Full opinion text
MEMORANDUM DECISION AND ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT (DOCS. 233, 238, 243, 247, 252) WANGER, District Judge. Before the court are cross-motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Oral argument was heard August 20, 2002. Plaintiffs Westlands Water District, San Luis & Delta Mendota Water Authority and San Benito County Water District were represented by Daniel O’Hanlon, Esq. Plaintiff Intervenor, Sacramento Municipal Utility District, was represented by Steve Saxton, Esq., and David Lindgren, Esq. Northern California Power Association, Plaintiff Intervenor, was represented by T. Ronald Lapheimer, Esq. Defendant United States Department of the Interior and all other named Federal defendants, were represented by Charles Shockey, Esq. The Hoopa Valley Tribe, Defendant-Intervenor, was represented by Thomas Schlosser, Esq. The Yurok Tribe was represented by Scott Williams, Esq. I. FACTUAL AND PROCEDURAL BACKGROUND This suit involves the United States Department of Interior’s (“Interior”) administration of the Trinity River Division (“TRD”) of the Central Valley Project (“CVP”) and Interior’s implementation of Section 3406(b)(23) of the Central Valley Project Improvement Act (“CVPIA”), to restore and maintain the Trinity River fishery. II. UNDISPUTED FACTS The TRD was authorized by an Act of Congress on August 12, 1955. Among the purposes of the TRD Act are that the Secretary provide necessary and beneficial services such as water supply and power and that the Secretary operate the TRD to effectuate the fullest, most beneficial and most economic utilization of the River and adopt appropriate measures to protect fish and wildlife in the Trinity River basin. Trinity River Act of 1955 § 2. Construction of the TRD was completed and operations commenced in 1964. The TRD transfers water from the Klamath River Basin, which includes the Trinity River, in Trinity County, California, to the Sacramento River Basin. Its primary function is to store Trinity River water for regulated diversion to California’s Central Valley for agricultural, municipal, and industrial uses. It also produces electrical power. The TRD accounts for twenty-five percent (25%) (500 megawatts (Mw)) of the 2000 Mw of CVP-generated electric power. The Trinity River Basin is home to protected fish species; The native anadromous salmonid species of interest in the mainstem Trinity River ■ and its tributaries include chinook salmon, coho salmon, and steelhead. Of the three species, there are two spawning populations of chinook salmon (spring and fall) and two spawning populations of steelhead (winter and summer). All anadromous species begin their life in fresh water, then migrate to the ocean to mature, and return to spawn in fresh water. DEIS at 3-151 to 8-152. The spring-run chinook migrates in the spring to summer, spawns in the early fall, rears in winter-spring-summer, and makes its habitat for feeding in shallow, slow-moving waters adjacent to higher water velocities. The fall-run chinook migrates in the fall, spawns in the fall, rears in winter-spring-summer, and makes its habitat in the same areas as the spring-run chinook. The winter steel-head migrates in the fall to winter, spawns between February and April, rears year-round, and makes its habitat in areas of clean cobble where there is refuge from high river flow velocities. The summer steelhead migrates in the spring to summer, spawns between February and April, rears year-round, and makes its habitat in the same area as its related species. The Hoopa Valley and Yurok Reservations were established in those Tribes’ aboriginal lands in the Klamath and Trinity River basins. Since prehistoric times, the fishery resources of the Klamath and Trinity Rivers have been the mainstay of Native American culture and life in the area. The TRD’s construction and operation resulted in the diversion of up to ninety percent (90%) of the average annual discharge into the Trinity River at Lewiston Dam (1,234,000 AF of the 1,396,000 AF inflow), and blocked access to 109 miles of steelhead and salmon spawning and rearing habitat. In response to declining fisheries and degraded habitat conditions, Interior decided in 1981 to increase flows into the Trinity River ranging from 140,-000 AF to 340,000 AF annually. In addition, the United States Fish and Wildlife Service (“USFWS”) was directed to undertake a Flow Evaluation Study to assess fish habitat at various flows, summarize the effectiveness of other instream and watershed restoration activities, and recommend appropriate flows and other measures necessary to better maintain favorable habitat conditions. The study began in October 1984 and was completed by a June 1999 report. In October 1984, Congress enacted the Trinity River Basin Fish and Wildlife Management Act (“1984 Act”) to restore fish and wildlife populations to pre-TRD levels. The 1984 Act found that the TRD had contributed to a “drastic reduction in the anadromous fish populations.” Public Law 98-541, Section 1(1). It directed that the restoration program include: (1) The design, construction, operation, and maintenance of facilities to— (A) rehabilitate fish habitats in the Trinity River between Lewiston Dam and Weitchpec; (B) rehabilitate fish habitats in tributaries of such river below Lewiston Dam and in the south fork of such river; and (C) modernize and otherwise increase the effectiveness of the Trinity River Fish Hatchery. (2) The establishment of a procedure to monitor (A) the fish and wildlife stock on a continuing basis, and (B) the effectiveness of the rehabilitation work. (3) Such other activities as the Secretary determines to be necessary to achieve the long-term goal of the program. Public Law 98-541, Section 2(a). In 1991, the Secretary of the Interior increased the minimum flows in the Trinity River to 340,000 AF/year until the Trinity River flow study was completed. The 340,000 AF number was the third-lowest unregulated flow on record. In 1992, Congress enacted the CVPIA to annually redirect part of the CVP’s water to the environment. CVPIA § 3406(b)(23) specifically authorizes and directs Interior to restore the Trinity River. It requires that not less than 340,000 AF of water be released into the Trinity River each year for water years 1992-1996 in order to meet federal trust responsibilities to the Hoopa Valley Tribe and to meet the restoration goals of the 198f Act. CVPIA § 3406(b)(23). It directs the Secretary of the Interior (“Secretary”), after consultation with the Hoopa Valley Tribe to complete the Trinity River Flow Evaluation Study (“TRFES”), which had already begun pursuant to the January 14, 1981 Secretarial Decision, no later than September 30, 1996. CVPIA § 3406(b)(23)(A). The TRFES was to be performed “in a manner which insures the development of recommendations, based on the best available scientific data, regarding permanent in-stream fishery flow requirements and Trinity River Division operating criteria and procedures for the restoration and maintenance of the Trinity River fishery.” Id. Section 3406 then directs the Secretary to forward the TRFES recommendations to several