14. Thus, both BOR and NMFS recognize that water spreading “may affect” listed salmonids.

C. BOR Has Never Consulted on the Impacts of Water Spreading.

Although BOR’s water deliveries to unauthorized users is a federal action that “may affect” listed fish, no consultation with NMFS on the full scope of this action has ever taken place. No federal agency has consulted with NMFS on the impacts of federal water deliveries to agricultural users generally in any comprehensive manner. On occasion, federal agencies have consulted on federal involvement in a single diversion, such as the consultation resulting in the Inland BiOp described above. Given that consultation on water deliveries and permits for legitimate agricultural operations is spotty at best, it should come as no surprise that BOR has never consulted with NMFS on the impacts to listed fish of water spreading. Despite the emphasis on water spreading in the Draft Recovery Plan, water spreading is not mentioned at any point in the 1995 FCRPS BiOp, or its 1998 and 2000 supplements for newly listed species. Similarly, the biological assessment submitted to NMFS by the FCRPS agencies to initiate consultation on a new long-term biological opinion for FCRPS operations, anticipated this summer, is also silent on the issue.

To the extent BOR argues in response to this motion that the 1999 Snake BiOp sanctioned water spreading and fulfilled its consultation obligations, that argument must fail for at least two reasons. First, the BiOp covers only BOR operations upstream of the Lower Granite Dam in the Snake River basin, omitting water spreading elsewhere throughout the Columbia basin. Additionally, and perhaps more importantly, the 1999 Snake BiOp’s discussion of water spreading is wholly inadequate. The discussion of water spreading in the 1999 Snake BiOp consists of a total of four sentences, which read as follows:

Water spreading is the application of USBR project water to lands outside the boundary of the associated irrigation district. By irrigating additional acreage water spreading directly increases the consumption of project water, diminishing the water available for other users and purposes, including instream flows. The scale of water spreading at USBR’s projects covered by this Opinion is unknown. However, given that since 1995 sufficient water has been consigned to Idaho’s water rental pools to meet the needs of the salmon flow augmentation program, it appears that the scale of water spreading is sufficiently small that it does not adversely affect USBR’s ability to supply the current program needs.

1999 Snake BiOp at 35. This brief discussion of such a critical management problem, and NMFS’ conclusion that it can be ignored rather than be subject to actual consultation, is unsupported by the evidence and irrational.

In the 1999 Snake BiOp, NMFS acknowledges that its does not know how much water in the upper Snake River is being lost to water spreading but nonetheless concludes that water spreading does not adversely affect BOR’s ability to “supply the current program needs.”[12] Id. at 35. This conclusion is irrational on its face for two reasons. First, it is flatly inconsistent with NMFS’ assertion in the same document that institutional and physical constraints will inhibit BOR from consistently providing even the minimum 427,000 acre-feet of flow augmentation required by the 1995 FCRPS BiOp. See id. at 16 (“It is not possible for [BOR] to ensure delivery of the entire 427 KAF of salmon flow augmentation water in all years”); id. at 9 n.6 (“NMFS is fully aware that [BOR] may be unable to provide 427 KAF of water annually in all years”). NMFS fails to square its conclusion that BOR will fall short of its obligation to devote 427 KAF to flow augmentation with its assertion that water spreading does not have an affect on BOR’s ability to “meet program needs,” particularly in light of existing data that indicates that water spreading results in the withdraw of tens of thousands of acre-feet per year from the Snake that should be devoted to flow augmentation. This failure is compounded by the BiOp’s silence on the issue of flow targets: nowhere does the BiOp quantify actual flows at Lower Granite Dam, or disclose how egregiously they have fallen short of the objectives.

