Plaintiff's Ask For Submission Of Dr. Charles Hanson's Opinion Regarding Biop

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GREGORY K. WILKINSON, Bar No. 054809 STEVEN M. ANDERSON, Bar No. 186700 PAETER E. GARCIA, Bar No. 199580 MELISSA R. CUSHMAN, Bar No. 246398 BEST BEST & KRIEGER LLP 3750 University Avenue, Suite 400 P.O. Box 1028 Riverside, California 92502 Telephone: (951) 686-1450 Telecopier: (951) 686-3083 [email protected] Attorneys for Plaintiff STATE WATER CONTRACTORS

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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THE DELTA SMELT CASES

Case No.

1:09-CV-0407 OWW GSA

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SAN LUIS & DELTA-MENDOTA WATER AUTHORITY, et al. v. SALAZAR, et al. (Case No. 1:09-CV-0407)

Judge:

Hon. Oliver W. Wanger

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STATE WATER CONTRACTORS v. SALAZAR, et al. (Case No. 1:09-CV-0422)

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COALITION FOR A SUSTAINABLE DELTA, et al. v. UNITED STATES FISH AND WILDLIFE SERVICE, et al. (Case No. 1:09-CV-0480)

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METROPOLITAN WATER DISTRICT v. UNITED STATES FISH AND WILDLIFE SERVICE, et al. (Case No. 1:09-CV-0631) STEWART & JASPER ORCHARDS, et al. v. UNITED STATES FISH AND WILDLIFE SERVICE, et al. (Case No. 1:09-CV-0892)

PLAINTIFF STATE WATER CONTRACTORS’ SUPPLEMENTAL BRIEF IN SUPPORT OF ADMISSION OF EXTRA-RECORD TESTIMONY Date: October 19, 2009 Time: 11:30 a.m. Courtroom: 3

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INTRODUCTION Pursuant to the Court’s Order of October 9, 2009 (Dkt. 341, ¶ 4), Plaintiff State Water

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Contractors seek permission to submit extra-record testimony in the form of a declaration from

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Dr. Charles H. Hanson to facilitate the Court’s understanding of essential and complex biological

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issues related to the Fish and Wildlife Service’s (“FWS” or “Service”) use of the term, and

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analysis regarding, “habitat” for delta smelt in the 2008 Delta Smelt Biological Opinion

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(“BiOp”). In particular, Dr. Hanson intends to explain the BiOp’s technical justification for

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Reasonable and Prudent Alterative Component 3 and describe additional factors not adequately

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considered nor explained by the Service in imposing the fall X2 requirement, which is

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purportedly designed to improve fall habitat conditions for delta smelt. LEGAL BACKGROUND

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In the Ninth Circuit it is settled law that, while the general rule is that the court’s review of

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an agency action is limited to the administrative record, in order to ensure adequate judicial

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review courts may admit extra-record evidence when: (1) admission is necessary to determine

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whether the agency has considered all relevant factors and explained its decision, (2) the agency

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has relied on documents not in the record, (3) supplementing the record is necessary to explain

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technical terms or complex subject matter, and (4) when plaintiffs make a showing of agency bad faith. E.g., Lands Council v. Forester of Region One of the U.S. Forest Serv., 395 F.3d 1019, 1030 (9th Cir. 2004) (setting forth the exceptions to allow extra-record materials). The purpose of the first and third exceptions – which provide for extra-record evidence that is necessary to (a) determine whether the agency has considered all relevant factors and (b) explain technical terms or complex subject matter – is not to provide for de novo review of the merits of an agency decision but instead to ascertain whether the agency considered all relevant

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factors and to assess the appropriateness of the agency’s decision-making process, respectively. Idaho Conservation League v. Mumma, 956 F.2d 1508, 1520 n.22 (9th Cir. 1992); Ranchers RVPUB\SANDERSON\765489.1

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Cattlemen Legal Action Fund United Stockgrowers of America v. U.S. Dep’t of Agriculture, 499

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F.3d 1108, 1117 (9th Cir. 2007). Thus, in a case involving analysis of “complex environmental

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and biological information,” this Court has previously allowed extra-record evidence in the form

4 of an expert declaration in order to assist the Court in its assessment of “perceived deficiencies in 5 6 7

Cal. 1994). Likewise, in a case involving a disputed listing decision under the Endangered

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Species Act, the Court denied a motion to strike the declaration of Dr. Hanson because his expert

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analysis was “necessary and will facilitate the Court’s understanding of the technical issues.” San

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Luis & Delta-Mendota Water Auth. v. Badgley, 136 F. Supp. 2d 1136, 1144 (E.D. Cal. 2000). Furthermore, in the challenge to the prior delta smelt Biological Opinion, Natural Res. Def.

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the environmental review process.” Environment Now! v. Espy, 877 F. Supp. 1397, 1404 (E.D.

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Council v. Kempthorne, 506 F. Supp. 2d 322, 343-344 (E.D. Cal. 2007), the Court denied in part a motion to strike the declaration of Ted Sommer, instead distinguishing between those

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paragraphs that contained post hoc rationalizations that were based on post record evidence

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(which were stricken) and those paragraphs that drew directly on information contained in the

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Biological Opinion and clarified and explained technical and complex subject matter (which were

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allowed into evidence).