congressional committees no later than December 31, 1996. CVPIA § 3406(b)(23)(B). If the Secretary and the Hoopa Valley Tribe concurred in the TRFES recommended increases for Trinity River instream fishery flow releases established under CVPIA § 3406(b)(23)(B), such restoration flows were to be implemented accordingly.' Id. If they did not concur, the 340,000 AF minimum flows must remain in effect unless increased by an act of Congress, appropriate judicial decree or agreement between the Secretary and the Hoopa Valley Tribe. Id. In 1996, Congress amended the 1984 Act by the Trinity River Basin Fish and wildlife Management Reauthorization Act of 1995, Pub.L. No. 1044W8, 110 Stat. 1338 (1996). The TRFES was not timely completed. Congress directed that Trinity River restoration be measured not only by returning adult anadromous fish spawners, but also by the ability of dependant tribal, commercial, and sport fisheries to participate fully, through in-river and ocean harvest opportunities, in the benefits of the restoration. Pub.L. No. 104-408. Congress also included language amending the activities to be undertaken by the Secretary. Id. The original language directed the Secretary to “modernize and otherwise increase the effectiveness of the Trinity River fish hatchery.” The 1996 Act adds “so that it can best service its purpose of mitigation of fish habitat loss above Lewi-ston Dam while not impairing efforts to restore and maintain naturally reproducing anadromous fish stocks within the basin.” Id. In January 1998, the draft Trinity River Flow Evaluation Report (TRFER) was released. In June 1999, Interior, in consultation with the Hoopa Valley Tribe, published the Trinity River Flow Evaluation Final Report (“TRFEFR”). The TRFEFR recommends permanently increasing the Trinity River fish flows from the statutorily mandated 340,000 AF/year to between 368,900 and 815,200 AF/year, as follows: TRFEFR § 8.1, p. 241. On October 19, 1999, the United States Bureau of Reclamation (“Bureau”) and the USFWS released the draft “Trinity River Mainstem Fishery Restoration Environmental Impact Statement/Report” (“DEIS”), which described alternate approaches for restoring and maintaining the Trinity River fishery. Interior published the availability of the draft EIS/EIR and the commencement of a public comment period scheduled to end on December 8, 1999. 64 Fed.Reg. 56864, 1999 WL 827447 (Oct. 19, 1999). The public comment period was extended until January 20, 2000. 64 Fed.Reg. 67584,1999 WL 1078497 (Dec. 2, 1999); 64 Fed.Reg. 72357, 1999 WL 1247501 (Dec. 27, 1999). On January 20, 2000, San Luis & Delta-Mendota Water Authority (“San Luis”) submitted written comments criticizing the DEIS, noting, inter alia, that the DEIS failed to analyze the preferred alternative’s potential adverse environmental impacts on federally listed endangered or threatened fish species within the Sacramento River system and the Sacramento-San Joaquin Delta (“Delta”), and also failed to analyze how these adverse impacts, if any, could be minimized or avoided. Doc. 35 at ¶¶ 39-40 & Ex. A. On March 10, 2000, Westlands Water District (“Westlands”) and San Luis sent a sixty-day notice of intent to sue to Interi- or, threatening suit if Interior did not undertake a formal ESA consultation on the TRFEFR. On March 29, 2000, Interior forwarded the TRFEFR to Congress, pursuant to CVPIA § 3406(b)(23) (“the Secretary shall forward the recommendations of the Trinity River Flow Evaluation Study ... to the Committee on Energy and Natural Resources and the Select Committee on Indian Affairs of the Senate and the Committee on Interior and Insular Affairs and the Committee on Merchant Marine and Fisheries of the House of Representatives. If the Secretary and the Hoopa Valley Tribe concur in these recommendations, any increase to the minimum Trinity River instream fishery releases established under this paragraph and the operating criteria and procedures referred to in sub-paragraph (A) shall be implemented accordingly.”). On May 8, 2000, Interior responded to San Luis’ letter, acknowledging that ESA “ § 7 consultation over potential effects to species listed as either threatened or endangered under the ESA ... must be accomplished as part of the process of making a decision on the Program.” It reassured that “no final decision on the Program will be made until both the USFWS and NMFS have issued biological opinions regarding implementation of the Program, and that these opinions will be taken into consideration in making such decisions.” On October 12, 2000, the National Marine Fishery Service (“NMFS”) formally issued the “Biological Opinion for the Trinity River Mainstem Fishery Restoration EIS and Its Effects on Southern Oregon/Northern California Coast Coho Salmon, Sacramento River Winter-run Chinook Salmon, Central Valley Spring-run Chinook Salmon, and Central Valley Steel-head” (“BioOp.”). This BioOp recognizes that implementation of the report will affect many aspects of the river, including decreased water flows, and discusses reasonable and prudent measures (“RPMs”) to minimize or avoid the preferred alternative’s impacts on “federally listed” fish. Also on October 12, 2000, the USFWS issued “Re[-]initiation of Formal Consultation: Biological Opinion of the Effects of Long-term Operation of the Central Valley Project and State Water Project as Modified by Implementing the Preferred Alternative in the Draft Environmental Impact Statement/Environmental Impact Report for the Trinity River Mainstem Fishery Restoration Program” (“USFWS BioOp”). On November 17, 2000, Interior published notice of the availability of the final EIS/ EIR (“FEIS”). 65 Fed.Reg. 69512, 2000 WL 1711646 (Nov. 17, 2000). On December 14, 2000, Westlands filed suit against defendants, alleging three claims: (1) “maladministration” of the Endangered Species Act (“ESA”) by the USFWS; (2) maladministration of the ESA by NMFS; and, (3) violation of NEPA by all defendants. Doc. 1 at 15-24. That same day, West-lands sought an emergency court order to enjoin the defendant, Bruce Babbitt (as Secretary of the Interior), from executing a Record of Decision (“ROD”) with the Hoopa Valley Tribe, scheduled to be signed on Tuesday, December 19, 2000. On December 15, the Hoopa Valley Tribe intervened as a defendant in the case. The motion for a Temporary Restraining Order (“TRO”) was denied in open court on the afternoon of December 15, 2000, and the confirming written order was entered on January 80, 2001. Doc. 85. The application for a TRO was denied because at the time of the December 15 hearing, Secretary Babbitt had not yet signed the ROD. The signing was scheduled for December 19, 2000. Until the ROD was signed, there was no “final agency action” that Westlands could challenge and no authority existed to enjoin the Executive from implementing the statutory function of reaching agreement with the Indian Tribes on the Trinity River Restoration Plan. Id. at 4-5. On December 18, 2000, the Hoopa Valley Tribe concurred in the TRFES recommendations. On December 19, 2000, Secretary Babbitt and the Senior Chairman of the Hoopa Valley Tribal Council signed the ROD. The ROD