Full opinion text
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT (DOC. 231/232) OLIVER W. WANGER, District Judge. I. INTRODUCTION This case concerns the effect on a threatened species of fish, the Delta smelt (.Hypomesus transpacificus), of the coordinated operation of the federally-managed Central Valley Project (“CVP”) and the State of California’s State Water Project (“SWP”), among the world’s largest water diversion projects. Both projects divert large volumes of water from the California Bay (Sacramento-San Joaquin) Delta (“Delta”) and use the Delta to store water. For over thirty years, the projects have been operated pursuant to a series of cooperation agreements. In addition, the projects are subject to ever-evolving statutory, regulatory, contractual, and judicially-imposed requirements. The Long-Term Central Valley Project and State Water Project Operations Criteria and Plan (“2004 OCAP” or “OCAP”) surveys how the projects are currently managed in light of these evolving circumstances. At issue in this case is a 2005 biological opinion (“BiOp”), issued by the United States Fish and Wildlife Service (“FWS” or “Service”) pursuant to the Endangered Species Act (“ESA”), which concludes that current project operations described in the OCAP and certain planned future actions will not jeopardize the continued existence of the Delta smelt or adversely modify its critical habitat. The Delta smelt is a small, slender-bodied fish endemic to the Delta. Historically, Delta smelt could be found throughout the Delta. Although abundance data on the smelt indicates that the population has fluctuated wildly in the past, it is undisputed that, overall, the population has declined significantly in recent years, to its lowest reported volume in fall 2004. In this case, Plaintiffs, a coalition of environmental and sportfishing organizations, challenge the 2005 BiOp’s no jeopardy and no adverse modification findings as arbitrary, capricious, and contrary to law under the Administrative Procedure Act, 5 U.S.C. §§ 702 et seq. Before the court for decision is Plaintiffs’ motion for summary judgment. Among other things, Plaintiffs allege that the BiOp fails to consider the best available science, relies upon uncertain (and allegedly inadequate) adaptive management processes to monitor and mitigate the potential impacts of the OCAP, fails to meaningfully analyze whether the 2004 OCAP will jeopardize the continued existence of the Delta smelt, fails to consider the OCAP’s impact upon previously designated critical habitat, and fails to address the impacts of the entire project. Separate opposition briefs were filed by the Federal Defendants (Doc. 242), the Department of Water Resources (“DWR”) (Doc. 246), and the State Water Contractors (“SWC”) (Doc. 241), along with a final brief filed collectively by San Luis & Delta-Mendota Water Authority, Westlands Water District, and the California Farm Bureau Federation (“the San Luis Parties”) (Doc. 247). II. THE ENDANGERED SPECIES ACT A recent Ninth Circuit opinion in National Wildlife Federation v. National Marine Fisheries Service, 481 F.3d 1224 (9th Cir.2007) [hereinafter “NWF v. NMFS” ], succinctly summarizes the relevant provisions of the ESA: The ESA requires federal agencies to “insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [designated critical] habitat....” 15 U.S.C. § 1536(a)(2). The ESA imposes a procedural consultation duty whenever a federal action may affect an ESA-listed species. Thomas v. Peterson, 753 F.2d 754, 763 (9th Cir.1985). To that end, the agency planning the action, usually known as the “action agency,” must consult with the consulting agency. This process is known as a “Section 7” consultation. The process is usually initiated by a formal written request by the action agency to the consulting agency. After consultation, investigation, and analysis, the consulting agency then prepares a biological opinion. See generally Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1239 (9th Cir.2001). In this case, the action agencies are the U.S. Army Corps of Engineers and the Bureau of Reclamation, while the consulting agency is NMFS. The consulting agency evaluates the effects of the proposed action on the survival of species and any potential destruction or adverse modification of critical habitat in a biological opinion, 16 U.S.C. § 1536(b), based on “the best scientific and commercial data available,” id. § 1536(a)(2). The biological opinion includes a summary of the information upon which the opinion is based, a discussion of the effects of the action on listed species or critical habitat, and the consulting agency’s opinion on “whether the action is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat....” 50 C.F.R. § 402.14(h)(3). In making its jeopardy determination, the consulting agency evaluates “the current status of the listed species or critical habitat,” the “effects of the action,” and “cumulative effects.” Id. § 402.14(g)(2)-(3). “Effects of the action” include both direct and indirect effects of an action “that will be added to the environmental baseline.” Id. § 402.02. The environmental baseline includes “the past and present impacts of all Federal, State or private actions and other human activities in the action area” and “the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation.” Id. If the biological opinion concludes that jeopardy is not likely and that there will not be adverse modification of critical habitat, or that there is a “reasonable and prudent alternative! ]” to the agency action that avoids jeopardy and adverse modification and that the incidental taking of endangered or threatened species will not violate section 7(a)(2), the consulting agency can issue an “Incidental Take Statement” which, if followed, exempts the action agency from the prohibition on takings found in Section 9 of the ESA. 16 U.S.C. § 1536(b)(4); ALCOA v. BPA, 175 F.3d 1156, 1159 (9th Cir.1999). * * :|: * :|: * The issuance of a biological opinion is considered a final agency action, and therefore subject to judicial review. Bennett v. Spear, 520 U.S. 154, 178, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997); Ariz. Cattle Growers’ Ass’n, 273 F.3d at 1235. Id. at 1230. III. FACTUAL BACKGROUND For over thirty years the state and federal agencies charged with management of the CVP and SWP have operated the projects in an increasingly coordinated manner pursuant to a Coordinated Operating Agreement (“COA”). The COA, which dates to 1986, has evolved over time to reflect, among other things, changing facilities, delivery requirements, and regulatory restrictions. The most recent document surveying how the COA is implemented in light of these evolving circumstances is the 2004 Operating Criteria and Plan (“2004 OCAP” or “OCAP”) issued June 30, 2004. (AR 489-728.) A. Overview of the 2004 OCAP. The OCAP begins with a “Purpose of Document” section which states: This document has been prepared to serve as a baseline description of the facilities and operating environment of the Central Valley Project (CVP) and State Water Project (SWP). The Central Valley Project — Operations and Criteria Plan (CVP-OCAP) identifies the many factors influencing the physical and institutional conditions and decision-making process under which the project currently operates. Regulatory and legal instruments are explained, alternative operating models and strategies described. The immediate objective is to provide operations information for the Endangered Species Act, Section 7, consultation. The long range objective is to integrate CVP-OCAP into the proposed Central Valley document. It is envisioned that CVP-OCAP will be used as a reference by technical specialists and policymakers in and outside the Bureau of Reclamation (Reclamation) in understanding how the CVP is operated. The CVP-OCAP includes numeric and non-numeric criteria and operating strategies. Emphasis is given to explaining the analyses used to develop typical operating plans for simulated hydrologic conditions. All divisions of CVP are covered by this document, including the Trinity River Division, Shasta and Sacramento Divisions, American River Division and Fri-ant Division. (AR 506.) The introductory chapter provides an overview of all of the physical components of the CVP and SWP (AR 507-520), as well as all of the relevant legal authorities affecting CVP operations (508-512). Chapter 2, explains, among other things, that water needs assessments have been performed for each CVP water contractor, to confirm each contractor’s past beneficial use in order to anticipate future demands. (AR 521.) Chapter 2 also reviews the 1986 COA and how it is implemented on a daily basis by Reclamation and DWR. (AR 523-25.) Also provided is a detailed overview of the “changes in [the] operations coordination environment since 1986,” which include: • Changes due to temperature control operations on the Sacramento River; • Increases in the minimum release requirements on the Trinity River; • Implementation of CVPIA 3406(b)(2) and Refuge Water Supply contracts; • Commitments made by the CVP and SWP pursuant to the Bay-Delta Accord and the subsequent implementation of State Water Resources Control Board (“SWRCB”) Decision-1641; • The Monterey Agreement; • The Operation of the North Bay Aqueduct (which was not included in the 1986 COA). • The SWP’s commitment to make up for 195,000 acre-feet of pumping lost to the CVP due to SWRCB Decision 1485; • Implementation of the Environmental Water Account; and • Constraints imposed by various endangered species act listings, including that of the Sacramento River Winter-Run Chinook Salmon, the Sacramento River Spring-Run Chinook Salmon, the Steelhead Trout, and the Delta Smelt (which resulted in the issuance of biological opinions in 1993,1994, and 1995 concerning CVP/SWP operations and the South Delta Temporary Barriers Biological Opinion in 2001) (AR 525-28.) The OCAP also reviews the regulatory standards imposed by SWRCB D-1641, which include water quality standards based on the geographic position of the 2-parts-per-thousand isohale (otherwise known as “X2”), a Delta export restriction standard known as the export/inflow (E/I) ratio, minimum Delta outflow requirements, and Sacramento River and San Joaquin River flow standards. (AR 530-537.) In addition to imposing requirements, D-1641 granted the Bureau and DWR permission to use each project’s capabilities in a coordinated manner. (AR 537-38.) This is not a complete overview of the projects’ operations covered in the OCAP. Numerous regulatory and operational changes have taken place in recent years. As the OCAP’s “Purpose of Document” section explains, the immediate objective of the OCAP is to lay out all such regulatory and other operational information so that ESA Section 7 consultation can proceed to evaluate how project operations will effect the Delta smelt under various projected future conditions. B. Applying the ESA to Project Operations. Because endangered and/or threatened species, including the Delta smelt, reside in the area affected by the CVP and SWP, the 2004 OCAP, administered on behalf of the federal government by the Bureau of Reclamation (“Bureau”), must comply with various provisions of the ESA. Specifically, prior to authorizing, funding, or carrying out any action, the acting federal agency (in this case, the Bureau) must first consult with FWS and/or NMFS to “insure that [the] action ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined ... to be critical.... ” 16 U.S.C. § 1536(a)(2) [ESA § 7(a)(2) ]. This form of consultation is called “formal consultation,” and concludes with the issuance of a biological opinion. 50 C.F.R. § 402.02. Alternatively, under certain circumstances, a federal agency may pursue “early consultation,” on behalf of an agency or private party (referred to as a “prospective applicant”) who will require formal approval or authorization to undertake a project. Id. Early consultation may be requested when the prospective applicant “has reason to believe that an endangered species or a threatened species may be present in the area affected by this project and that implementation of such action will likely affect such species.” 50 C.F.R. § 402.11(b). The result of early consultation is a “preliminary biological opinion,” the contents of which are “the same as for a biological opinion issued after formal consultation except that the incidental take statement provided with a preliminary biological opinion does not constitute authority to take listed species.” § 402.11(e). Subsequently, the preliminary biological opinion may be “confirmed” after the prospective applicant applies to the federal agency for a permit or license. Once a request for confirmation is received, the FWS must either confirm that the preliminary biological opinion stands as the final biological opinion or must request that the federal agency initiate formal consultation. § 402.11(f). In this case, the 2004 OCAP BiOp contemplates increases in water diversions and the construction of new facilities in the Delta. (AR 256-271.) The maximum daily diversion rate in Clifton Court Forebay will increase from 6,680 cubic feet per second (CFS) to 8,500 CFS (27% increase in pumping) and eventually to 10,300 CFS (54% increase). Permanent barriers within the south Delta will be constructed and operated. An intertie between the California Aqueduct and the Delta-Mendota Canal will be constructed and operated. Water deliveries from the American River will be doubled. New deliveries of CVP water to the Freeport Regional Water Project will be made. Water transfers resulting in an annual 200,000 to 600,000 acre-feet increase in Delta exports will result. (AR 256, 339-40, 357-59, 371, 382-83, 465.) The Bureau submitted some of these operational changes for formal consultation with FWS concerning their impact on the Delta smelt, while other changes were subject only to early consultation: This biological opinion covers formal and early consultation for the operations of the CVP and SWP. The formal consultation effects described in this biological opinion cover the proposed 2020 operations of the CVP including the Trinity River Mainstem ROD (Trinity ROD) flows on the Trinity River, the increased water demands on the American River, the delivery of CVP water to the proposed Freeport Regional Water Project (FRWP), water transfers, the long term Environmental Water Account (EWA), the operation of the Tracy Fish Facility, and the operation of the SWP-CVP in-tertie. The effects of operations of the SWP are also included in this opinion and include the operations of the North Bay Aqueduct, the Suisun Marsh Salinity Control Gates, the Skinner Fish Facility and water transfers. Early consultation effects include the effects of operations of components of the South Delta Improvement Program (SDIP). These operations include pumping of 8500 cubic feet per second (cfs) at the SWP and Banks Pumping Plant (hereafter referred to as 8500 Banks), permanent barrier operations in the South Delta, the long term EWA, water transfers, and CVP and SWP operational integration. There are two separate