Full opinion text
ORDER ON MOTION FOR SUMMARY JUDGMENT RELATING TO THE ENDANGERED SPECIES ACT KARLTON, Senior District Judge. Pending before the court is plaintiffs’ motion for summary adjudication as to liability on their claims relating to the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531 et seq Plaintiffs allege that the United States Bureau of Reclamation (“Bureau” or “BOR”), the National Marine Fisheries Service (“NMFS”), and the Fish and Wildlife Service (“FWS”) failed to examine critical issues in their biological opinions before executing twenty-five year water contracts in late 2000 for the delivery of California Water Project water to over two dozen irrigation and water districts in the Friant, Hidden, and Buchanan units. The Friant defendants bring a cross-motion for summary adjudication and the federal defendants have filed an opposition to the plaintiffs’ motion. I. UNDISPUTED FACTS A. BACKGROUND The Bureau’s operation of Friant Dam dried up many miles of the San Joaquin River, destroying the historic fish populations. Pis.’ SUF 1, citing NRDC v. Patterson, 333 F.Supp.2d 906, 924 (E.D.Cal. August 27, 2004). The Bureau’s operation of Friant Dam also extirpated numerous species of native fish from the upper San Joaquin River, including spring-and fall-run Chinook salmon. The operation of the Dam has supported irrigated agriculture through a large swath of the San Joaquin Valley. Pis.’ SUF 2, 3, citing NRDC v. Patterson, id. The Bureau delivers the diverted waters of the San Joaquin to more than two dozen irrigation and water agencies that are represented in this litigation by the Friant defendants. It presently makes these deliveries under long-term water supply contracts that provide for the Bureau annually to divert, impound, and deliver up to 2.14 million acre-feet to the contractors per year. Pis.’ SUF 4. After a number of renewed contracts were rescinded as a result of this court’s order in 1997 (affirmed by the Ninth Circuit in 1998), the Bureau delivered water to the Friant contractors pursuant to short term, or “interim” contracts, which plaintiffs did not challenge. Pis.’ SUF 5. B. RENEWAL OF CONTRACTS IN 2001 & AGENCY CONSULTATION UNDER ESA 1. ESA Consultation on the Friant District Contracts In late 2000, the Bureau determined to execute a new round of water contracts. Pls.’ SUF 6, citing FWS AR 06017924. In a July 2000 electronic-mail (“e-mail”) message from Frank Michny, an employee of the Bureau, to Cay Goude, a FWS employee, explained that “everyone in the dept up to/including Leshy want [sic] the contract renewals this year.” Pis.’ SUF 6, citing FWS AR 0617394. FWS issued its biological opinion (“BiOp”) on these contracts on January 19, 2001 and NMFS issued its biological opinion on the following morning, January 20, 2001. In a letter dated October 30, 2000, the Bureau requested that NMFS concur in a Section 7 determination that the Friant contracts were not likely to adversely affect listed species. NMFS refused to do so, forcing the Bureau to request formal consultation for the long-term renewal of the Central Valley Project water service contracts on January 5, 2001. Pis.’ SUF 7, citing NMFS AR 000526. As of January 5, 2001, the Bureau had not provided a final biological assessment on the Friant contracts. The Bureau provided the biological assessment on January 17, 2001. Pls.’ SUF 9, citing FWS AR 0823519. On January 19, 2001, the same day that the FWS BiOp was issued, FWS senior biologist Dr. David Wright e-mailed Michael Fris, another employee at FWS, discussing “possible holes and weaknesses in our crash BO,” Pis.’ SUF at 11, citing FWS AR 01802983, 018023984, including inadequate time to do a consultation, inadequate biological assessments, a track record of lack of compliance by the Bureau of Reclamation, concern that the contracts are inconsistent with CVPIA, and lack of coordination with NMFS. Id. Dr. Wright’s supervisor, Michael Thabault, forwarded Dr. Wright’s memorandum up the chain of command to Wayne White “in the interest of the deliberative process,” and so that he could “be aware of the vulnerabilities before signing” [the biological opinion]. Pis.’ SUF 11, citing FWS AR 0823985. That same day, on January 19, 2001, Dr. Wright again wrote his colleague, Michael Fris, and asked him to “slam out the Conclusion section” while he was “polishing Effects.” Pis.’ SUF 12, citing FWS AR 0823988. 2. ESA Consultation on the Hidden and Buchanan Districts Two of the Friant districts have additional contracts with the Bureau for delivery of water from CVP units. Pis.’ SUF 13. The contracts are referred to as Chowchilla Water District, Buchanan Unit (Contract # 14-06-200-3844A-LTR1) and the Madera Irrigation District, Hidden Unit (Contract # 14-06-200-4020A-LTR1). Id. The Hidden Unit contract provides for delivery of 24,000 acre-feet of water annually from Hensley Lake to Ma-dera Irrigation District, and the Buchanan Unit contract provides for delivery of 24,-000 acre-feet annually from Eastman Lake to Chowchilla Water District. Friant Defs.’ SUF 49, citing BORESA 041538. The renewal contracts concerning Hidden and Buchanan reservoirs were executed on February 14 and 15, 2001. a. NMFS’s Consultation The January 5, 2001 formal consultation request to NMFS on the Friant contracts had not encompassed the Hidden and Buchanan contracts. Pis.’ SUF 22, citing NMFS AR 000526. Nevertheless, on February 12, 2001, NMFS issued a letter in response to the Bureau’s request, that NMFS did, in fact, “consider the effects of the Hidden and Buchanan contracts in the Biological Opinion issued to the Bureau on January 20, 2001.” Pis.’ SUF 19, citing NMS AR 0008881, et seq., NMFS AR 000915, Pis.’ SUF 50, NMFS AR 000884, 000885, 000913, 000915. The Bureau did not request formal Section 7 consultation from NMFS on the Hidden and Buchanan contracts. Pis.’ SUF 52, citing NMFS AR 000526-27, 000885, 000881. No biological opinion was ever issued by NMFS on the Buchanan and Hidden units. Id. b. FWS’s Consultation An internal FWS memorandum noted that a FWS biologist “decided on 1-19-01 to not include Hidden and Buchanan Unit Contracts in the Friantr-Cross Valley Opinion due to insufficient time to make the necessary changes in the project description and effects.” Pis.’ SUF 14, citing FWS AR 09024885-86. After issuance of the FWS 2001 BiOp and NMFS 2001 BiOp, the Bureau notified FWS and NMFS that it had discovered an “administrative oversight” in which the tables provided to the Services as part of the project description for the consultation did not include the Hidden and Buchanan contracts. BORESA 045889, 041752. On February 1, 2001, the Bureau formally requested consultation with FWS on the Hidden and Buchanan contracts. Pis.’ SUF 19, citing FWS AR 09024891. On February 14, 2001, FWS issued a new biological opinion for the Hidden and Buchanan contracts. Pis.’ SUF 16. In an email dated February 2, 2001 FWS employee, Michael Fris, wrote that “I don’t think this is a big deal, because I think this opinion is pretty much written up thanks to the Friant opinion.” Pis.’ SUF 17, citing FWS AR 09025034. 3. FWS’s and NMFS’s 2001 Biological Opinions a. The Services’ “Adverse Modiñcation” Analysis i. NMFS The entire discussion of the effects and cumulative effects of the long-term Friant contracts in NMFS’ January 20, 2001 biological opinion spans three pages. In these pages, NMFS acknowledged the potential impact of Friant diversions on downstream fish, including the endangered Sacramento River winter-run Chinook salmon. The parties dispute whether NMFS’ 2001 biological opinion on the Friant contracts adequately addressed the recovery of winter-run Chinook salmon. Pis.’ SUF 21, citing NMFS AR 900-02, Fed. Defs.’ Response SUF 25, citing BORESA 041554-55, 029201-03. When the Bureau first attempted to renew the Friant contracts in 1991, it asked NMFS to concur that the contracts were not likely to adversely affect winter-run Chinook salmon. Pis.’ SUF 27, citing NRDC v. Houston, 146 F.3d 1118, 1123-4, 1126 (9th Cir.1998). By the time the Bureau initiated consultation on the present Friant contracts, NMFS had listed two new threatened species that inhabit the Delta, Central Valley Steelhead and Central Valley spring-run Chinook salmon. Pis.’ SUF 30, citing NMFS AR 000892. Although NMFS had begun consultations with the Bureau on CVP’s effects on spring-run Chinook salmon and steelhead, those consultations had not been completed as of January 20, 2001. PL’s SUF 31, citing NMFS AR 00084. ii. FWS At the time FWS issued its January 19, 2001 biological opinion, FWS had designated critical habitat for at least seven species considered in the 2001 consultation, the California condor, Delta smelt, Fresno kangaroo rat, least Bell’s vireo, Little Kern golden trout, Southwestern willow flycatcher, and the Valley elderberry longhorn beetle. Pis.’ SUF 24, citing FWS BiOp at 1-8 to -7, 3-23; BORESA 039978-80. FWS’s January 19, 2001 biological opinion mentioned “recovery” in connection with its effects analysis for the Delta Smelt, least Bell’s vireo, and the Southwestern willow fig catcher. Pis.’ SUF 25. The parties dispute whether the FWS’s 2001 BiOp drew a conclusion as to whether the Friant contracts, taken together with cumulative effects, would result in adverse modification of the critical habitat of the least Bell’s vireo. Pis.’ SUF 26, citing FWS BiOp at 3-23 to -24, FWS BiOp at 1-7, 5-7; BORESA 040068-69; BORESA AR 039980, 040128. B. THE SERVICES’ JEOPARDY ANALYSES 1. NMFS NMFS’s Biological Opinion concluded that “the renewal CVP long-term water service and repayment contracts for the twenty-eight Friant Division water contractors and the eight (8) Cross Valley water contractors for a period of 25 years is not likely to jeopardize the continued existence of winter-run Chinook salmon, spring-run Chinook salmon, or Central Valley steelhead, or result in the destruction or adverse modification of designated critical habitat for these species.” Friant Defs.’ SUF 29, citing BORESA 041555. 2. FWS On January 18, 2001, a meeting occurred between FWS biologists and their field supervisor, Wayne White, among others, where they discussed “status and some outstanding issues relevant to the Fri-ant/Cross Valley long-term contract renewals.” Pis.’ SUF 34, citing FWS AR 08023904. Dr. David Wright, the field supervisor of the Sacramento FWS office, advised Mr. White, who was in charge of FWS’ California and Nevada offices, that this “long-term contract renewal ... would be a jeopardy on indirect effects.” Mr. White rejected Dr. Wright’s analysis, however, because consideration of such effects “would be a hard sell outside California.” Another FWS biologist, Joy Winckel, asked Mr. White whether they could even consider jeopardy at all. Mr. White stated that it was “too late” to consider jeopardy. The opinion had to be rushed out the following day, Mr. White explained, to “avoid the opinion becoming even weaker under the incoming Bush administration.” Pis.’ SUF 35, citing FWS AR 08023904. In order “[t]o reach a no jeopardy conclusion,” FWS’s January 19, 2001 BiOp on the Friant contracts excluded certain actions which “will require separate determinations regarding their potential effects on threatened and endangered species and critical habitat pursuant to section 7 and/or section 10 of the ESA.” Pis.’ SUF 36, citing FWS 080240263. FWS had been concerned with operations and maintenance activities associated with contract deliveries. During the 1991 consultation on the now invalidated Friant long-term renewal contracts, for example, as well as during subsequent consultations on the interim contracts adopted after NRDC v. Houston, FWS’s biological opinion required the Bureau to commit to preparing guidance on how to conduct operations and maintenance activities so as to minimize endangered species impacts. The Bureau, however, was “behind the date identified in the Interim opinion” in implementing the operation and maintenance plan. Upon completion of consultation on the contracts at issue here, FWS again required the Bureau to commit to completing site-specific operations and management plans within one year of the January 19, 2001 biological opinion. Pis.’ SUF 37, citing FWS BiOp 2-38, BORESA 040026. FWS’s January 19, 2001 BiOp recognizes that operations and maintenance activities on Bureau facilities used to deliver Bureau water to the Friant contracts are related to the Friant contracts. Operations and maintenance activities were identified as “requiring section 7 consultation separate from the present opinion.” FWS’s opinion advised the Bureau to “consider whether it may have a duty to avoid irreversible or irretrievable commitments pending any biological opinion on that ‘related action.’ ” Pis.’ SUF 39, citing FWS BiOp at 4-1, BORESA 040104. The FWS biologists who conducted the Friant contract consultation understood that they were not analyzing indirect effects of the Friant contracts, from interrelated operations and maintenance activities. Pis.’ SUF 40, citing FWS AR 08023512. The Friant long-term contracts cumulatively authorized the Bureau to deliver more than 2.1 million acre-feet of water per year, for twenty-five years. Pis.’ SUF 41, citing FWS BiOp 2-3, 2-5 to-6 (Table 1.4), USBR ESA AR 039991, 039993-4. The parties dispute the exact amount of water that the BiOps on the Friant contracts actually considered in the consultation. FWS opined that “delivery of full contract quantities is unrealistic and that deliveries will continue to be impacted by existing climate, hydrology, actions and statutes including, but not limited to existing biological opinions, existing implementation of the CVPIA, and conformance and adherence to additional existing State and Federal regulations and guidelines; and socioeconomic factors.” Friant Defs.’ SUF 13, FWS January 19, 2001 BiOp, BORESA 040104-040105. FWS conducted its analysis under the expectation that water will be delivered to CVP service contractors in quantities that approximate historic deliveries (1988 through 1997) as given in Appendix D of the November 21, 2000 programmatic long-term CVP contracts consultation. Id. FWS understood when preparing its biological opinion that its assumptions regarding water deliveries were “needed to ... enable use [sic] to get No Jeopardy.” Pis.’ SUF 45, citing FWS AR 08023997 (email from Michael Hoover to David Wright). In reaching its “no jeopardy” and “no adverse modification” conclusions, FWS relied on the Bureau’s stated commitment, as set forth in the project description of the FWS’s biological opinion, to carry out an extensive, thirty-three page list of measures that would mitigate the adverse direct and indirect effects of the Friant contracts. FWS “assumed” that the Bureau would fully and timely carry out these mitigation measures, as a predicate to FWS’s “no jeopardy” finding. Pis.’ SUF 46, citing FWS BiOp at 2-22 to 2-55, 4-1; BORESA 040010-040043, 040104. While some progress was made by the Bureau on various commitments to keeping mitigation promises, the Bureau was still in the process of meeting its obligations. Pis.’ SUF 48, citing, e.g., BORE-SA 040017. D. OTHER BIOLOGICAL OPINIONS 1. November 2000 NMFS and FWS Biological Opinions a. NMFS In November 2000, NMFS prepared a document relating to both the CVPIA (Central Valley Project Improvement Act) and the CVP (Central Valley Project), entitled “Programmatic Biological Opinion for the Improvement Act Preferred Alternative and Proposed Record of Decision” (“NMFS Programmatic BO”). The NMFS CVPIA BiOp declared that the CVPIA FPEIS is “a tiered National Environmental Policy Act document that allows for future site-specific NEPA analysis on CVPIA actions,” and that “[t]his biological opinion is similarly tiered.” Friant Defs.’ SUF 7, citing BORESA 29833. The parties dispute whether the FWS and NMFS 2001 BiOps on the Friant Long-Term Contracts were preceded by and “tiered” from eight previous biological opinions. NMFS’s programmatic BiOp evaluated the Delta Division operations of the CVP, discussing the Tracey Pumping plant. b. FWS In November 2000, FWS prepared a “Biological Opinion” on the Implementation of the CVPIA and Continued Operation of the Maintenance of the CVP. This opinion is colloquially known as the “Mother Opinion.” Friant Defs.’ SUF 1, citing BORESA 052972-052977. The FWS Mother Opinion explains that “Site specific or tiered consultations following this programmatic consultation will rely on programmatic assumptions made during this consultation process while development and implementation of site specific actions will rely on the direction provided by both consultation processes.” Friant Defs.’ SUF 4, citing BORESA 052934-052935. Included among the proposed actions upon which the consultation occurred was the “Long-Term Renewal of CVP Water Service Contracts.” Identified among contracts to be renewed were the Friant Division contracts. Friant Defs.’ SUF 5, citing BORESA 052972-052976. The FWS Mother Opinion includes discussion of operations and maintenance activities, commitments made by the Bureau regarding operations and maintenance planning, and the direct and indirect effects of operations and maintenance activities of the CVP. Friant Defs.’ SUF 32, citing BORESA 052989-052992, 053002-053003, 053053. The Mother Opinion asserts that it considered the “direct and indirect effects of agricultural conversions and related operations” and the “direct and indirect effects of municipal and industrial conversions” facilitated by the CVP. Friant Defs.’ SUF 19, citing BORESA 053048-053051. FWS rendered non-jeopardy opinions regarding continued CVP operations, but specifically stated that those opinions were based upon “implementation of and compliance with all of the conservation measures and commitments,” and “commitments to uphold ESA by both agencies, combined with implementation ... of programs .... ” Friant Defs.’ SUF 20, citing BORESA 053068, 039988. II. ANALYSIS Plaintiffs challenge various biological opinions issued by the FWS and NMFS which preceded the renewal of long-term water contracts in the Friant, Buchanan, and Hidden watér units. They contend that Federal defendants failed to complete environmental reviews as required by ESA and that the consulting agencies issued biological opinions which fail to comply with the law. I decide these motions based on the parties’ papers, the administrative record lodged with this court, and after oral argument. A. STANDARD OF REVIEW This court is charged with reviewing agency actions under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A), and must be satisfied that the decisions are not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Nev. Land Action Ass’n v. United States Forest Serv., 8 F.3d 713, 716 (9th Cir.1993); 5 U.S.C. § 706(a)(2). The court’s review is “narrow” but “searching and careful,” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). Review of the issues subject to the arbitrary and capricious standard examine whether the agencies’ decisions are based on a consideration of the relevant factors and whether the agencies articulated a rational connection between the facts found and the decisions made. Id. at 378, 109 S.Ct. 1851. B. LEGAL FRAMEWORK For any federal action that may affect a threatened or endangered species or its habitat, the agency contemplating the action, otherwise known as “the action agency” (here, the Bureau of Reclamation), must consult with the appropriate “consulting agency” (here, the FWS and NMFS), for the purpose of ensuring that the federal action is not likely to: (1) jeopardize “the continued existence of’ an endangered or threatened species; and (2) that the federal action will not result in the “destruction or adverse modification” of the designated critical habitat of the listed species. 16 U.S.C. § 1536(a)(2). Typically, the action agency makes a written request to the consulting agency, 50 C.F.R. § 402.14(c), and after formal consultation, the process concludes with the consulting agency issuing a biological opinion. The BiOp must address both the jeopardy and critical habitat prongs of Section 7 by considering the current status of the species, the environmental baseline, the effects of the proposed action, and the cumulative effects of the proposed action. 50 C.F.R. § 402.14(g)(2)-(3). See generally Gifford Pinchot Task Force v. United States Fish & Wildlife Serv., 378 F.3d 1059, 1063-65 (9th Cir.2004). Regardless of whether critical habitat is designated, an agency must consult with the Secretary where an action will “jeopardize the continued existence” of a species. If critical habitat has been designated, ESA imposes an additional consultation requirement where an action will result in the “destruction or adverse modification” of critical habitat. 16 U.S.C. § 1536(a). If the BiOp concludes that the proposed action is likely to jeopardize a protected species, the agency must modify its proposal according to the service’s suggestions or risk being found in violation of the statute. 16 U.S.C. § 1536(b)(3)(a); Tribal Village of Akutan v. Hodel, 869 F.2d 1185, 1193 (9th Cir.1988). Section 7(d) of ESA forbids the “irreversible or irretrievable commitment of resources” during the consultation process. Plaintiffs challenge the three BiOps under both the jeopardy and critical habitat prongs of Section 7. Below, I address the consulting agencies’ analyses of the critical habitat requirement on the Friant units, and then examine their treatment of the jeopardy requirement. This order will then address the agencies’ consultation on the Buchanan and Hidden water units. C. THE SERVICES’ “ADVERSE MODIFICATION OF CRITICAL HABITAT” ANALYSES An ESA biological opinion must determine whether the federal action will result in the “destruction or adverse modification” of the designated “critical habitat” of the listed species. 16 U.S.C. § 1536(a)(2). Plaintiffs argue that NMFS and FWS failed to properly consider and analyze whether the renewal of the contracts was likely to result in adverse modification of critical habitat for the winter-run Chinook salmon and for other listed species with critical habitat. Before addressing that contention, I discuss a threshold issue, the agencies’ interpretation of “adverse modification” pursuant to 50 C.F.R. § 402.02. 