directs Interior’s agencies “to implement the Preferred Alternative as described in the FEIS/EIR and as provided below,” and “to implement the reasonable and prudent measures described in the NMFS and [USFWS] Biological Opinions.” The ROD’s stated purpose is: restoration and perpetual maintenance of Trinity River’s fishery resources by rehabilitating the river and restoring attributes of a healthy, functioning alluvial river system. AR 17694-95. The essential components to do so are: 1. Permanently increase variable annual flows for the Trinity River; 2. Rehabilitate physical channels, remove riparian berms and establish side channel habitat; 3. Sediment management to increase spawning gravels and reduce fine sediments; 4. Restore the watershed damage by land use practices; 5. Improve infrastructure, including bridges and other structures affected by peak flows. On January 5, 2001, Westlands and two new plaintiffs, the San Luis and Delta-Mendota Water Authority, and the San Benito County Water District (collectively “water districts”), filed a first amended complaint against the federal defendants, alleging four causes of action: (1) maladministration of the ESA by the USFWS, claiming that by “issuing a non-jeopardy biological opinion that requires a major change in CVP operations [ie., preventing any upstream movement of 0.5 km or more of the X2 water quality standard], the USFWS has exceeded its authority under the Endangered Species Act;” (2) maladministration of the ESA by NMFS, claiming that NMFS acted arbitrarily and capriciously and in excess of its authority under the ESA by issuing a biological opinion that internally conflicts, because it states on one hand that “NMFS does not anticipate that implementation of the proposed flow schedules will incidentally take any SONCC coho salmon,” and on the other hand, prescribes RPMs to deal with incidental take; (3) violation of NEPA by all defendants, claiming that: (a) the draft and final EIS/EIRs do not analyze the impacts of implementing the requirements of the USFWS and NMFS biological opinions; (b) the final EIS/EIR does not adequately describe what CVP operational changes will occur to protect or mitigate the adverse effect upon listed fish, upon which the draft EIS/EIR acknowledges implementation of the preferred alternative may have a significant adverse impact, and simply defers mitigation consideration until later; (c) because the biological opinions modified the proposed action by creating new environmental impacts (or new circumstances and information), the defendants failed to supplement the EIS/EIRs to analyze these impacts and publish the analysis for public comment; (d) the draft and final EIS/EIR do not fairly evaluate alternatives, and are in essence a “post hoc rationalization to justify a course of action decided upon before NEPA review even began;” (e) the EIS/EIRs utilize improper definitions of proper purpose by using the “healthy river” standard rather than an objective standard; and, (f) the final EIS/EIR, or a supplement thereto, does not analyze the impact of implementation of the preferred alternative on California’s current energy crisis; and, (4)violation of the Administrative Procedure Act (“APA”), claiming that the TRFEFR’s recommendations adopted by the ROD are not based on the best available scientific data in violation of CVPIA § 3406(b)(23)(A), and its conclusions are arbitrary and capricious. Doc. 35. The Yurok Tribe intervened as a defendant on January 19, 2001. On February 8, 2001, the Northern California Power Agency (“NCPA”) and the Sacramento Municipal Utility District (“SMUD”) intervened as plaintiffs over the opposition of the Hoopa Valley and Yurok Tribes. The water districts filed a motion for preliminary injunction on January 5, 2001 and NCPA and SMUD moved for a preliminary injunction on February 6, 2001. A preliminary injunction issued on March 22, 2001 limiting the amount of water releases under the ROD to a total of 368,600 AF. All other aspects of the ROD’s Trinity River restoration plan were not enjoined. The decision, made without a complete administrative record, found plaintiffs were likely to succeed on the merits of their claim because the two BioOps imposed significant environmental impacts that were not analyzed in a supplemental EIS/EIR (“SEIS”) and the California energy crisis was a changed circumstance that should have been evaluated, but was not. On September 7, 2001, the United States, the water districts, NCPA, and SMUD, but not the Tribes, entered into and filed a stipulation to stay the proceedings in this case until Interior issued a revised ROD following completion of an SEIS. The federal defendants and plaintiffs agreed that the preliminary injunction would remain in place unless otherwise ordered by the court. The defendant-in-tervenor Tribes did not oppose the stay order, but did not join the stipulation because of paragraphs eight and nine which they believed demanded actions not required by law. However, they found the proposed order “unobjectionable.” On October 8, 2001, the court signed the stay order. On March 14, 2002, the Tribes moved to modify the preliminary injunction for water year 2002 alleging changed circumstances. On April 19, 2002, the preliminary injunction was modified to authorize the release of 468,600 AF of water into the Trinity River for the purposes of fishery protection and restoration for water year 2002. All other aspects of the Trinity River restoration plan were not subject to the injunction. The order modifying the preliminary injunction also vacated the stay and set a schedule for disposition of the case on the merits. To the court’s knowledge, work on the SEIS ceased. On June 11, 2002 the water districts, NCPA, SMUD, the federal defendants, and the Hoopa Valley Tribe filed cross-motions for summary judgment. The Yu-rok Tribe did not file a cross-motion for summary judgment but opposed the water districts’, NCPA’s, and SMUD’s motions. III. LEGAL STANDARD Summary judgment is warranted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.” Fed.R.Civ.P. 56(c); California v. Campbell, 138 F.3d 772, 780 (9th Cir.1998). The evidence must be viewed in light most favorable to the nonmoving party. Indiana Lumbermens Mut. Ins. Co. v. West Oregon Wood Products, Inc., 268 F.3d 639, 644 (9th Cir.2001). The moving party bears the initial burden of demonstrating the absence of a genuine issue of fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.2001). If the moving party fails to meet this burden, “the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102-03 (9th Cir.2000). However, if the nonmoving party has the burden of proof at trial, the moving party must only show “that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden of proof, the nonmoving party must produce evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evi-dentiary burden the law places on that party. Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir.1995). The nonmoving party cannot simply rest on its allegations without any significant probative evidence tending to support the complaint. Devereaux, 263 F.3d at 1076. [T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548. IV. DISCUSSION Plaintiffs and plaintiff-intervenors move for summary judgment on five NEPA issues: 1) the Preferred Alternative’s impact on the ESA-listed species in the Sacramento River and Delta were not adequately assessed; 2) the impacts of mitigation measures mandated by the BioOps were not properly assessed; 3) the impact of the Preferred Alternative on power system reliability was not adequately assessed; 4) Interior improperly applied an unreasonably narrow definition of EIS purpose and artificially restricted the range of alternatives considered under NEPA; and 5) Interior’s environmental assessment was too late. They also move for summary judgment on two ESA issues: 1) the USFWS BioOp unlawfully mandates major changes to CVP operations; 2) the NMFS BioOp arbitrarily mandates implementation of the ROD flows in the absence of the lethal take of Trinity River fish. Finally, plaintiffs move for summary judgment arguing the Secretary’s actions in authorizing the ROD flows were arbitrary and capricious in that there was no adequate basis in experience or science for determining that the adopted permanent flows are necessary or beneficial. The Hoopa Valley Tribe opposes Plaintiffs’ summary judgment motions arguing: 1) further NEPA review is irreconcilable with the CVPIA; and 2) the ROD is neither arbitrary, capricious, nor contrary to law. The Tribe also argues that the CVPIA and equity principles limit the available remedies. The federal defendants move for summary judgment arguing they have complied: 1) with NEPA; and, 2) with the ESA. The Yurok Tribe argues that the federal government’s trust responsibility requires restoration be given “paramount consideration.” A. APPLICABILITY OF FURTHER NEPA REVIEW UNDER CVPIA § sm(b)(2S) The Hoopa Tribe contends that the Secretary has no discretion to delay implementing the flow study recommendations because the Tribe formally concurred in those recommendations in December 2000 and under CVPIA § 3406(b)(23) the Secretary no longer has discretion after such a concurrence. NEPA requires federal agencies, to the fullest extent possible, to “include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment,” an environmental impact statement that includes the impacts of and alternatives to the proposed action. 42 U.S.C. § 4332(2)(C). NEPA is given the broadest possible interpretation. Westlands Water Dist. v. Natural Resources Defense Council, 43 F.3d 457, 460 (9th Cir.1994). The phrase “to the fullest extent possible” is not “accidental nor hyperbolic.” Flint Ridge Dev. Co. v. Scenic Rivers Ass’n of Oklahoma, 426 U.S. 776, 787, 96 S.Ct. 2430, 49 L.Ed.2d 205 (1976). Instead it directs that environmental factors be considered and “not be shunted aside in the bureaucratic shuffle.” Id. There are however, exceptions to this rule. Where there is a clear and unavoidable conflict in statutory authority, NEPA gives way. Id. at 788, 96 S.Ct. 2430. The test is “whether, assuming an environmental impact statement would otherwise be required in this case, requiring the Secretary to prepare such a statement would create an irreconcilable and fundamental conflict with the Secretary’s duties.” Id.; Westlands, 43 F.3d at 460 (“Only if there is an ‘irreconcilable’ conflict between the statute and NEPA will the requirements of NEPA not apply.”). The Hoopa Valley Tribe contends that there are two ways in which NEPA is irreconcilable with CVPIA § 3406(b)(23): 1) the statutorily mandated time period is too short to allow compliance; and 2) the Secretary lacks discretion. 1. Statutorily Mandated Time Frame There is an irreconcilable conflict when a statute mandates a fixed time period for implementation and this time period is too short to allow the agency to comply with NEPA. Flint Ridge, 426 U.S. at 791, 96 S.Ct. 2430; Westlands, 43 F.3d at 460. In Flint Ridge, the Supreme Court found that a 30-day window within which the Secretary of Housing and Urban Development had to act, was too short to allow compliance with NEPA and this caused irreconcilable conflict. In Westlands, the Ninth Circuit held CVPIA §§ 3406(b)(2) and (d)(1) were irreconcilable with NEPA because upon enactment, the statute directed the Secretary to take immediate action. Westlands, 43 F.3d at 460. Section 3406(b)(23) of the CVPIA provides: (A) by September 30, 1996, the Secretary, after consultation with the Hoopa Valley Tribe, shall complete the Trinity River Flow Evaluation Study currently being conducted by the United States Fish and Wildlife . Service under the mandate of the Secretarial Decision of January 14,1981 ...; and (B) not later than December 31, 1996, the Secretary shall forward the, recommendations of the Trinity River Flow Evaluation Study, referred to in subpar-agraph (A) of this paragraph, to [Congress]. If the Secretary and the Hoopa Valley Tribe concur in these recommendations, any increase to the minimum Trinity River instream fishery releases established under this paragraph and the operating criteria and procedures referred to in subparagraph (A) shall be implemented accordingly. If the Hoopa Valley Tribe and the Secretary do not concur, the minimum Trinity River in-stream fishery releases established under this paragraph shall remain in effect unless increased by an Act of Congress, appropriate judicial decree, or agreement between the Secretary and ■ the Hoopa Valley Tribe. Pub.L. No. 102-575, § 3406(b)(23), 106 Stat. 4600, at 4720-21. The Hoopa Tribe concedes that the four years between the 1992 enactment of the CVPIA and the 3406(b)(23)(A) September 30, 1996 deadline provide sufficient time for the Secretary to comply with NEPA. The Tribe argues that implementation of restoration action cannot be further postponed for additional NEPA review because: 1) the deadlines in Section 3406(b)(23) have already passed; and 2) Congress directed that review should end once the Tribe concurred in the recommendation. In Flint Ridge, the Supreme Court held the phrase “to the fullest extent possible” in 42 U.S.C. § 4332 was not to be used to shunt aside consideration of environmental factors “in the bureaucratic shuffle.” Flint Ridge, 426 U.S. at 787, 96 S.Ct. 2430. “The purpose of the new language is to make it clear that each agency of the Federal Government Shall comply with the directives set out in (§ 102(2)) Unless [sic] the existing law applicable to such agency’s operations expressly prohibs [sic] or makes full compliance with one of the directives impossible .... [T]he language in section 102 is intended to assure that all agencies of the Federal Government shall comply with the directive set out in said section ‘to the fullest extent possible’ under their statutory authorizations and that no agency shah utilize an excessively narrow construction of its existing statutory authorizations to avoid compliance.” Id. at 787-88, 96 S.Ct. 2430 (quoting 115 Cong. Rec. 39703 (1969) (House conferees)). Section 3406(b)(23), enacted in 1992, gave the Secretary four years to complete and present to Congress a flow and restoration study of the Trinity River originally called for by 1984 legislation, which had been in progress for eleven years (since 1981 when the original restoration studies commenced). By the 1996 statutory deadline, the Secretary had taken 15 years to prepare for and complete the NEPA process. As the federal defendants admitted at oral argument, CVPIA § 3406(b)(23) does not “irreconcilably and fundamentally conflict” with NEPA nor is there a clear or unavoidable conflict. See Jones v. Gordon, 792 F.2d 821, 826 (9th Cir.1986) (“Flint Ridge applies only when a conflict is ‘clear and unavoidable’ and ‘irreconcilable and fundamental.’ ”). Compliance with both statutes was entirely possible. The delay or inactions of the federal defendants cannot create a statutory conflict. See Fore-laws on Board v. Johnson, 743 F.2d 677, 683-85 (9th Cir.1984) (holding that agency’s failure to initiate EIS within 9-month statutory deadline for action did not excuse NEPA compliance under Flint Ridge). If the requirements of NEPA are to have meaning, federal agencies cannot be excused from compliance simply because they move at glacial speed. To apply the Flint Ridge exception to this case, where the federal agency had four years to comply with NEPA and there was well-known statutory concern for compliance with environmental laws, would negate NEPA review whenever there is a statutory time deadline for action. Federal agencies could avoid NEPA compliance simply by waiting long enough. This defeats the congressional public scrutiny and participation purposes embodied in NEPA. The Flint Ridge exception does not apply. The Hoopa Tribe argues that once it concurred in the recommendations, immediate implementation was mandatory, and under Westlands there was no more time to comply with the NEPA requirements. Section 3406(b)(23) is not directly analogous to Sections 3406(b)(2) and (d)(1). Sections (b)(2) and (d)(1) require the Secretary to take action to operate the CVP as directed immediately upon enactment. Section (b)(23) gave the Secretary four years to act. The Tribe argues that the correct performance time period is not the time between enactment and the deadline, but between the Tribe’s concurrence, signing of the- ROD and implementation of the flow and restoration recommendations. This argument ignores that the Secretary had ample time to complete the NEPA analysis within the statutorily allotted time. If it was possible for the Secretary to perform a NEPA analysis, NEPA and Flint Ridge require it be done. That the deadline passed does not abrogate this duty. See Forelaws, 743 F.2d at 683-86 (holding EIS required despite the fact that the statutory deadline for action had passed). Flint Ridge does not apply to this case. Section (b)(23) requires both the Hoopa Valley Tribe’s and the Secretary’s concurrence. If the Secretary did not lawfully concur, the prerequisites for increasing flows- under (b)(23) were not met, whether or not the Hoopa Valley Tribe concurred. Even if (b)(23) did preclude further NEPA analysis after concurrence, joint concurrence was required. 2. Secretarial Discretion The Tribe maintains the Secretary has no discretion not to implement the flow recommendations after the Tribe concurred. Where a federal agency lacks the ability to meaningfully influence a particular action, the procedural requirements of NEPA do not apply. Sierra Club v. Babbitt, 65 F.3d 1502, 1512-13 (9th Cir.1995). “[NEPA’s] procedural requirements are triggered by a discretionary federal action.” Id. at 1512. Section 3406(b)(23) has several requirements: 1) the TRFES had to be completed by September 30, 1996; 2) not later than December 31, 1996 the Secretary had to forward the TRFES recommendations to several congressional committees; 3) if the Secretary and the Hoopa Valley Tribe concurred in the recommendations they were to be implemented accordingly. The automatic, non-discretionary language was only operative after both the Hoopa Valley Tribe and the Secretary concurred. The Secretary had full discretion under Section 3406(b)(23), before any concurrence, to scope, analyze, and decide what flow recommendations to make to Congress. During the four year statutorily authorized period for study and formulation of such recommendations there was ample time to conduct a NEPA review. The TRFER was not completed until June 1999. The EIS process commenced in 1986. The DEIS was released October 19,1999; public comment was extended through January 20, 2000. The TRFER was forwarded to Congress March 10, 2000; Biological Opinions were issued October 12, 2000, and the FEIS/R was completed and published November 17, 2000. The tribe signed the ROD December 19, 2000. The lack of discretion exception to NEPA compliance does not apply. The Secretary was required to comply with NEPA before making flow recommendations, a major federal action which had the potential to adversely effect the environment. There was adequate time to complete NEPA review before the ROD was signed. The TRFER could not be implemented before that time. The Hoopa Valley Tribe’s motion for summary judgment, on the issue that compliance with NEPA is not required because § 3406(b)(2) is irreconcilably inconsistent with NEPA, is DENIED. B. NEPA CLAIMS NEPA is the “the basic national charter for protection of the environment.” Churchill County v. Norton, 276 F.3d 1060, 1072 (9th Cir.2001), amended by 282 F.3d 1055 (9th Cir.2002) (quoting Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1215 (9th Cir.1998)). It is designed to ensure that federal agencies will have available, and carefully consider, detailed information concerning significant public impacts. Id. It “guarantees that the relevant information will be made available to the larger public audience.” Id. (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). “NEPA also ‘emphasizes the importance of coherent and comprehensive up-front environmental analysis to ensure informed decision making to the end that the agency will not act on incomplete information, only to regret its decision after it is too late to correct.’ ” Id. at 1072-73 (quoting Blue Mountains, 161 F.3d at 1216) (internal citation omitted). NEPA requires federal agencies to prepare an EIS for “every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). Because NEPA does not contain a judicial review provision, an agency’s compliance with NEPA is reviewed under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A). Ka Makani 'O Kohala Ohana Inc. v. Water Supply, 295 F.3d 955, 959 (9th Cir.2002). A decision not to prepare an EIS is reviewed under the arbitrary-and-capricious standard, unless the agency does not perform an environmental assessment. Id.; Churchill County, 276 F.3d at 1071. If there is no environmental assessment, the reasonableness standard is used. Ka Makani, 295 F.3d at 958. The adequacy of an EIS is reviewed under the “rule of reason” standard. Churchill County, 276 F.3d at 1071. “Under this standard, we ask ‘whether an EIS contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences.’ ” Id. (quoting Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (9th Cir.1974)). To determine whether an EIS was reasonably thorough courts must make “a pragmatic judgment whether the EIS’s form, content and preparation foster both informed decision-making and informed public participation.” Id. (quoting California v. Block, 690 F.2d 753, 761 (9th Cir.1982)). When deciding NEPA claims, a court may not impose its own notion of which procedures are best. Id. at 1072. Instead, a court’s role is to take “a hard look.” Id. “[NEPA] is not meant to ‘mandate particular results’ but to provide a process to ensure that federal agencies take a ‘hard look’ at the environmental consequences of proposed acts. When an agency makes a decision subject to the NEPA’s procedural requirements, ‘the only role for a court is to insure that the agency has considered the environmental consequences; it cannot interject itself within the area of discretion of the executive Tillamook County v. U.S. Army Corps of Engineers, 288 F.3d 1140, 1143-44 (9th Cir.2002) (quoting Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 62 L.Ed.2d 433 (1980)). Courts must strictly interpret the procedural requirements of NEPA “ ‘to the fullest extent possible’ consistent with the policies embodied in NEPA.” Churchill, 276 F.3d at 1072. Plaintiffs move for summary judgment on six NEPA issues: 1) the Preferred Alternative’s impact on the ESA-listed species in the Sacramento River and Delta was not adequately assessed; 2) the impacts of mitigation measures mandated by the BioOps were not properly assessed; 3) the impacts of the Preferred Alternative on power system reliability were not adequately assessed; 4) Interior improperly applied a wrongfully narrowed EIS purpose to artificially restrict the range of alternatives considered under NEPA; 5) Interior failed to consider and adopt an integrated management alternative; and, 6) the EIS was performed too late. 1. Assessment of Sacramento River and Delta ESA-Listed Species The claim the DEIS does not analyze the effects of the Preferred Alternative on endangered fish species in the Sacramento River and Delta, and that the issuance of the BioOps did not cure the violation, centers on the contention the public did not have an opportunity to review and comment on the BioOps’ analyses. The Preferred Alternative recognizes two overriding objectives: increasing anadromous natural fish production and allowing continued water exports and flood control. EIS 2-3. One screening opportunity adopted as part of the Preferred Alternative is to balance environmental and social beneficial and adverse impacts across the Trinity River Basin, Lower Klamath River Basin, Coastal Area, and Central Valley Basin. Id. Plaintiffs advance three contentions: 1) the DEIS did not discuss the Preferred Alternative’s direct effects and significance on the Sacramento River and Delta ESA-listed species; 2) when notified of the deficiency, Interior failed to recirculate or adequately supplement the DEIS; and, 3) the addition of language from the BioOps to the FEIS did not cure the DEIS’ deficiencies. The federal defendants and the Hoopa Tribe argue the DEIS contained adequate analysis of the Preferred Alternative’s impact on the Sacramento ESA-listed species, that the DEIS did not need to be recirculated, and that the inclusion of additional information in the FEIS was sufficient. a. DEIS Analysis on Sacramento ESA-Listed Species Plaintiffs claim, “while the DEIS admits that the Preferred Alternative could cause ‘significant impacts’ associated with the ‘increased frequency of Sacramento basin temperature and carryover storage violations,’ the DEIS does not analyze those impacts. 18 AR 10653. Rather, it states that these impacts “would need to be evaluated by the NMFS pursuant to ESA.’ ” 18 AR 10653. Doc. 244 at 5:3-6 (NCPA P & A’s). Defendants point to numerous sections of the DEIS that analyze these impacts. There is some merit to each position. The DEIS does analyze the impact of the Preferred Alternative on the ESA-listed species in the Sacramento River and Delta. DEIS at 3-167-169 3-172-173, 3-175-177, 3-179-184, B-60-61, B-65, B-74-75, B-77-78, B-89-90. “Compared to existing conditions, the Preferred Alternative would adversely affect fall, winter, and spring chinook salmon by significantly increasing mortality of early life stages of these species within the upper Sacramento River.” DEIS, at 3-178. “[Djuring all months from February through June, Delta outflows were greater than 10 percent of the years simulated (Table 3-16). Those reductions in Delta outflow may be significant and may adversely affect habitat for Delta species.” DEIS, at 3-184. The DEIS does not consider or identify mitigation measures for the admitted significant impacts to those species, except to specify “mitigation for impacts to the Delta smelt and Sacramento splittail would consist of consulting with the Service on impacts and implementing any ‘required conservation measures.’ ” DEIS, at 3-184. This defers consideration of mitigation efforts to the BioOps. “In that the potential adverse effects to listed species identified in the DEIS/EIR are the subject of consultation under Section 7 of the Endangered Species Act (ESA), with both the U.S. Fish and Wildlife Service (Service) and National Marine Fisheries Service (NMFS), it was entirely appropriate to defer describing specific minimization actions until the consultations had been completed.” FEIS, D2-65. Consideration of the impacts, not only on Delta species, but all other secondary impacts which would result, were necessarily deferred to future analysis. The Council on Environmental Quality (CEQ) regulations, which implement NEPA, require a DEIS be prepared and circulated prior to the issuance of an FEIS. 40 C.F.R. § 1502.9(a). The DEIS “must fulfill and satisfy to the fullest extent possible the requirements established for final statements.” Id. “If a draft statement is so inadequate as to preclude meaningful analysis, the agency shall prepare and circulate a revised draft of the appropriate portion.” Id. The CEQ regulations further direct that a DEIS or FEIS be supplemented if “there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(ii). CEQ regulations provide that “[t]o the fullest extent possible, agencies shall prepare draft environmental impact statements concurrently with and integrated with environmental impact analyses and related surveys and studies required by ... the Endangered Species Act of 1973, and other environmental review laws and executive orders.” 40 C.F.R. § 1502.25(a). The question here is whether the DEIS’s deferral to future BioOps, rather than identifying impacts and discussing mitigation measures in the DEIS, fails to provide “meaningful analysis.” An EIS must contain a discussion of possible mitigation measures. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351-52, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989); Okanogan Highlands Alliance v. Williams, 236 F.3d 468, 473 (9th Cir.2000); Neighbors of Cuddy Mountain v. U.S. Forest Service, 137 F.3d 1372, 1380 (9th Cir.1998). “Implicit in NEPA’s demand that an agency prepare a detailed statement on ‘any adverse environmental effects which cannot be avoided should the proposal be implemented,’ is an understanding that the EIS will discuss the extent to which adverse effects can be avoided.” Robertson, 490 U.S. at 351-52, 109 S.Ct. 1835 (quoting 42 U.S.C. § 4332(C)(ii)) (internal citations omitted). “Without such a discussion, neither the agency nor other interested groups and individuals can properly evaluate the severity of the adverse effects.” Id. Failure to discuss possible mitigating measures precludes the parties from meaningful analysis and Interior did not circulate a revised draft. b. Timing of the EIS Plaintiffs’ assertion that a final EIS should have been completed before the Trinity River flow study was submitted to Congress is answered by Interior’s position that the EIS was programmatic and project specific and centered on the recommendations for restoring Trinity River flows and related measures to rehabilitate the fishery, which in turn had to be reviewed by Congress and then concurred in by the Hoopa Valley Tribe. FEIS pp. 1-3. Title 40 C.F.R. § 1508.25(a)(2) authorizes a programmatic EIS for “Cumulative actions, which, when viewed with other proposed actions, have cumulatively significant impacts and therefore should be discussed in the same impact statement.” Interior correctly maintains that the flow study was one of several related actions appropriately discussed in a single FEIS which incorporated all components of the Trinity River restoration plan and culminated in the ROD, for which the FEIS was prepared. Requiring a separate EIS for each component of a single major federal action could unduly delay and overtax governmental resources. Marsh v. Oregon Natural Resources Council, 490 U.S. 360-71, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). However, where, as here, most of the Agency’s discussion and response to disputed issues of impacts is not presented until long after the public comment period on the DEIS closed and substantial issues were raised which were not subjected to informed public participation, the NEPA process broke down. c. Inclusion of Mitigation Factors in FEIS Plaintiffs argue that the inclusion of mitigation factors in the FEIS did not correct the deficiency in the DEIS because the FEIS mitigation factors were taken from the two BioOps which were excluded from public scrutiny and not subjected to public comment. Plaintiffs request the ROD be set aside. NEPA serves dual purposes: “It ensures that the agency, in reaching its decision, -will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision.” Robertson, 490 U.S. at 349, 109 S.Ct. 1835 (“It gives the public the assurance that the agency has indeed considered environmental concerns in its decisionmaking process, and, perhaps more significantly, provides a springboard for public comment.”) (internal quotations and citations omitted); Northwest Res. Info. Ctr., Inc. v. Nat’l Marine Fisheries Serv., 56 F.3d 1060, 1064 (9th Cir.1995) (“The purposes of an EIS are to provide decisionmakers with sufficiently detailed information to aid in determining whether to proceed with the action in light of its environmental consequences and to provide the public with information and an opportunity to participate in the information gathering process.”). Inclusion of new information in the FEIS (bypassing public input) does not automatically invalidate the FEIS. The CEQ regulations provide a procedure by which new information in an FEIS may be subjected to NEPA review. 40 C.F.R. § 1502.9(c). That procedure determines whether information is significant enough to warrant additional public comment, as part of the flexibility agencies have in responding to public concerns. See California v. Block, 690 F.2d 753, 771 (9th Cir.1982) (“To effectuate [the purpose of public comment], agencies must have some flexibility to modify alternatives canvassed in the draft EIS to reflect public input.”). Section 1502.9(c) provides that an agency shall prepare a supplement to a draft or final EIS if: 1) there are substantial changes in the proposed action that are relevant to the environmental concerns; or 2) there are environmentally relevant, significant, new circumstances or information that bear on the proposed action or its impacts. 40 C.F.R. § 1502.9(c)(1). “[A]n agency need not supplement an EIS every time new information comes to light after the EIS is finalized. To require otherwise would render agency decisionmaking intractable, always awaiting updated information only to find the new information outdated by the time a decision is made.” Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 373, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). However, “[i]f there remains major Federal action to occur, and the new information is sufficient to show that the remaining action will affect the quality of the human environment in a significant manner or to a significant extent not already considered a supplemental EIS must be prepared.” Id. at 374, 109 S.Ct. 1851. New information is significant where it “provides a seriously different picture of the environmental landscape.” City of Olmsted Falls, Ohio v. Fed. Aviation Admin., 292 F.3d. 261, 274 (D.C.Cir.2002); see also Davis v. Latschar, 202 F.3d 359, 369 (D.C.Cir.2000) (“[Ojnly those changes that cause effects which are significantly different from those already studied require supplementary consideration.”) (internal quotations omitted). “[T]he key to whether a Supplemental Environmental Impact Statement is necessary is ... whether the proposed [work] will have a significant impact on the environment in a manner not previously evaluated and considered.” South Trenton Residents Against 29 v. Fed. Highway Admin., 176 F.3d 658, 663 (3d Cir.1999). An agency decision to forego completing an SEIS will not be set aside unless it is arbitrary and capricious. Friends of the Clearwater v. Dombeck, 222 F.3d 552, 556 (9th Cir.2000). “Review under this standard is to be searching and careful, but remains narrow, and a court is not to substitute its judgment for that of the agency.” Id. (quoting Mt. Graham Red Squirrel v. Espy, 986 F.2d 1568, 1571 (9th Cir.1993)). Here, as discussed below, Interior decided all the “new” information was not significant enough to warrant a supplemental EIS or “recirculation.” “Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983); O’Keeffe’s, Inc. v. U.S. Consumer Product Safety Comm’n, 92 F.3d 940, 942 (9th Cir.1996). “[T]he agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs., 463 U.S. at 43, 103 S.Ct. 2856; Dioxin/Organochlorine Ctr. v. Clarke, 57 F.3d 1517, 1525 (9th Cir.1995). In this ease, Interior discussed in the FEIS whether an SEIS was necessary based on the new information. It concluded without analysis or factual support, that the new information in the FEIS was “mainly for clarification purposes and does not represent significant new information requiring recirculation.” FEIS D2-71. Evaluating the significance of the new information under the “seriously different picture” standard, Interior concluded that “none of the new information in the Final EIS rises to that level.” FEIS D2-72. This legal conclusion is wrong for the DEIS as to Delta-Sacramento River species, BioOp RPMs, range and substance of a reasonably integrated management alternative, and hydropower impacts, and because the DEIS deferred all these issues, the public notice and comment period closed January 20, 2000, and the FEIS issued November 17, 2000, does not take a hard look at any of the issues raised. Interior does not discuss why it believes that the “new information” is not significant and none of its responses in the FEIS analyzes the merits of new mitigation measures; instead it offers an argumentative justification for avoiding supplemental considerations by its legal conclusion that all the issues raises are insignificant. Plaintiffs gave notice of concerns about impacts on such species and related issues in the public comment period. 