Weekend reading: Delta smelt court documents!

I couldn’t let you go home for the weekend without giving you some reading material.  On Wednesday, ACWA’s Water News and the Fresno Bee reported that Judge Wanger’s replacement, U.S. District Judge Lawrence J. O’Neill, has initially has declined a request for a three year extension to rewrite the biological opinions for the Delta smelt and salmon, although he did give the option for the USFWS & Bureau of Reclamation to submit more information about a collaborative science and management plan that would include all the various agencies, water users and environmental groups in the updating process.  The agencies had requested the additional three years so they “can use their limited resources in ways that are the most effective for the short-term and long-term protection of ESA listed species.”

In the agencies motion to the court for an extension, they write:

The three-year extension is part of a plan that includes a robust science-based and adaptive management processthat will amplify the ability to address key issues through increasing the involvement of relevant stakeholders and will improve our understanding of the listed species’ needs. … The collaborative science and adaptive management program described in the attachment hereto is a more inclusive and transparent approach to the development of operational strategies that will give NMFS and FWS a greater ability to respond quickly to real-time information and employ effective adaptive management.

Exhibit A describes the agencies plan:

The time constraints of the current court ordered remand schedules do not afford the opportunity to undertake a collaborative adaptive management process within the framework of the existing NMFS (2009) and FWS (2008) Biological Opinions (BiOps). This document describes an alternative, more inclusive, and transparent approach to the development of operational strategies that State and Federal agencies (DWR, DFG, USBR, FWS, and NMFS) agree to employ with public water agencies and non‐governmental organizations which are remand parties if the existing court ordered remand schedules for the BiOps and the associated NEPA process are extended for three years.

The agencies plan includes establishing a Collaborative Adaptive Management Team (CAMT) to assist agencies in designing, implementing and evalutaing an adaptive management program, adopting annual operational plans and conducting science reviews of operations and effects on species, and periodic meetings with agnecy and NGO prinicpals, as well as supporting “time out” on new litiagion based on the biops and interim operational strategies.

Judge O’Niell wrote in his opinion that the groups functions are descibed in ‘the most general terms’:

At first glance, it appears that movants have simply changed their minds about how they wish to go about gathering information for use in preparing the revised BiOps. While this might be a sound policy choice that could have been considered in designing the timeline for remand, the fact is that a timeline was set, in accordance with Federal Defendants‟ prior wishes, and embodied in final judgments entered by this Court. Rule 60(b) does not permit modification of a judgment based on whim. Why this constitutes a “significant change in factual conditions” is entirely unclear. Why could this collaborative process not have been incorporated or presumed in the original schedule? Is it truly a paradigm change in the way the agencies work with each other and stakeholders? If so, what has “changed”?

About the BDCP, Judge O’Niell writes:

DWR‟s declarant indicates that the BDCP underwent a design change in July 2012, including a reduction in the number of Sacramento River intakes, a reduction of total conveyance capacity, and other proposed changes to maximize energy efficiency and minimize environmental impacts. … But nowhere is it explained why these design changes constitute a change in circumstance relevant to the kind of strategic planning approaches at issue here, let alone why they now (as opposed to at the time the original judgments were entered) motivate the agencies to modify the BiOp remand process to ensure consistency between the BiOps and relevant BDCP documents.

Therfore, Judge O’Niell concludes:

Rather than deny the motion outright, as the Court is inclined to do, the movants are directed to submit a supplement that provides additional detail regarding the CSAMP, including, but not limited to, those issues noted above. The Court directs all Parties to work together toward the development of a joint detailed revised CSAMP proposal. If, after review of the supplemental filings, the Court believes an extension is warranted under Rule 60(b), it will be to permit this collaborative process to move forward. Defendant-Intervenors‟ objections to the extension are noted, have not been overruled, and will not be waived by their participation in the process of developing the revised CSAMP proposal.

The agencies must file a revised CSAMP proposal and supporting documents by March 1, 2013.




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