1. The Services’ Definition of “Destruction or Adverse Modification” under 50 C.F.R. § 402.02 and Gif-ford Pinchot It is undisputed that at the time FWS and NMFS issued their biological opinions in 2001, they applied a definition of “destruction or adverse modification” of critical habitat that the Ninth Circuit has recently held to be invalid. Gifford Pinchot Task Force v. United States Fish & Wildlife Serv., 378 F.3d 1059, 1069 (9th Cir.2004). The regulatory definition “requires appreciable diminishment of the critical habitat necessary for survival before the ‘destruction or adverse modification’ standard could ever be met.” Id. Put differently, under the regulation “a proposed action ‘adversely modifies’ critical habitat if, and only if, the value of critical habitat for survival is appreciably diminished.” Id. That understanding, the Circuit held, “reads the ‘recovery’ goal out of the adverse modification inquiry” and “cannot be right” because the Services would be “obligated to be indifferent to, if not to ignore, the recovery goal of critical habitat.” Id. at 1070 (citing N.M. Cattle Growers Ass’n v. United States Fish and Wildlife Serv., 248 F.3d 1277, 1283 & n. 2 (10th Cir.2001) and Sierra Club v. United States Fish and Wildlife Serv., 245 F.3d 434, 441-42 (5th Cir.2001)). Such a reading, the court held, “contradicts Congress’s express command” and constitutes “a failure of the regulation to implement Congressional will.” Id. at 1069-70. In sum, the Circuit held that the Services must consider both species’ survival and recovery in considering whether the proposed action adversely modifies critical habitat. Id. at 1070. The Circuit also explained that when analyzing the BiOps’ critical habitat analysis, courts “must presume, unless rebutted by evidence in the record, that the [Services] followed [their] definition of adverse modification and thereby ignored the evaluation of whether adequate critical habitat would remain to ensure species recovery.” Id. at 1070. The Government could also show “harmless error” by proving that, even if it ignored recovery on the record by following its regulation, it did not affect the result of the critical habitat analysis. Plaintiffs assert that the Services’ failed to consider whether the contracts were likely to result in adverse effects on critical habitat for winter-run Chinook, and other listed species with designated critical habitat. Defendants contend that they did, in fact, consider both recovery and survival in their biological opinions. Under Gifford Pinchot, this court must presume that the Services followed their now-invalid regulation and examine whether defendants can bear the burden of showing that the record rebuts such a presumption for each of the listed species. Put differently, but to the same effect, the question is whether defendants can demonstrate that the record supports a conclusion that NMFS analyzed species recovery or conservation in the context of critical habitat and ignored their own regulation. Gifford, Pinchot, 378 F.3d at 1075. 2. Winter-run Chinook Salmon (Plaintiffs’ Sixth Claim) Friant defendants maintain that Gifford Pinchot does not apply because NMFS has withdrawn its critical habitat designation for winter-run Chinook and because the Friant contracts do not adversely modify critical habitat of winter-run Chinook. The administrative record does not support the argument. NMFS first designated critical habitat for winter-run Chinook in 1993, 58 Fed. Reg. 33212 (June 16, 1993), and that designation remains valid. As plaintiffs note, a BiOp issued by NMFS on October 22, 2004 confirms that critical habitat was, and remains, designated for winter-run Chinook salmon. See, e.g., Request for Judicial Notice in Supp. of Opp. of Def.-Ints. SLDMWA and Tehama-Colusa Canal Authority to Mot. by NRDC, et al. for Summ. Adj. (Nov. 19, 2004), Ex. B at 48 (describing current critical habitat designation for winter-run Chinook). Friant defendants assert that NMFS vacated its designation by consent decree, citing Ass’n of California Water Agencies v. Evans, 386 F.3d 879, 881 (9th Cir.2004) and Nat’l Ass’n of Home Builders v. Evans, 2002 WL 1205743 (D.D.C.2002). Both of these cases challenged 65 Fed.Reg. 7764 (Feb. 16, 2000), which designated critical habitat for nineteen listed populations of steelhead trout and salmon, not including the winter-run Chinook. Alternatively, Friant defendants argue that the renewal of the contracts has no effect on the critical habitat of the winter-run Chinook. They inappropriately extract one sentence from the “effects” discussion in NMFS’ 2001 BiOp which states that “[s]ince winter-run chinook and spring-run chinook are not present in the San Joaquin River system, they will not be affected by these circumstances.” “[T]hese circumstances” refer to the direct effects of Friant Dam’s diversion on the winter-run chinook. BORESA 041554. Friant defendants contend that it is “speculation that [winter-run] chinook might return to the upper San Joaquin River to spawn at some future date, so that the continuation of present water diversions might ‘adversely affect’ their potential future habitat.” Friant Def.’s Br. at 13, n. 7. I cannot agree. While it is true that NMFS’ 2001 BiOp observes that winter-run chinook salmon “no longer occur within the San Joaquin Basin,” the 2001 BiOp also states that “[v]iable populations of these listed species currently spawn and rear in accessible river reaches.” Further, “[designated critical habitat” for winter-run chinook includes “all river reaches and estuarine areas of the Sacramento-San Joaquin Delta.” BORESA 041550. According to the 2001 BiOp, “[t]he essential elements of designated critical habitat [for winter-run chinook] are the water, substrate, and adjacent riparian areas.” Id. Friant defendants’ argument that the contracts do not adversely modify the critical habitat of winter-run chinook must be rejected because the Services are required to analyze indirect effects caused or induced by the action that are “reasonably certain to occur,” in addition to the direct effects. 50 C.F.R. § 402.02. As plaintiffs note, NMFS concluded that there would be “[p]otential indirect effects of the proposed contract renewals” on the critical habitat of winter-run chinook, including changes in surface water storage, changes in stream flows in the lower San Joaquin River, and changes in flows through the Delta and/or other CVP facilities. Id. NMFS explained that “[f]low changes within the Delta ... may also exacerbate the conditions that entrain [winter-run] juveniles ... into the southern Delta and the pumping plants of the CVP and State Water Project.” Id. Contrary to Friant defendants’ assertions, NMFS’s analysis in the 2001 BiOp concluded that winter-run chinook would be impacted through indirect effects of the proposed action. Federal defendants were, as they recognize, Fed. Defs.’ Br. at 12, required to assess the impact of the contract renewal on habitat critical to recovery of the winter-run chinook salmon. Both Friant and Federal defendants assert that the agency did, in fact, ignore the now-invalidated regulations and adequately considered recovery of winter-run chi-nook salmon in the context of their critical habitat. Friant Defs.’ Br. at 13-14; Fed Defs.’ Br. at 17-18. I cannot agree. Federal defendants assert that this court must consider other documents besides the NMFS’s 2001 BiOp because the BiOp was “tiered . off’ these documents, “resulting in a thorough biological review .... ” Fed. Defs.’ Br. at 6, 12. Federal defendants assert that NMFS considered long-term renewal of the CVP water service contracts in its November 14, 2000 Programmatic BiOp, and that this, along with the passages cited from the 2001 BiOp show that federal defendants “properly took recovery into account.” Fed. Defs.’ Br. at 14. In Gifford Pinchot, the Ninth Circuit, for the first time, approved of “tiering,” or “programmatic environmental analysis supplemented by later project-specific environmental analysis” in the ESA context. 378 F.3d at 1067-68, citing Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1356 (9th Cir.1994)(approving of tiering in the NEPA context). It held that the defendants there could tier to the National Forest Plan because it was a “unique land-management plan” that had already been approved by this court and that it was “hesitant to fault the agency for relying on it in the context of this case.” Id. Arguably, the Ninth Circuit took the unusual step of approving tiered ESA analysis in Gifford Pinchot because the Forest Plan which served as the programmatic opinion was not ordinary, but a particularly thorough and complex one which survived a legal challenge. Id. at 1067-68. If so, the holding was a narrow one, not applicable to all ESA cases. Because this court is uncertain about the scope of Gifford Pin-chot, and discretion being the better part of valor, the court will proceed to consider whether tiering aids defendants in the matter at bar. Defendants urge the court to look at other documents and BiOps, which they argue, shows that they fulfilled their ESA obligations. Both Friant and Federal defendants cite to the agencies’ 2000 programmatic BiOp on CVPIA to argue that the 2000 programmatic BiOp was supplemented by the 2001 BiOps, which served as project-specific environmental analysis. As I now explain, even with this tiered consultation, defendants have not met their obligations under ESA. With regard to the winter-run chinook and critical habitat, Federal defendants assert that NMFS initially considered critical habitat in the 2000 Programmatic BiOp, but admit that the BiOp stated that the long-term contract renewals would be subject to a separate, tiered analysis. Fed. Defs.’ Br. at 12. There is no mention of, much less extensive discussion of, “recovery” in this passage. Clearly, it is insufficient to overcome the Ninth Circuit’s presumption. In addition to citing the passage from the 2000 BiOp, defendants attempt to overcome Gifford Pinchot’s presumption by referencing a section of NMFS’s 2001 BiOp which discusses alleged improvements in the environmental baseline. While this section of the BiOp mentions “improving habitat” and “restoration,” it is clear that NMFS’s discussion of improving habitat occurs in the context of the environmental baseline, rather than in the context of protection of habitat critical for the species’ recovery. The Services, however, must analyze “recovery in the context of critical habitat, the sense in which recovery evaluation is required by the ESA,” rather than in another context. Gifford Pinchot, 378 F.3d at 1074 (rejecting discussion of “recovery” as it is “promoted by the [National Forest Plan],” a comprehensive programmatic BiOp). The Court explained that there must be “discussion of the specific impact” of the proposed action — here the contract renewals — on critical habitat and recovery of the species. It emphasized that this distinction is important, especially “when considered in the context of the agency’s regulation and the presumption of regularity.” Federal defendants also point to a passage discussing the indirect effects, including reverse flows and cross delta transport of water, of the contract renewals on the winter-run chinook. See BORESA 041554. Nowhere in this passage, however, does NMFS discuss or even mention recovery of winter-run chinook or the contract renewals’ impact on critical habitat. I conclude that the defendants have not borne the burden of demonstrating that its reliance on the erroneous regulatory definition of “adverse modification” was harmless. The critical habitat analysis of the winter-run chinook salmon is therefore fatally flawed. 3. Listed Terrestrial and Freshwater Species’ Recovery (Plaintiffs’ Fifth Claim) It is undisputed that, at the time of the consultation at issue, FWS had designated critical habitat for at least seven species, the California condor, Delta smelt, Fresno kangaroo rat, least Bell’s vireo, Little Kern golden trout, Southwestern willow flycatcher, and Valley elderberry longhorn beetle. BORESA 039978-80. Plaintiffs contend that under Gifford Pinchot, defendants’ analysis of adverse modification of critical habitat for these species was improper. I now address defendants’ various arguments in opposition to plaintiffs’ contention. As Friant defendants maintain, plaintiffs failed to provide the 60-day notice of ESA violation as to the California condor, the least Bell’s vireo, and the Southwestern willow flycatcher. Accordingly, they argue, a condition precedent to suit has not been fulfilled. Section 11(g) of ESA permits citizens suits to enforce compliance with the Act. 16 U.S.C. § 1540(g). Before such a suit, however, plaintiff must give the Secretary of the Interior and any alleged violators written notice of intent to sue sixty days prior to filing. This requirement is jurisdictional. Save the Yaak Comm. v. Block, 840 F.2d 714, 721 (9th Cir.1988). As just noted, plaintiffs here did not do so as to certain species. The question, however, is whether this aspect of plaintiffs’ suit is properly viewed as a citizen suit. In Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997), the Supreme Court held that suits against the Secretary of the Interior, acting in his capacity as Administrator of ESA, which challenge the adequacy of biological opinions are not necessarily citizen suits under 11(g) of the Act. Rather, the Court held, such claims could be pled under the Administrative Procedure Act, which authorizes courts to set aside agency actions found to be “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.” Id. at 177, 117 S.Ct. 1154. In conformance with the Bennett holding, the Ninth Circuit has instructed that so long as it is properly pled under the APA, challenges to the adequacy of biological opinions can be pursued notwithstanding a failure to meet the sixty-day notice requirement. American Rivers v. Nat'l Marine Fisheries Serv., 126 F.3d 1118, 1124 (9th Cir.1997). Plaintiffs have pled both APA and ESA claims against the agencies relative to the asserted deficiencies of the BiOps, and thus the court has jurisdiction to consider any claims that those biological opinions are inadequate. As noted, FWS designated critical habitat for at least seven species considered in this consultation. BORESA 039978-80. Plaintiffs contend that defendants summarily concluded that the proposed action would not “adversely modify” critical habitat without considering recovery, or did not come to any conclusion as to the species. Federal defendants assert that the designated critical habitat was not within the action area encompassed by the consultation and so it was not affected by the proposed action. Fed. Defs.’ Br. at 14. They cite to various passages in the 2001 BiOp which they assert shows that these species’ “critical habitat is not within the action area,” and thus, they contend, FWS’s “no adverse modification” conclusion was “reasonable.” Id. at 14-15. I cannot agree. I begin by noting that defendants’ argument that the contract renewals would have no effect on critical habitat because the habitat lies outside of the Friant contract service areas is undermined by the BiOp. FWS explained there that the contracts’ impact extends beyond the contract area by virtue of both direct and indirect effects. Pis.’ Br. at 24. Defendants’ argument fails for yet another reason. In those cases where the FWS articulated a reason for its conclusion, it did not articulate Federal defendants’ litigation position as the reason why it determined that some of these species would not be adversely affected. Put bluntly, defendant’s litigation position is besides the point. The question is whether the articulated reasons in the record demonstrate that FWS’ decisions were based on a consideration of the relevant factors, and whether FWS articulated a rational connection between the facts found and the decisions. Nev. Land Action Ass’n v. United States Forest Serv., 8 F.3d 713, 716 (9th Cir.1993). Gifford Pinchot made clear that in considering whether the proposed action adversely modifies critical habitat, FWS must consider both the species’ survival and recovery. Thus, as with the spring-run chinook salmon, this court must determine whether FWS ignored its own regulation and considered both recovery and survival in its adverse modification analysis for each species. Below, the court does so for each of the listed species with critical habitat. a. California Condor FWS concluded that the proposed action would not adversely modify the critical habitat of the California Condor, even though there is scant discussion of the condor’s habitat. The BiOp notes that the decline of condor population is “attributed to human persecution, pesticide use, lead poisoning, and habitat loss.” BORESA 040050-51. The BiOp, however, appears to contain no discussion whatever of the effect of the contract renewal on “critical habitat,” much less mention of recovery or conservation. Defendants insist that because the condor’s habitat is not within the action area it is not affected negatively by the proposed action. Again, if defendants’ litigation position was the basis for FWS determination the agency was required to say so in the BiOp, and support that reasoning with a meaningful analysis. The court “cannot infer that analysis was conducted but not described in the BiOp.” Gifford Pinchot, 378 F.3d at 1074. b. Delta Smelt Plaintiffs admit that FWS did discuss “recovery” in connection with its effects analysis for the Delta smelt, but they argue that the discussion is inadequate. In light of Gifford Pinchot, the court must agree. The BiOp states that the “renewal of contract [sic] would also adversely impact” the Delta smelt, and although the contracts would “slow down” the Delta smelt’s recovery, certain unspecified “commitments” made by the Bureau in the context of an earlier consultation on CVP operations would allow “eventual” recovery of the smelt. BORESA 040125. Although, as plaintiffs concede, this is the most in-depth analysis provided by FWS as to any of the listed species with designated critical habitat, the discussion is insufficient for several reasons. I begin by noting that while the BiOp acknowledges that the contracts will slow down recovery of the smelt, there is no connection drawn between this adverse impact and its ramifications on the critical habitat of the specie’s. Moreover, as plaintiffs assert, the analysis must not focus on whether eventual recovery is possible, but whether the value of the habitat is “dimin-ishe[d]” for a species’ recovery. 50 C.F.R. § 402.02. Finally, FWS’s BiOp offers no factual support for its contention that recovery remains possible. Under the APA, defendants must make a connection between the facts found and conclusion drawn. There are no facts provided for the assertion that recovery is possible. In sum, the BiOp is simply inadequate by any measure. c. Fresno Kangaroo Rat Federal defendants argue that FWS has met its burden as to the Fresno kangaroo rat because the BiOp states that the Fresno kangaroo rat’s recovery was discussed in the Upland Recovery Plan. BORESA 040059. The parties did not submit the Upland Recovery Plan for the court’s consideration (or, at the very least, it was not easily found by the court) — thus, it is unclear what the Upland Recovery Plan actually discussed. Moreover, even if the plan were submitted and it had some in depth discussion as to the kangaroo rat, this would be insufficient to meet ESA’s requirements because FWS would need to draw a connection between the Upland Recovery Plan and the adverse modification standard within the four corners of the BiOp. ■ The court does note that “critical habitat” is mentioned with respect to the Fresno kangaroo rat. The BiOp states that “[cjritical habitat designated for the species lies about 7 miles west of Fresno ID,” and that “[appropriate habitat management of protected lands ... is also urgently needed.” BORESA 040117. Although “critical habitat” is mentioned, it is discussed in a more general context — on measures to improve the species’s state over all — and thus the FWS did not address the contract renewal’s “specific impact” on the Fresno kangaroo’s critical habitat and its recovery, as Gifford Pinchot requires. See 378 F.3d at 1074. Indeed, it appears that the “proposed contract renewal” is not even mentioned in the discussion of this species. Common sense as well as binding precedent dictates that “even the mention of ‘recovery’ does not indicate analysis of recovery in the context of critical habitat.” Id. at 1074. I conclude that FWS has not shown that it ignored its unlawful regulatory definition in its discussion of the Fresno kangaroo rat. d. Little Kern Golden Trout and Least Bell’s Vireo Beyond explaining where the Little Kern Golden Trout’s critical habitat is located, see BORESA 040071, the only other mention of the species in the entire BiOp is where FWS admits that it “has no information on possible effects from pesticide drift on the Little Kern River golden trout,” BORESA 040120. This one mention insufficiently meets Gifford Pinchot’s mandate that the BiOp must discuss the federal action’s impact on the species’ recovery. As for the least Bell’s vireo, the BiOp explains that “the least Bell’s vireo has sufficient populations in their southern range to sustain the species in the foreseeable future,” and that “restoration of riparian habitat in the San Joaquin Valley was identified as a critical task to recovery.” There is no further analysis of these species. Although “recovery” is mentioned in one sentence in the context of critical habitat as to the least Bell’s vireo, that is hardly sufficient to rebut the presumption that FWS ignored its adverse modification regulation. Moreover, even if the reference were somehow sufficient, FWS failed to draw any conclusion as to adverse modification for the least Bell’s vireo even though the BiOp acknowledges that critical habitat was designated for the species. It is not surprising that with the complete absence of analysis for the Little Kern golden trout, FWS also failed to reach a conclusion as to adverse modification for the Little Kern Golden trout, even though it was listed as a species with a critical habitat designation. BORESA 039979. e. Southwestern Willow Flycatcher & Valley Elderberry