effects sections in this biological opinion, one for Formal Consultation and one for Early Consultation. In addition, there is an incidental take for formal consultation and a preliminary incidental take for early consultation. (AR 2, 248.) C. History of This Lawsuit On July 30, 2004, FWS issued a Biological Opinion (the “2004 OCAP BiOp”), addressing both formal and early consultation for the above-described OCAP actions. (AR 1.) On August 4, 2004, the Ninth Circuit decided Gifford Pinchot Task Force v. United States Fish & Wildlife Serv., 378 F.3d 1059, 1069 (9th Cir.2004), which held that the FWS’s definition of “adverse modification” to critical habitat is an impermissible interpretation of the ESA because it focuses on whether critical habitat modifications would impact the survival of a species, effectively ignoring the statutorily-mandated goal of “recovery.” On November 4, 2004, in response to this ruling, the Bureau requested reinitiation of consultation to address critical habitat issues. Plaintiffs in this case, a coalition of nonprofit conservation organizations, filed suit on February 15, 2005, alleging that the 2004 OCAP BiOp was legally inadequate in light of Gifford Pinehot and should be invalidated. (Doc. 1.) Plaintiffs named as defendants the Department of the Interior and the FWS. (Id.) On February 16, 2005, FWS issued an amended BiOp (the “2005 OCAP BiOp,” “OCAP BiOp,” or “BiOp”), which super-ceded the 2004 OCAP BiOp. (AR 247.) The 2005 OCAP BiOp concludes that the coordinated operation of the SWP and CVP, including the proposed future actions, will not jeopardize the Delta smelt’s continued existence. (AR at 469.) Although the BiOp recognizes that existing protective measures may be inadequate, the FWS concluded that certain proposed protective measures, including the EWA and a proposed “adaptive management” protocol would provide adequate protection. (Id.) Since the filing of this complaint, Federal Defendants have reinitiated § 7 consultation and contend this case should be dismissed as moot, or stayed for a voluntary remand of the 2005 BiOp without vacatur. Plaintiffs filed a supplemental complaint on May 20, 2005, challenging the amended BiOp on various grounds. (Doc. 128 pt. 8.) D. Delta Smelt Abundance. Smelt once were one of the most common pelagic fish in the Delta, having previously occupied the waters from “Sui-sun Bay and Montezuma Slough, upstream to at least Verona on the Sacramento River, and Mossdale on the San Joaquin River.” (AR 365.) Smelt abundance has “declined irregularly” for at least the past 20 years. (AR 365-67.) FWS relies primarily upon two indices to monitor Delta smelt abundance, calculated from the Summer Tow Net Survey (“TNS”) and the Fall Midwater Trawl (“FMWT”). (AR 366-67, 1022.) The TNS index, which measures the abundance and distribution of juvenile Delta smelt, constitutes “one of the more representative indices because the data have been collected over a wide geographic area (from San Pablo Bay upstream through most of the Delta) for the longest period of time (since 1959).” (AR 370.) Since 1983, except for three years (1986, 1993, and 1994), the TNS has remained consistently lower than ever previously recorded. (Id.) The FMWT index, which measures the abundance and distribution of late juveniles and adult Delta smelt from San Pablo Bay to Rio Vista on the Sacramento River and Stockton on the San Joaquin River, is the second longest running survey (since 1967). The BiOp reviewed the FMWT trends as follows: Although this index has fluctuated widely (AR 9201-02, 9222), it has “declined irregularly over the past 20 years.” (AR 370-71.) Since 1983, the FMWT has registered more low indices for more consecutive years than previously recorded. Until recently, except for 1991, this index has declined irregularly over the past 20 years. Since 1983, the delta smelt population has exhibited more low fall midwater trawl abundance indices, for more consecutive years, than previously recorded. The 1994 FMWT index of 101.7 is a continuation of this trend. This occurred despite the high 1994 summer townet index for reasons unknown. The 1995 summer townet was a low index value of 319 but resulted in a high FMWT index of 898.7 reflecting the benefits of large transport and habitat maintenance flows with the Bay-Delta Accord in place and a wet year. The abundance index of 128.3 for 1996 represented the fourth lowest on record. The abundance index of 305.6 for 1997 demonstrated that the relative abundance of delta smelt almost tripled over last years results, and delta smelt abundance continued to rise, peaking in 1999 to an abundance index of 863, only to fall back down to the low abundance indexes of 139 for 2002 and 213 for 2003. (AR at 371.) The 2004 FMWT index, which was not discussed in the BiOp, was calculated to be 74, the lowest ever recorded. (AR 9202.) (This omission forms the basis of one of Plaintiffs’ challenges to the BiOp.) The survey was apparently released in December 2004, and was specifically cited to FWS in February 2005. At