18 AR 10653, 29 AR 17492-93, 19537-38. Because Interior did not critically examine the relevant data or articulate the basis for its decision not to supplement the EIS, which did not identify any specific mitigation measures or probable secondary effects of flow increases on Sacramento River and Delta species, but rather deferred to future BioOps and/or ESA reeonsultations, the significance of this failure must be analyzed. California v. Block analyzes the need for a supplemental DEIS to address information discussed for the first time in an FEIS and holds that although agencies must have some flexibility in modifying alternatives contained in a DEIS, an EIS must provide the public with sufficient information to permit meaningful consideration. Block, 690 F.2d at 771-72. “The EIS process should serve both to alert the public of what the agency intends to do and to give the public enough information to be able to participate intelligently in the EIS process.” Id. at 772. Here the additional information, added after the DEIS was circulated, addressed mitigation factors. The DEIS does not discuss mitigation factors related to the Sacramento River and Delta ESA-listed species nor the secondary effects of increased flows on other CVP-water users. An EIS must contain a discussion of possible mitigation measures. Robertson, 490 U.S. at 351-52, 109 S.Ct. 1835; Okanogan, 236 F.3d at 473; Neighbors of Cuddy Mountain, 137 F.3d at 1380; see also 40 C.F.R. § 1502.14(f) (mitigation measures shall be included in discussion of alternatives); 40 C.F.R. § 1502.16(h) (mitigation measures required). “Implicit in NEPA’s demand that an agency prepare a detailed statement on ‘any adverse environmental effects which cannot be avoided should the proposal be implemented/ is an understanding that the EIS will discuss the extent to which adverse effects can be avoided.” Robertson, 490 U.S. at 351-52, 109 S.Ct. 1835 (quoting 42 U.S.C. § 4332(C)(ii)) (internal citations omitted). “[0]mission of a reasonably complete discussion of possible mitigation measures would undermine the ‘action-forcing’ function of NEPA. Without such a discussion, neither the agency nor other interested groups and individuals can properly evaluate the severity of the adverse effects.” Id. Block requires that a supplemental EIS be prepared if the public was not given sufficient information to intelligently participate in the NEPA process. Block, 690 F.2d at 771-72. Robertson holds that failure to include mitigation measures prevents the public from properly evaluating the proposed action. Robertson, 490 U.S. at 351-52, 109 S.Ct. 1835. Under the Block test, the inclusion of previously undisclosed mitigation measures is significant enough to require an SEIS. Courts have also determined that an SEIS is required if the changes cause effects which are significantly different from those already studied.. Davis, 202 F.3d at 369. Here, the DEIS recognized that the impact on Sacramento River and Delta ESA-listed species, salmon, Sacramento splittail, and Delta smelt, was significant, but deferred determination of any mitigation measures for future consideration. The failure to analyze, or even identify, mitigation measures to address changes that will be caused by the new flow regime and their effects, have an undetermined potential to be different from those already studied. See Robertson, 490 U.S. at 352, 109 S.Ct. 1835 (“An adverse effect that can be fully remedied by, for example, an inconsequential public expenditure is certainly not as serious as a similar effect that can only be modestly ameliorated through the commitment of vast public and private resources.”). The omission of discussion of mitigation measures foreclosed any public input on the issues of whether and what CVP operations management alternatives existed and were feasible; and whether alternate water sources existed or if reduced flows could reduce the impact on species and other CVP users. Two of the factors listed in 40 C.F.R. § 1508.27, that affect whether action is significant, are the likelihood that the action will be highly controversial, 40 C.F.R. § 1508.27(b)(4), and the degree to which the action may adversely affect an endangered species, 40 C.F.R. § 1508.27(b)(9). Interior knew that any decision it made relating to increased permanent Trinity River flow releases and its effects on the Sacramento and Delta ESA-listed species and secondary effects on power generators, municipal, industrial, and agricultural water users, was going to be controversial and significant within the meaning of 40 C.F.R. § 1502.9(b)(2), (3), (4), and (7). Prior to the issuance of the BioOps or the FEIS, San Luis submitted comments criticizing the DEIS on these grounds and Westlands sent a 60-day notice of intent to sue unless formal ESA Section 7 consultation was undertaken. Interior also had specific knowledge that the new information was related to how Sacramento river and south of the Delta endangered species would be affected by increased TR flows. Defendants’ collective response in contending Interior was not arbitrary or capricious, is to ignore the absence of consideration of mitigation measures in the DEIS: their identity, significance, effectiveness, effects, and controversy over their substance and range. Any discussion was included for the first time in the FEIS without public input and used as a post hoc rationalization for the decision not to supplement the EIS on the grounds that species’ and other impacts resulting from the Preferred Alternative are not significant. Applicable NEPA regulations require more, see 40 C.F.R. § 1502.9(c), and as to revised portions of the DEIS, see 40 C.F.R. § 1502.9(a). Anecdotal evidence indicates Interior chose to assume the risk of apparent NEPA violations after the March 10, 2000, ESA notice. 7 AR 3865, 3894, 10 AR 20174, (Ex. A to Robinson Dec.). Interior as much as admits it could not cure the NEPA violations that had occurred as of that time. 2. Effect of BioOps Plaintiffs argue that the ROD should be set aside because: 1) Interior failed to assess the environmental impacts of the BioOps’ mitigation measures in the FEIS; and, 2) even if Interior did analyze the RPMs, inclusion in the FEIS requires an SEIS. Plaintiffs argument implicates two of the BioOps’ reasonable and prudent measures (“RPMs”): 1) The USFWS’ RPM: Reclamation shall minimize the effects of reoperating the CVP resulting from the implementation of the Preferred Alternative within the Trinity river basin on listed fish in the Delta.... These terms and conditions are non-dis