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The Legal Context of This Report

SCOPE OF THE COMMITTEE’S TASK

The committee was asked “to review the scientific basis of actions that have been and could be taken to simultaneously achieve both an environmentally sustainable Bay-Delta and a reliable water supply.” While this committee’s review is scientific, and not legal, the committee nonetheless recognizes the importance of the legal context within which its evaluation takes place. The standard of review applicable in legal challenges to the opinions and associated RPAs provides a useful reference. In such lawsuits, courts will invalidate the RPAs only if they are demonstrated to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” (Administrative Procedure Act, 5 U.S.C. § 706(2)(A)). Courts are reluctant to second-guess technical agency judgments and may not substitute their judgment for that of the agency, particularly in cases where there are scientific uncertainty and differing scientific views. See Aluminum Co. of America v. Bonneville Power Administration, 175 F.3d 1156 (9th Cir. 1999); Trout Unlimited v. Lohn, 559 F.3d 946 (9th Cir. 2009). Thus, while the committee can come to different conclusions than the agencies did in their biological opinions, that would not be a legal justification for deeming them inadequate, as long as the agencies adequately considered the available scientific data and their conclusions are supportable by the evidence. Similarly, the RPAs should not be considered legally inadequate simply because different alternatives could be scientifically justified, as long as the agencies could reasonably believe that their RPAs would avoid the likelihood of jeopardy.

Some aspects of the committee’s task require it to make determinations beyond the scope of the agencies’ legal obligations or authority when issuing a biological opinion and RPAs. For example, the committee’s charge includes consideration of the effects of stressors such as pesticides, ammonium, and invasive species on federally listed and other at-risk species in the Bay-Delta—stressors likely beyond the action agencies’ legal authority to regulate, unless the effects are indirectly changed by the RPAs. Any such considerations by this



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2 The Legal Context of This Report SCOPE OF THE COMMITTEE’S TASK The committee was asked “to review the scientific basis of actions that have been and could be taken to simultaneously achieve both an environmentally sus- tainable Bay-Delta and a reliable water supply.” While this committee’s review is scientific, and not legal, the committee nonetheless recognizes the importance of the legal context within which its evaluation takes place. The standard of review applicable in legal challenges to the opinions and associated RPAs pro- vides a useful reference. In such lawsuits, courts will invalidate the RPAs only if they are demonstrated to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” (Administrative Procedure Act, 5 U.S.C. § 706(2)(A)). Courts are reluctant to second-guess technical agency judgments and may not substitute their judgment for that of the agency, particularly in cases where there are scientific uncertainty and differing scientific views. See Aluminum Co. of America v. Bonneville Power Administration, 175 F.3d 1156 (9th Cir. 1999); Trout Unlimited v. Lohn, 559 F.3d 946 (9th Cir. 2009). Thus, while the committee can come to different conclusions than the agencies did in their biological opinions, that would not be a legal justification for deeming them inadequate, as long as the agencies adequately considered the available scientific data and their conclusions are supportable by the evidence. Similarly, the RPAs should not be considered legally inadequate simply because different alternatives could be scientifically justified, as long as the agencies could rea- sonably believe that their RPAs would avoid the likelihood of jeopardy. Some aspects of the committee’s task require it to make determinations be- yond the scope of the agencies’ legal obligations or authority when issuing a biological opinion and RPAs. For example, the committee’s charge includes consideration of the effects of stressors such as pesticides, ammonium, and inva- sive species on federally listed and other at-risk species in the Bay-Delta— stressors likely beyond the action agencies’ legal authority to regulate, unless the effects are indirectly changed by the RPAs. Any such considerations by this 17

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18 Threatened and Endangered Fishes in California’s Bay-Delta committee in this or in its second report would have no bearing on the question of whether or not the biological opinions and RPAs are legally adequate. In- stead, such considerations should be interpreted in contexts apart from the bio- logical opinion and RPAs, such as the Bay-Delta Conservation Program (devel- opment of a habitat conservation plan); the State Water Resources Control Board’s development of flow criteria for the delta; the Delta Stewardship Coun- cil’s development of a delta plan; and others. POTENTIAL VIOLATIONS OF ESA SECTION 7 AND SECTION 9 In each biological opinion, the relevant wildlife agency concluded that the proposed federal action—implementation of the water projects’ operations plan—was likely to “jeopardize” the continued existence of species listed as endangered and to adversely modify their critical habitat. This would violate Section 7 of the Endangered Species Act (ESA), which requires agencies to “in- sure” that any actions they authorize, fund, or carry out are not likely to jeopard- ize endangered species or to destroy or adversely modify the species’ critical habitat (16 U.S.C. § 1536 (a) (2)). As defined by agency regulations, “jeopardy” means that the proposed action “reasonably would be expected, directly or indi- rectly, to reduce appreciably the likelihood of both the survival and recovery of [relevant endangered species] in the wild by reducing the reproduction, num- bers, or distribution of that species” (50 C.F.R. § 402.02). As required by the ESA, the wildlife agencies suggested “reasonable and prudent alternatives” (RPAs) that would allow the action to go forward without violating Section 7 (16 U.S.C. § 1536 (B) (3) (A)). In addition to the jeopardy determinations (generally, applying to species as a whole), both biological opinions found that the proposed action would “take” individual members of the endangered populations in violation of Section 9 of the ESA. By regulation, the “take” of an endangered species includes “an act which actually kills or injures wildlife” and may include “significant habitat modification or degradation where it actually kills or injures wildlife by signifi- cantly impairing essential behavioral patterns, including breeding, feeding, or sheltering” (Babbitt v. Sweet Home Chapter of Communities, 515 U.S. 687 (1995)). The resource agencies, the National Marine Fisheries Service and the Fish and Wildlife Service, issued an “incidental take statement,” in the present case, setting forth reasonable and prudent measures necessary and appropriate to minimize the effect of the proposed action on endangered species. If the action agencies (the Bureau of Reclamation and the California Department of Water