Second, the 1999 Snake BiOp represents a drastic departure from the RPA and jeopardy analysis of the 1995 FCRPS BiOp that is neither explained nor supported by any relevant evidence. See Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 42 (1983). The RPA of the 1995 FCRPS BiOp stated that BOR must at a minimum devote 427,000 acre-feet to flow augmentation in the Upper Snake basin. 1995 FCRPS BiOp at 99. The RPA further stated that BOR “shall subsequently secure an additional amount of water . . . to further reduce human-caused mortality of endangered salmon in the Snake River.” Id. (emphasis added). The BiOp’s standard for determining whether flow augmentation has reduced high human-caused mortality is compliance with the flow objectives. See Basis for Flow Objectives, at 9-13. Although this Court concluded that the 1995 FCRPS BiOp did not “require” that the flow objectives be met at all times, it found that the agencies must make “every effort” to meet them, or reinitiate consultation. Opinion and Order at 27. In the 1999 Snake BiOp, however, NMFS concluded that BOR’s Upper Snake River operations would not jeopardize listed fish even though BOR: a) apparently will not be able to supply any “additional water” above the 427,000 acre-feet, as called for by the 1995 FCRPS BiOp; b) will even fall short of providing the 427,000 acre-feet minimum in some years; and c) flows in the Columbia and Snake Rivers consistently continue to fall short of flow targets. See 1999 Snake BiOp at 16; supra section B. In the 1999 Snake BiOp, NMFS does not explain this departure from the RPA in the 1995 FCRPS BiOp, or support it with any evidence or new analysis. Moreover, the 1999 Snake BiOp’s statement about water spreading ignores NMFS’ own jeopardy standard as outlined in the 1995 FCRPS BiOp. Under that standard, jeopardy is determined, in part, based on consistency with the Draft Recovery Plan, which in turn specifically calls for BOR to halt water spreading in the Snake basin. These departures from prior standards and analysis are unsupported and unexplained, and hence arbitrary and capricious.[13] See, e.g., Motor Vehicles, 463 U.S. at 42 (“an agency changing its course . . . is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.”); id. at 57 ("An agency's view of what is in the public's interest may change, either with or without a change in circumstances . . . [b]ut an agency changing its course must supply a reasoned analysis.”) (emphasis added).

III. TROUT UNLIMITED is entitled to a preliminary injunction because THE BALANCE OF HARMS tips in its favor

In cases involving violations of the Endangered Species Act, Congress has foreclosed the traditional exercise of equitable discretion. TVA v. Hill, 437 U.S. at 173, 193-95; Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1073 (9th Cir. 1996). Once a violation of the Endangered Species Act is likely or has been established, as is the case here, the balance of hardships and the public interest require an injunction. TVA, 437 U.S. at 187-88; Marbled Murrelet, 83 F.3d at 1073. “Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities, thereby adopting a policy which it described as ‘institutionalized caution.’” Sierra Club v. Marsh, 816 F.2d at 1383 citing TVA, 437 U.S. at 194.

To reflect the “institutionalized caution” embodied by the Act, the burden on plaintiffs to demonstrate that an injunction under the ESA is warranted is very low. To merit an injunction, plaintiffs need show only that a violation of the ESA has occurred. In Thomas v. Peterson, the Ninth Circuit held:

The Forest Service would require the district court, absent proof by the plaintiffs to the contrary, to make a finding that the . . . road is not likely to effect the [listed species], and that therefore any failure to comply with ESA procedures is harmless. This is not a finding appropriate to the district court at the present time. Congress has assigned to the agencies and to the Fish & Wildlife Service the responsibility for evaluation of the impact of agency actions on endangered species, and has prescribed procedures for such evaluation. Only by following the procedures can proper evaluations be made. It is not the responsibility of the plaintiffs to prove, nor the function of the courts to judge, the effect of a proposed action on an endangered species when proper procedures have not been followed. We therefore hold that the district court erred in declining to enjoin construction of the . . . road pending compliance with the ESA.

753 F.2d at 765 (citations omitted) (emphasis added). Thus, the Ninth Circuit has not hesitated to enjoin agency actions pending completion of section 7 consultation once plaintiffs have demonstrated that Section 7 procedures were not followed. See, e.g., Conner, 848 F.2d at 1453-54 (enjoining oil and gas lease sales because biological opinion did not cover all of anticipated harms resulting from lease); Thomas v. Peterson, 753 F.2d at 765 (enjoining construction of a road because ESA procedures had been ignored; plaintiffs not required to show that road would cause harm to listed species).