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In this case, expert testimony is necessary to explain the deceptively complex concept of

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“habitat” as used by the Service in the BiOp. See accompanying Declaration of Charles H.

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Hanson, PhD. (“Hanson Decl.”), ¶ 4. The general definition of habitat is those geographic areas

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that support the physical (abiotic) and biological (biotic) resources upon which a species depends.

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Id. ¶ 5. This scientific concept is reflected in the legal definition of critical habitat as set forth in

27 the Endangered Species Act. 16 U.S.C. § 1532(5). The importance of habitat is reflected in its 28 RVPUB\SANDERSON\765489.1

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co-equal status with species in the consultation process, which requires the Service to ensure that

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agency actions are not likely to jeopardize the continued existence of a listed species or result in

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the destruction or adverse modification of its critical habitat. Id. § 1536(a)(2) (emphasis

4 added); see also 40 C.F.R. § 402.14(g)(2)-(4) (requiring the Service to evaluate the current status 5 6 7

to whether the action is likely to result in the destruction or adverse modification of its critical

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habitat), (h)(2)-(3) (mandating that the biological opinion contain a detailed discussion of the

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effects of the action on critical habitat and the Service’s opinion whether the action is likely to

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result in the destruction or adverse modification of its critical habitat). In light of the prominence of habitat in the consultation process, a critical issue in this case

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of critical habitat, evaluate the effects of the action on critical habitat, and formulate its opinion as

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is the way in which the Service defines habitat (including by use of surrogates or proxies, most notably including X2, which refers to the area within the Delta where salinity is 2 parts per

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thousand), evaluates the effects of CVP and SWP operations on designated critical habitat for

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delta smelt, and, having determined that the action is likely to result in the destruction or adverse

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modification of the species’ critical habitat, arrives at a set of reasonable and prudent alternatives

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that would allegedly not violate section 7(a)(2) insofar as it addresses effects on habitat. To assist the Court, the State Water Contractors are submitting an abbreviated Declaration of Dr. Charles

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Hanson with this filing. Dr. Hanson is the principal at Hanson Environmental, Inc. an environmental consulting

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firm that specializes in fisheries and water quality issues. Hanson Decl., ¶ 1. He holds a Ph.D in

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fisheries and ecology from the University of California, Davis and a B.Sc and M.Sc in fisheries

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from the University of Washington. Dr. Hanson is a life member of and fishery biologist certified

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by the American Fisheries Society. Dr. Hanson has more than 31 years of experience in

27 freshwater, estuarine, and marine biological studies. He served as a member of the Fish and 28 RVPUB\SANDERSON\765489.1

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Wildlife Service Native Delta Fish Recovery Team, Central Valley Technical Recovery Team,

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Fish and Wildlife Service Delta Smelt Recovery Team, National Marine Fisheries Service Central

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Valley Technical Recovery Team, Klamath Basin Sucker Status Review Team, and numerous

4 other technical advisory committees. In addition, Dr. Hanson is the author of more than 75 5 6 7

review and his specialized knowledge of fisheries and ecology, Dr. Hanson intends to explain to

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the Court the way in which the Service defines delta smelt habitat in the BiOp, the effects of the

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CVP and SWP on such habitat, and the purported benefits of reasonable and prudent alternative Component 3 (aka “Action 4”) on delta smelt habitat in the fall. Id. ¶ 4. (RPA Component 3 is

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Dr. Hanson has conducted a preliminary review of the BiOp. Id. ¶ 3. Based on this

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technical and scientific reports. Hanson Decl., ¶ 1.

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the sole RPA designed to improve habitat conditions for the delta smelt, and is based entirely on management of the position of X2 in the Delta during the fall.) Dr. Hanson is well positioned to

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explain these issues to the Court given his academic training and professional experience,

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including extensive work in the Delta with delta smelt and other aquatic organisms.

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Dr. Hanson’s declaration will focus on the misuse of the generally accepted scientific concept of habitat in the development of the BiOp. Hanson Decl., ¶ 4. Dr. Hanson will explain that, while the BiOp frequently references abiotic habitat, there is no such thing as abiotic habitat.

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Id. ¶ 5. There is only habitat. Id. Habitat does have abiotic components, which include water

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temperature, salinity, and turbidity, as well as waterway substrates and other physical structural

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attributes of the Delta. Id. But habitat by definition also includes biotic components, including

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food resources, vegetative cover, and predators. Id. The combination of abiotic and biotic

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resources and conditions define the geographic space where delta smelt can survive and persist,

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that is their habitat. Id. Given that the overlap of essential habitat components of the delta smelt

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will always experience acceptable temperatures or provide adequate food types or densities), no

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one abiotic or biotic habitat component can serve as the sole indicator or surrogate measure for

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actual habitat. Id. As a trained ecologist and fisheries biologist, Dr. Hanson is in a position to