the hearing on the summary judgment motions, Federal Defendants in substance argued that despite years of study, the abundance data for the annual Delta smelt population is fraught with uncertainties and “not enough is known about the species” to accurately and finitely measure with certainty the project’s effects on Delta smelt. FWS maintains the one to two year life expectancy of the smelt also contribute to this lack of certainty. E.Relationship Between Abundance and Project Operations. The BiOp cites several reasons for the smelt’s decline. First, since the mid 1800s, mining, agricultural use, and levee construction caused the loss of a large portion of smelt habitat. (AR at 365.) Second, recreational boating in the Delta has resulted in the presence and propagation of “predatory non-native fish” and an increase in the rate of smelt erosion resulting from boat wakes. (Id.) Third, reduced water quality “from agricultural runoff, effluent discharge and boat effluent has the potential to harm the pelagic larvae and reduce the availability of the planctonic food source.” (Id. at 366.) Finally, the BiOp acknowledges that “delta smelt have been increasingly subject to entrainment, upstream or reverse flows of waters in the Delta and San Joaquin River, and constriction of low salinity habitat to deep-water river channels of the interior Delta.” (Id.) The BiOp acknowledges that these final adverse effects are “primarily a result of the steadily increasing proportion of river flow being diverted from the Delta by the Projects, and occasional droughts.” (Id. (emphasis added).) The BiOp in no way quantifies the contribution of each of these factors to the smelt’s decline. The parties dispute the extent to which project operations jeopardize the smelt. F. Relationship Between Smelt and “JO.” Smelt are euryhaline (tolerant of a wide range of salinities), but generally occur in water with less than 10-12 parts per thousand (ppt) salinity. (AR at 362.) For a large part of its life span, Delta smelt are thought to be associated with the “freshwater edge of the mixing zone,” where the salinity is approximately 2 parts per thousand (often referred to as “X2”). (AR at 366.) The summer TNS index increases dramatically whenever X2 is located -between Chipps and Roe islands. (Id.) Whenever the location of X2 shifts upstream of the confluence of the Sacramento and San Joaquin, either as a result of water diversions or natural conditions, smelt abundance decreases. (Id. at 371.) G. The Concept of “Salvage. ” The BiOp’s “no jeopardy” conclusion relies on the concept of “salvage,” which refers generally to the process of using mechanical devices to screen fish that would otherwise be entrained in project facilities (e.g., pumps) into holding tanks for transport to other parts of the Delta. (See e.g., AR 321.) Unlike many other fish species in the Delta, Delta smelt do not survive the salvage process, “either due to stress and injury from handling, trucking and release, or from predation in or near the salvage facilities, the release sites, or in Clifton Court Forebay.” (AR at 413.) As a result, for Delta smelt, FWS uses the terms salvage and entrainment essentially interchangeably. (See id.) (“To simplify predictions of the difference in salvage (and by extension entrainment) between model scenarios....”) Previous ' BiOps regarding CVP and SWP operations used salvage to set take limits. For example, the 1995 BiOp’s inei-dental take statement set take exceedence levels for Delta smelt based on “[m]onthly average delta smelt salvage at the Federal and State Fish Facilities from 1980 to 1992 by water year type.” (AR at 11765.) Essentially, take limits were set according to how much salvage had occurred in the past. More recently, project managers, fisheries officials, and other experts came to the consensus that the salvage approach was insufficient on its own. For example, one DWR biologist noted that the singular focus on historic salvage had problems: Higher levels of take are allowed in below normal years merely because this is what the projects “took” historically. However, the population is more condensed in below normal years and possibly more vulnerable to entrainment. (AR 5532.) Experts advocated (a) further research into the relationship between the position of the Delta smelt and environmental conditions (AR 4881); and (b) the adoption of a flexible management approach, which would allow new information to be “folded back into the operation and conservation strategies.” (AR 4870.) The result was a “layered” approach to managing the smelt, made up of more protective take limits than previously imposed along with the implementation of an adaptive management protocol. I. Revised Take Exceedence Levels Used In the BiOp. The BiOp includes “hard” take limits, based on historic “salvage density estimates,” adjusted to account for operational constraints under the 2004 OCAP and presumed increased environmental water flows. Separate take limits were established for formal and early consultation purposes. The