Conner and Thomas make clear that it is only by “tak[ing] a look at all the possible ramifications of the agency action,” that agencies are able to make reasoned judgments about the effects of their actions. Conner, 848 F.2d at 1453; see also Thomas, 753 F.2d at 765. Where an agency has not completed this process, knowledge about the effects of the action on listed species and critical habitat is necessarily incomplete and the risk of uncertainty is borne by the species. This result is unacceptable under the ESA. TVA v. Hill, 437 U.S. at 174.

Here, while TU’s burden to show harm to listed salmonids from BOR’s action is low, in this memorandum, TU has demonstrated that low flows are a grave problem in the Columbia and Snake River basins, and that water spreading removes significant quantities of water that could be used to augment flows in these basins. BOR’s continued delivery of critically important water for water spreading in this situation poses a serious risk of harm and warrants an injunction. Even if the federal defendants now argue that, in their view, water spreading does not harm fish, the law does not allow the species to bear the risk of an action that may effect them while a proper determination of the likelihood of harm is made through the section 7 process.

The balance of irreparable harm and the public interest thus favor prompt issuance of a preliminary injunction ordering BOR to immediately halt water spreading.

IV. In the alternative, plaintiffs are entitled to a ruling on summary judgment and a permanent injunction.

Pursuant to Fed. R. Civ. P. 65(a)(2), this Court can consolidate this motion for a preliminary injunction with a determination on the merits. See Airline Pilots Assoc. v. Alaska Airlines, 989 F.2d at 1397 n.4 (“A district court might also convert a decision on a preliminary injunction into a final disposition of the merits by granting summary judgment on the basis of the factual record available at the preliminary injunction stage.”) Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. Here, there is no dispute that water spreading is a federal action that “may affect” a listed species and that no consultation on this action has occurred. Plaintiffs are therefore entitled to a ruling that BOR is in violation of Section 7(a)(2) of the ESA, and a permanent injunction prohibiting further water spreading until BOR has either identified and halted water spreading in the Columbia Basin or has satisfactorily completed consultation.

CONCLUSION

For the foregoing reasons, TU respectfully requests the Court to grant it a preliminary injunction against water spreading by the BOR pending a final resolution of TU’s claim or, in the alternative, summary judgment and a permanent injunction against water spreading pending the completion of consultation between the BOR and NMFS regarding this action as required by section 7 of the ESA.

Respectfully submitted this 18^th day of May, 2000.

Respectfully submitted,

TODD D. TRUE (WSB #12864)

JAN E. HASSELMAN (WSB #29107)

Earthjustice Legal Defense Fund

705 Second Avenue, Suite 203

Seattle, WA 98104

(206) 343-7340

(206) 343-1526 [FAX]

ttrue@earthjustice.org

jhasselman@earthjustice.org

DANIEL J. ROHLF (OSB #99006)

Pacific Environmental Advocacy Center

10015 S.W. Terwilliger Boulevard

Portland, OR 97219

(503) 768-6707

(503) 768-6642 [FAX]

rohlf@lclark.edu

Attorneys for Plaintiffs

[1] These include Snake River sockeye (endangered), Snake River spring/summer and fall chinook (threatened), Upper Columbia River spring-run chinook (endangered), Lower Columbia River chinook (threatened), Upper Columbia River steelhead (endangered), mid-Columbia steelhead (threatened), Lower Columbia steelhead (threatened), Snake River steelhead (threatened), and Columbia Chum (threatened); Upper Willamette River chinook (threatened); Upper Williamette River steelhead (threatened).

[2] The 1995 FCRPS BiOp, the validity of which was challenged by some of the parties to this action in this Court, has been supplemented three times since it was issued in March of 1995. Two of these supplements, the 1998 Steelhead BiOp and the Suppmental Biological Opinion for Operation of the FCRPS (Feb. 4, 2000) (“2000 FCRPS BiOp”), cover newly listed species. A third, entitled Biological Opinion: Bureau of Reclamation Operations and Maintenance of its Projects in the Snake River Basin Above Lower Granite Dam (“1999 Snake BiOp”), reviews BOR’s compliance with the 1995 FCRPS BiOp’s provisions regarding flow augmentation from projects in the Snake River basin upstream from Lower Granite Dam. A complete copy of the 1999 Snake BiOp is attached as Exhibit B to the Declaration of Todd True, submitted in support of Plaintiffs’ Opposition to Federal Defendants’ Motion for a Protective Order and Stay.