4 convey to the Court a sense of the significance of this issue. Dr. Hanson’s expert opinion in this 5 6 7 8 9 10

unsupported. Natural Res. Def. Council, 506 F. Supp. 2d at 382. Additionally, Dr. Hanson’s declaration will focus on the full complement of physical and biological variables that define habitat conditions for delta smelt in the fall. Hanson Decl., ¶ 4. In particular, portions of the BiOp and Component 3 of the RPAs rely upon the purported relationship between indices of abundance for delta smelt and the location of the low salinity

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respect is consistent with the Court’s prior holding that use of X2 as a proxy for habitat is

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region, which has been defined by the Service for management purposes as the location of X2, during the fall. Id. ¶ 6. To understand and properly evaluate the complex information upon

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which this purported relationship is based, further technical explanation is essential not only

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about the statistical analyses relied upon by the Service in the BiOp, as well as the data

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underlying those analyses – an explanation which Dr. Deriso will provide – but also about habitat,

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delta smelt abundance, delta smelt distribution and other essential biological and physical indices related to delta smelt and the areas of the Delta it occupies during the fall period. Id.

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Dr. Hanson will review the assumptions and statistical analyses presented in one of the

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primary studies relied upon in the BiOp to support RPA Component 3, Feyrer et al. (2007), to

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examine the reliability and efficacy in conservation planning of habitat parameters included in

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that study. Hanson Decl., ¶¶ 6-9. Dr. Hanson will examine and describe findings from California

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Department of Fish and Game field surveys of the geographic distribution and abundance of delta

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smelt in the fall relative to essential habitat characteristics, including the location of X2. Id. ¶ 10.

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factors, not just salinity and turbidity, but water depth, temperature, zooplankton food sources,

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chlorophyll, and other delta attributes that are essential in determining habitat for delta smelt. Id.

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¶ 9. Information from biological surveys of physical and biological resources in the Delta can be

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half, the location of X2 in the fall has been a strong driver of delta smelt spawning and

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subsequent production of young delta smelt the next spring. Id. ¶ 11. The available scientific

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data regarding actual habitat conditions and delta smelt abundance will be presented to focus on

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relationships that have occurred since 1995, when the Bay-Delta Accord went into effect. Id. ¶ 12. Dr. Hanson intends to present a summary of the information and analyses of habitat and

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delta smelt habitat during the fall. Id. ¶ 10. A key issue is whether, over the past decade and a

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abundance relationships for delta smelt, and an opinion regarding the potential benefits to delta smelt of managing fall X2 in the manner described in the BiOp. Id. Controlling fall X2 location through RPA Component 3 has important, material

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implications for water export operations. The potential reduction in available CVP and SWP

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exports resulting from the implementation of X2 alone ranges from the hundreds of thousands

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acre feet of water to more than a million acre feet of water annually. See Dkt. 245-4, Ex. B. It also has significant implications for the management and availability of cold water within

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upstream CVP and SWP reservoirs needed to support habitat for winter-run and spring-run

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Chinook salmon and Central Valley steelhead. Hanson Decl., ¶ 13. Dr. Hanson’s assessment

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will include an analysis of CALSIM model results on the effects that managing Project water to

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meet a fall X2 standard under RPA Component 4 will have on upstream habitat quality and

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availability for salmon and steelhead. Id. Modeling tools have been developed using operating

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criteria included in both the FWS BiOp and the National Marine Fisheries Service 2009 Salmonid

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together on the ability of water managers to meet both upstream and downstream habitat

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conditions for the delta smelt and upstream conditions for salmon and steelhead. Id. Part of the

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biological basis for evaluating fall X2 conditions is the effect that implementation of the

4 downstream estuarine fall conditions has on upstream habitat for salmon and steelhead. Id. Dr. 5 6 7

Project water supplies that would be required to be used to meet a fall X2 standard, the level of

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scientific uncertainty associated with the RPA objective of increasing delta smelt abundance in

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the fall, and how implementation of a fall X2 requirement is likely to adversely affect salmon and

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steelhead. The subject matter of Dr. Hanson’s expert declaration is distinct from that being offered

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Hanson’s expert views are necessary to explain to the Court the relative magnitude of additional

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by other expert declarants. While Dr. Deriso is offering expert views on RPA component 3, his views are limited to modeling and statistical analysis. The focus of Dr. Hanson’s testimony will

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be on the concept of habitat, with an approach that is grounded in both the fisheries and

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ecological sciences. In sum, expert testimony is necessary to interpret and explain the way in

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which the Service has defined habitat, has analyzed the effects of the CVP and SWP on habitat,

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and assessed the purported benefits of RPA component 3 for delta smelt habitat. Therefore, the State Water Contractors respectfully request that the Court afford them an opportunity to submit

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the declaration of Dr. Hanson.

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BEST BEST & KRIEGER LLP Dated: October 9, 2009

24 By: /s/ Gregory K. Wilkinson GREGORY K. WILKINSON STEVEN M. ANDERSON PAETER E. GARCIA MELISSA R. CUSHMAN Attorneys for Plaintiff STATE WATER CONTRACTORS

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