revision of the take limits began with historic catch data from periodic samples of salvaged fish. (See AR 413.) Data about the volume of water diverted during the collection period is then used to estimate the fish per volume of water diverted. This is referred to as the “salvage density.” (Id.) Historically, salvage density varied greatly depending on whether the year was wet (above normal), dry (below normal, dry, or critical) year. Wet and dry year data were analyzed separately. (Id.) The estimates were then inputted into a computer modeling system, CAL-SIM II, to estimate take under varying assumptions about future project operations, including programs designed to improve environmental conditions, such as the Environmental Water Account. (AR 413-14.) Several different scenarios or “Studies” were run through CALSIM II and included in the BiOp. For example, Study No. 1 reflects the 1995 regulatory base case, without any changes in project operations and without the addition of any environmental water programs. Study No. 4a estimates a take level for flow conditions planned under the operations subject to final consultation (changes to flows in the Trinity River, future development levels, and the operation of the Freeport Regional Water Project and the Intertie). Study 4a included flow adjustments required by D-1641 and VAMP, along with projected CVPIA (b)(2) flows, but did not include operation of the EWA. Study No. 5a was similar to 4a, except that it added projected EWA flows. Separately, in Study No. 5, CALSIM II simulated flow modifications projected to occur as a result of “those projects subject to early consultation,” specifically the increased pumping and permanent barriers called for in the planned South Delta Improvement Project (“SDIP”). (AR 374, 414-19; Sommer Decl. ¶ 5.) Each modeling scenario was run separately for various water year types (Wet, Above Normal, Below Normal, Dry, and Critically Dry) and independently estimated take at CVP and SWP facilities. The BiOp based its conclusions for formal consultation on the results of the Study No. 5a, and for early consultation on the results of Study No. 5. The results of the modeling scenarios for Study No. 5a are set forth in several tables at pages 414 through 419 of the AR. The following table summarizes the changes in estimated take for Study No. 5a, for each type of water year, relative to the 1995 base case. In other words, the positive figures represent the number of additional smelt that will be taken per month under formal consultation relative to the 1995 base case (Study No. 1) while negative numbers represent how many fewer smelt will be taken per month relative to the 1995 base case. Table 1: Summary of Results for CVP Salvage Under Study No. 5a Table 2: Summary of Results for SWP Salvage Under Study No. 5a For the CVP, CALSIM II predicts significant reductions in smelt salvage during the months of December through July in below normal and dry years, when compared to the regulatory base case. However, under certain scenarios, CVP salvage increases during other months of the year relative to the regulatory base case, because pumping is predicted to increase during these months to make up for water released from storage for fish protection purposes. For the SWP, salvage stays relatively level for the months of December through March. However, salvage decreases for the months of April through July relative to the regulatory base case. Based on CALSIM II Study 5a, FWS calculated the amount of “combined salvage” (i.e., for both projects) estimated under the formal consultation scenario, for each month, according to water year type. The BiOp rounded the numbers up to the nearest 100 and used those figures to set incidental take limits by water year type. (AR 471£72.) Table 3: Incidental Take Limits by Water Year Type (For Both CVP and SWP) Because these incidental take levels are based on predictions produced by CAL-SIM II Study 5a, they do not assume any smelt protection actions under the DSRAM, but do assume continued availability of the EWA water. (AR 374, 471.) FWS determined that the level of anticipated take “is not likely to result in jeopardy to the smelt because this level of take is at or below historical levels of take.” (AR 474.) However, the BiOp also acknowledges that “the operations of the Projects under formal consultation as described in the Project Description will result in adverse effects to delta smelt through entrainment at the CVP and SWP and by drawing delta smelt into poorer quality habitat in the south delta.” (AR 422 (emphasis added).) The BiOp concludes that “with the inclusion of [certain] conservation measures described [in the BiOp] and the implementation of the [Delta Smelt Risk Assessment Matrix], these adverse effects would be avoided or minimized.” (Id. (emphasis added).) “[W]ith these conservation measures in place, the re-operation of the Trinity River, the increased level of development on the American River, the Freeport Diversion, the Suisun Marsh Salinity Control Gates, the Barker Slough Diversion, or due to changes to X2 ... are not expected to result in adverse effects to delta smelt.” (AR 423.) FWS’ conclusions admit project operations will result in adverse effects to delta smelt, which are unquantified, and can only be avoided by conservation measures and implementation of the DSRAM. H. “Conservation Measures.” The “conservation measures” contemplated are listed in the Summary of Effects section of the BiOp and include: (1) the Environmental Water Account (“EWA”); (2) Central Valley Project Improvement Act (b)(2) water; (3) State Water Resource Control Board’s Water Rights Decision 1641; (4) the Vernalis Adaptive Management Plan (“VAMP”); and (5) the DSRAM adaptive management plan.. (AR 466-68.) 