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The Legal Context of This Report 19 Resources) comply with those measures, including monitoring and reporting requirements, then any “takes” that result from project operations will be deemed “incidental,” and they will be exempt from the prohibitions of Section 9. STANDARDS FOR THE PREPARATION OF BIOLOGICAL OPINIONS Best Available Data Under the ESA, the agencies must develop their biological opinions and as- sociated RPAs using the “best scientific and commercial data available” (16 U.S.C. § 1536 (a) (2)). Courts have emphasized the qualifier available, explain- ing that perfect data are not required. Action can be taken based on imperfect data, so long as the data are the best available. In addition, the above require- ment does not remove the agency’s discretion to rely on the reasonable judg- ments of its own qualified experts, even if others, even a court, might find alter- native views more persuasive (see Aluminum Co. v. Bonneville Power Admin., 175 F.3d 1156 (9th Cir. 1999). Thus, the courts afford the agencies significant deference in determining the best data available for developing the RPAs. Therefore, even if this committee might have relied on different data or come to different conclusions than the agencies did, it does not follow that the RPAs are legally insufficient. Rather, this committee’s conclusions and recommendations should be seen as applying to future work beyond the scope of the agencies’ legal obligations. Economic Considerations Although the economic impact of species protections may be relevant under the ESA, its influence is limited. For example, economic concerns may not be part of the decision whether or not to list species as endangered or threatened, but must be considered when the agencies designate critical habitat (16 U.S.C. § 1533). When developing biological opinions and RPAs, the Ninth Circuit ac- knowledged that the wildlife agencies may go beyond “apolitical considera- tions” and that if two proposed RPAs would avoid jeopardy to the relevant spe- cies, the agencies “must be permitted to choose the one that best suits all of its interests, including political or business interests.” Southwest Center for Bio- logical Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515 (9th Cir. 1998); See also Bennett v. Spear, 520 U.S. 154 (1997) (asserting that the “best scien- tific and commercial data” provision is . . . intended, at least in part, to prevent

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20 Threatened and Endangered Fishes in California’s Bay-Delta uneconomic [because erroneous] jeopardy determinations”). Nevertheless, the lower courts have been reluctant to second-guess agency opinions on the basis of economic arguments (Aluminum Co. cited above). Effects of the Proposed Action and the Environmental Baseline In preparing biological opinions, agencies must evaluate the “effects of the [proposed] action” on the species or its critical habitat. Other adverse modifica- tions of the species’ habitats or negative effects on their populations are consid- ered part of the “environmental baseline.” The agencies’ analysis includes con- sideration of: 1) direct effects; 2) indirect effects (“those that are caused by the proposed action and are later in time, but still are reasonably certain to occur”); 3) interrelated actions (“those that are part of a larger action and depend on the larger action for their justification”); 4) interdependent actions (“those that have no independent utility apart from the action under consideration”); and 5) cumulative effects (“those effects of future State or private activities, not involving Federal activities, that are reasonably certain to occur within the action area of the Federal action subject to consultation”) (50 C.F.R. §§ 402.02 and 402.14(g)(3-4)). STANDARDS FOR THE PREPARATION OF REASONABLE AND PRUDENT ALTERNATIVES (RPAs) Although RPAs are not binding on the action agency, adherence to the RPAs provides the agency with a safe harbor from claimed violations of the ESA. As the U.S. Supreme Court explained, “the action agency is technically free to disregard the Biological Opinion and proceed with its proposed action, but it does so at its own peril (and that of its employees), for ‘any person’ who knowingly ‘takes’ an endangered or threatened species is subject to substantial civil and criminal penalties, including imprisonment” (Bennett v. Spear, 520 U.S. 154 (1997)). Under agency regulations, the RPAs must satisfy each of the following four requirements:

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The Legal Context of This Report 21 1) Project purpose: RPAs must be capable of implementation in a manner consistent with the intended purpose of the action. 2) Scope of agency authority: RPAs must be consistent with the scope of the action agencies’ legal authority and jurisdiction. 3) Feasibility: RPAs must be economically and technologically feasible; and 4) Avoid jeopardy: The directors of FWS and NMFS must believe that the RPAs would avoid the likelihood of jeopardizing the continued exis- tence of listed species or resulting in the destruction or adverse modifi- cation of critical habitat (50 C.F.R. § 402.02). Although RPAs must avoid the likelihood of jeopardy, they are not required to promote recovery of the affected species. In other words, no RPA has the responsibility of mitigating all the adverse effects—the “environmental base- line”—that may be causing the decline of a listed species. They must only avoid the likelihood that the proposed action will cause jeopardy.