[3] In the American Rivers v. NMFS litigation on the 1995 FCRPS BiOp, this Court concluded that the flow objectives in the BiOp were targets rather than fixed minimums. However, the Court also noted that “[i]n light of the RPA and incidental take statements reliance upon these targets, the action agencies must make every effort to meet these targets or else face potential reinitiation of consultations should their efforts fall so short of BiOp compliance as to result in an effect on the listed species not considered in the BiOp.” Opinion and Order at 27.

[4] The Center has not yet completed its 1999 Annual Report.

[5] The most recent data available for 2000 flows gives little hope that the situation will change. In the most recent weekly report prior to the filing of this motion, the Fish Passage Center concluded that the agencies had failed to meet flow targets at Lower Granite Dam for the prior two weeks. See Fish Passage Center, Weekly Report #00-10 (May 12, 2000) at 2, Ex. 12 to Hasselman Decl.

[6] Independent studies confirm that significant additional augmentation water will be required if flows are to reach flow targets more consistently. See, e.g., 2000 FPC Memo (estimating that as much as 1.5 million acre-feet in flow augmentation in the upper Snake would be required to meet the summer objectives); Karl Dreher, Competing for the Mighty Columbia River – Past Present and Future: The Role of Interstate Allocation 12-13 (1998), Ex. 14, Hasselman Decl. (Director of the Idaho Department of Water Resources estimates that 2.2 million acre-feet in flow augmentation would be required to meet summer flow objectives in an average water year, and much higher quantities in low water years).

[7] However, NMFS emphasized that BOR was considering “additional changes in water management… for the year 2000 and beyond.” 1999 Snake BiOp at 17. Accordingly, NMFS noted that the 1999 Snake BiOp would be in effect only for the “interim period” described in the 1995 FCRPS BiOp. Id. at 47, 53.

[8] Importantly, the report is limited to 24 particular projects nationwide chosen by the OIG, and does not cover all BOR projects in the Columbia and Snake River basins. See Statement of Acting Inspector General Joyce N. Fleischman, Department of Interior, to Committee on Natural Resources at 23, Ex. 19 to Hasselman Decl. Moreover, the report is limited to the application of federal water to nonirrigable land and land outside district or project boundaries. It does not consider other types of water spreading, such as for lands not certified under Reclamation law or lands receiving water in excess of contract provisions. See Audit Report at 10. Therefore, the 1994 Audit report may well underestimate the amount water illegally diverted, potentially by a significant amount.

[9] See Appendix A to Biological Assessment for the FCRPS (Dec. 21, 1999) at A-6 for list of BOR projects in Snake River basin. Ex. 26 to Hasselman Decl.

[10] In its nonbinding “conservation recommendations” section, the BiOp does urge BOR to “evaluate the impacts of . . . water spreading . . . and seek opportunities to reduce these uses.” 1999 Snake BiOp, at 57.

[11] Once consultation has been initiated, Section 7(d) of the ESA prohibits any “irreversible or irretrievable commitment of resources” that “has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures . . .” pending completion of consultation. 16 U.S.C. §1536(d).

[12] NMFS’ refusal to even attempt an estimate of the scale of water spreading is puzzling. The 1994 Audit Report specifically identified approximately 85,000 acre-feet of federal water delivered to ineligible users from only some of the Snake River basin projects, noting that this water could and should be utilized to benefit protected species. See 1994 Audit Report at 13. The 1999 Snake BiOp nowhere mentions the audit report.

[13] Similarly, NMFS conclusion that illegal water uses in the Upper Snake will have no meaningful impact on listed fish is difficult to square with its 1997 conclusion that a proposed water withdrawal from the Columbia River would jeopardize these species. See Inland BiOp at 14.

REGULATIONS