Lonyhorn Beetle FWS concluded that the renewal of the contracts would not adversely modify the critical habitat of the southwestern willow flycatcher and the valley elderberry longhorn beetle. BORESA 040128. Defendants assert that FWS did not have to engage in the required adverse modification analysis set forth in Gifford Pinchot because these two species’ habitat were outside the contract service areas. As discussed above, this argument fails. Again, even if this contention represented a viable defense, the BiOp was required to contain a rational connection between such a conclusion and the facts it relied upon. It did not and, as noted, defendants cannot now make a post-hoc connection for FWS. Gifford Pinchot, 378 F.3d at 1074. The court has independently examined the BiOp and although FWS did mention “recovery” and “critical habitat” as it relates to these two species, it failed to discuss recovery in the critical habitat context, as required under Gifford Pinchot. The BiOp notes that “restoration of riparian habitat along the Central valley” would be “critical to the recovery of these species.” BORESA 040125. At best, it may be said that “recovery” is discussed in a very general way but FWS failed to analyze how the contract renewals would actually impact the species’ critical habitat. In sum, as with the critical habitat analysis for the winter-run chinook salmon, the critical habitat analyses as to the other listed species is insufficient. Given the failure of the record to rebut the presumption that the Services relied on an invalid regulation, I conclude that the NMFS and FWS 2001 BiOps were arbitrary and capricious because they failed to adequately discuss the “adverse modification” prong required under the Endangered Species Act. C. THE AGENCIES’S JEOPARDY ANALYSIS In addition to challenging the consulting agencies’ critical habitat analysis, plaintiffs also object to their jeopardy analyses on a number of grounds. I turn to those contentions. Section 7(a)(2) of ESA, 16 U.S.A. § 1536(a)(2), requires that the Secretary of the Interior ensure that an action of a federal agency is not likely to jeopardize the continued existence of any threatened or endangered species. Section 7(b) sets out a process of consultation requiring the agency with jurisdiction over the protected species to issue to the Secretary a “biological opinion” evaluating the nature and extent of jeopardy posed to that species by the action, 16 U.S.C. § 1536(b), after the action agency provides the Secretary with “the best scientific and commercial data available.” 16 U.S.C. § 1536(a)(2). If the biological opinion concludes that the proposed action is likely to jeopardize a protected species, the action agency must modify its proposal. 1. The Services’ Effects Analysis (Plaintiffs’ Fifth Claim) Plaintiffs’ first contention is that FWS failed to consider all of the effects of the renewed contracts. They maintain that FWS failed to consider the effects of interrelated and interdependent operations and maintenance activities, and that it failed to render a BiOP on the effects of water delivery amounts actually authorized by the water contracts. a. Effects of Interrelated and Interdependent Operations and Maintenance In fulfilling its interagency consultation obligations under § 7 of the ESA, the consulting agency must consider the “entire agency action.” Conner v. Burford, 848 F.2d 1441, 1453-54 (9th Cir.1988). This includes the effects of the federal action along with the impact of “interrelated and interdependent” actions. 50 C.F.R. § 402.02(d). The test for interrelated or interdependent effects is “but for” causation, i.e., but for the proposed action, would the other action occur. 51 Fed.Reg. 19932 (1986); Sierra Club v. Marsh, 816 F.2d 1376, 1387 (9th Cir.1987). In Conner, the Circuit explained that FWS was required to consider the consequences of all stages of oil and gas activity in rendering a BiOP. 848 F.2d at 1453-54. The court concluded that FWS’s decision to utilize “incremental-step consultation” was a breach of its duty since such an approach “did not consider all phases of the agency action.” Id. at 1453. The court emphasized that “agency action” is to be interpreted “broadly,” because “[c]aution can only be exercised if the agency takes a look at all the possible ramifications of the agency action.” Id. Here, plaintiffs contend that FWS excluded consideration of interrelated and interdependent operations and maintenance activities, despite the subject action being part of a larger agency action. Plaintiffs observe that FWS’s BiOp identifies thirteen activities that were excluded from the consultation which, they assert, may adversely impact listed species and their habitats. Pis.’ Br. at 30-31, citing BORESA 039977. The court finds that the record supports the conclusion that FWS unlawfully segmented its consultation. The 2001 BiOp acknowledges that the “no jeopardy opinion” did not consider “Operation and Maintenance on Federal and District lands used to convey CVP water” and “Operation and Maintenance Plans.” BORESA 039977. These actions, it asserted, “will require separate determinations regarding their potential effects on threatened and endangered species and critical habitat pursuant to section 7 .... ” Id. In the “commitments” section of the BiOp, where FWS explained the measures that it assumed would be “fully implemented,” the BiOp acknowledged that operation and maintenance activities “have been addressed using a phased approach.” In making this commitment to address operation and maintenance activities, FWS acknowledges the potential impacts of these activities on species. (The BiOp provides that “phase II” was dedicated to addressing “sensitive sites” and the creation of measures to “avoid adverse impact to those species.” Id.). As I now explain, however, the record also demonstrates that operations and maintenance activities were interrelated and interdependent actions which had the potential to adversely impact protected species, and thus should have been included in the consultation. The BiOp recognizes that operation and maintenance of canals is a part of the agency action because it is part of the water delivery process. See USBR ESA AR 039981 (water for the Friant Division is impounded behind Friant Dam and then “released to the 152-mile long [Friant Kern Canal] which flows south and to the 36-mile long [Mader Canal] which flows north”). FWS AR 08022253 (Bureau’s Biological Assessment on Long-Term Contract Renewal states that study area for Section 7 consultation includes “Frianb-Kern Canal, and the Madera Canal”). In a memorandum from Laura Allen, Deputy Regional Environmental Office, to Field Supervisor, U.S. Fish & Wildlife Service (November 25, 2002), where the Bureau requested consultation on implementing an operations and maintenance plan committed to in the 2001 FWS BiOp, “operations and maintenance of facilities” was described as: ... functioning to protect the integrity of the canal and distribution systems so that the structures may operate efficiently and safely. Routine maintenance activities of the canal rights-of-way im elude, but are not limited to, filling erosion gullies and holes, use of herbicides, and use of rodenticides to prevent damaging burrowing activity by ground squirrels. Adverse impacts to listed species can also be caused by some of these activities if they are not performed properly with environmental concerns taken into consideration. Exhibit 3 to Pis.’ Motion to Augment Record (Nov. 19, 2004). Because the delivery of water under the contracts cannot be accomplished without the use of canals, operations and maintenance activities are “interrelated actions,” or actions which are part of a larger action and depend on the larger action for their justification. 50 C.F.R. § 402.02. “ESA requires that the biological opinion detail how the agency action affects the species or its critical habitat.” Conner, 848 F.2d at 1453 (internal quotation omitted). The impact of operations and maintenance activities — such as construction, earth moving, erosion control, and pesticide control — have far-reaching and adverse consequences for protected species. FWS failed to comply with ESA by not including in its BiOp how operations and maintenance activities affect species and its critical habitat. Federal defendants contend that FWS complied with ESA and that the plaintiffs’ argument is a “red herring” because they have completed four O & M manuals, which provide the framework for the Bureau and contractors to conduct future maintenance activities. Beyond that, they maintain, an action agency is not required to “engage in speculation in an attempt to identify potential adverse effects.” Fed. Defs.’ Br. at 21. Friant defendants make a similar argument, responding to plaintiffs’ argument by asking: “How in the world is Reclamation supposed to consult with FWS — other than programmatically — about erosion gullies, gopher holes, and the burrowing activity of ground squirrels? Which gullies? Which gopher holes? Which squirrel burrows? ...” Friant Defs.’ Br. at 48. Defendants maintain that FWS ultimately satisfied ESA because operations and maintenance activities were considered in FWS’s November 2000 Programmatic Biological Opinion. Friant Defs.’ Br. 45-46. The argument is not persuasive. It is important to note that the 2000 BiOp discussion is to be used only for “programmatic purposes.” The O & M discussion spans approximately 3 pages and is very general in nature, describing future commitments and consultations. Further, although the 2000 BiOp made clear other documents could be tiered from it, the BiOp also made clear that it could not be used to supplant the analysis required for actions, such as the long-term contract renewal, which required separate section 7 analysis (“It is understood that these provide only general information and the Service and Reclamation will work together on site specific needs for operation and maintenance actions”). BORESA 052990. While it is true that FWS and the Bureau could not have known about all the potential impacts of individual O & M activities, this argument misses the mark. The law requires consideration of the effects of interrelated and interdependent activities whether or not all of the activities’ impact is known. ESA requires that BiOps consider the entire agency action. Sierra Club v. Marsh, 816 F.2d 1376, 1387 (9th Cir.1987). Here, it is undeniable that maintenance activities allowed for the water delivery under the contracts and would not have occurred “but for” the renewal of the contracts. FWS’s “phasing approach” to O & M activities was “not coextensive with the agency action” and was therefore arbitrary, capricious and not in accordance with the law. Conner, 848 F.2d at 1457-58. The court wishes to be clear, it may well be that some 0 & M activities could not be accounted for in the BiOp because they were unknown. The fact that extensive O & M activities was absolutely certain, however, requires that the activities be analyzed under § 7. b. FWS’s Use of Historical Average Water Deliveries Plaintiffs contend that FWS’s jeopardy opinion should be set aside on yet another ground. They argue that FWS consulted on an amount of water that is significantly less than what was authorized by the water contracts. They maintain that § 7 requires that the action agency consult, and that FWS render BiOps on the effects of the action that is actually authorized by the action agency. 50 C.F.R. §§ 402.02, 402.14. The record refleets that FWS failed to do so, instead consulting on approximately less than half of what was authorized in the long-term contracts. Defendants maintain that the regulation is in the alternative, “authorized, funded, or carried out ”, and the agencies consulted on the amount of water actually to be delivered as determined by historic deliveries, i.e., “carried out.” Even assuming that the regulation is in the alternative, the argument fails. It is clear that the language “carried out” is retrospective, and thus is not relevant to the matter at bar, which is the consummation of contracts for the future delivery of water. Because the contracts are for future delivery, and the amount of water actually to be delivered will vary from year to year and is thus uncertain, the only alternative which applies is the amount of water authorized to be delivered by those contracts. Put another way, the contemplated action is the execution of the water contracts. That execution will authorize the delivery of water, but clearly the execution of the contracts will not, in itself, carry out that delivery. As I now explain, given this conclusion, the BiOp was inconsistent was the agencies’ ESA duties. The Friant long-term contracts cumulatively authorized the Bureau to deliver more than 2.1 million acre-feet of water per year, for twenty-five years. Rather than analyzing the effects of 2.1 million acre-feet of water delivery, FWS explained that its “effects analysis is conducted under the expectation that water will be delivered to CVP service contractors in quantities that approximate historic deliveries (1988 through 1997), as given in Appendix D of the November 21, 2000 programmatic long-term CVP contracts consultation.” This assumption was made, the BiOp explained, because “delivery of full contract quantities is unrealistic.” BORESA 040105. An examination of Appendix D reveals that the historic deliveries for the water districts at issue totaled over 850,-000 acre-feet. Further, Table 1.4, which is included in the 2001 BiOp and which lists the Friant Division and Cross Valley Water Contractors, puts the historic annual deliveries at 799,411 for the Friant districts and 53,574 acre-feet for the Cross Valley Contractors. BORESA 039993-039995. Even though it is unclear what the exact amount of the historic annual delivery was between 1988 and 1997 for all of the water districts at issue, it appears clear that the amount was approximately half of what the water districts were authorized to receive through the contracts. Simply put, FWS did not evaluate the effects of the entire authorized agency action. Significantly, on the same day that the FWS BiOp was issued, Frank Michny, of the Bureau of Reclamation, e-mailed an FWS scientist, that: Our view is that we are consulting on full contract amts for each district, recognizing that total deliveries in certain areas may be limited by OCAP. We will agree that we will consult on any BOR action that may affect listed species ... If changing project description to above results in a J[eopardy] opinion I have been informed, “so be it.” FWS AR 08023996. Just hours before the FWS BiOp was to be issued, the Bureau’s regional environmental officer explicitly told FWS that it was to consult on “full contract amts,” yet FWS failed to do so. As discussed above, “biological opinions must