1. CVPIA (b)(2) Water. According to the 1992 Central Valley Project Improvement Act, the CVP must “dedicate and manage annually 800,000 acre-feet of Central Valley Project yield for the primary purpose of implementing the fish, wildlife, and habitat restoration purposes and measures authorized by this title; to assist the State of California in its efforts to protect the waters of the San Francisco Bay/Sacramento-San Joaquin Delta Estuary; and to help to meet such obligations as may be legally imposed upon the Central Valley Project under State or Federal law following the date of enactment of this title, including but not limited to additional obligations under the Federal Endangered Species Act.” Title XXXXIV of the Reclamation Projects Authorization and Adjustment Act of 1992, Pub.L. 102-575, 106 Stat. 4600, 4706 (1992). (See AR 372.) FWS, in consultation with the Bureau and other agencies, may use this “(b)(2) water” to meet Water Quality Control Plan (WQCP) obligations and any other requirements imposed by law after 1992. “For example, (b)(2) water has been used to maintain flows on Clear Creek to provide adequate spawning and rearing habitat for Chinook salmon. Water exports at the CVP have also been reduced using (b)(2) water to reduce entrainment of salmon or delta smelt at the salvage facilities. This ongoing action provides a benefit to delta smelt in most years.” (AR 372.) The base CVP yield committed to fish restoration is fixed by statute and is mandatory. This fixed supply is subject to reduction up to 25% in critically dry years under CVPIA § 3406(b)(2)(C). 2. Environmental Water Account. The Environmental Water Account (“EWA”) is “an adaptive management tool that aims to protect both fish and water users as it modifies water project operations in the Bay-Delta.” (AR 373.) The EWA provides water for the protection and recovery of fish beyond that which would be available through the existing baseline of regulatory protection related to project operations. The EWA buys water from willing sellers or diverts surplus water when safe for fish, then banks, stores, transfers and releases it as needed to protect fish and compensate water users for deferred diversions. (Id.) The EWA has been used to benefit smelt by allowing for the curtailment of project export pumping during critical time periods. (Id.) The EWA could also be used to increase in-stream flows or increase outflows in the Delta, both of which would benefit the smelt. (Id.) The EWA is not fixed by statute nor is annual funding assured, and the water supply it provides, though reasonably anticipated, is not immutable. 3. Water Rights Decision 1641. State Water Resource Control Board Decision 1641 (D-1641) imposes certain minimum flow and water quality objectives upon the projects: D-1641 includes specific outflow requirements throughout the year, specific export restraints in the spring, and export limits based on a percentage of estuary inflow throughout the year. D-1641 obligates the SWP and CVP to comply with the objectives in the 1995 Bay-Delta Plan. The Service issued a biological opinion on the Bay-Delta plan to the Environmental Protection Agency on November 2, 1994. The water quality objectives in the 1995 Bay-Delta Plan and in D-1641 are designed to protect in-Delta agricultural, municipal and industrial, and fishery uses and vary throughout the year and by water year type.... D-1641 will also protect delta smelt by providing transport, habitat and attraction flows. (AR 373 (citations omitted).) The D-1641 requirements are mandatory under the projects’ operating permits. The water to satisfy D-1641 comes from 3406(b) (2) yield and supplemental sources the Bureau utilizes. 4.Vernalis Adaptive Management Plan (VAMP). The Vernalis Adaptive Management Plan (VAMP) is an experimental program that had its origin in D-1641. (AR 373.) It provides for flows on the lower San Joaquin River and export curtailments at the projects. (Id.) VAMP’s purpose is to “provide pulse flows on the San Joaquin River and improve habitat conditions in the Delta by reducing exports at the CVP and SWP” over a 31 day period in April and May for the benefit of Chinook salmon and Delta smelt. (Id.) Currently, water used to reduce exports at the CVP under VAMP is accounted for as CVPIA (b)(2) water. (Id.) If export reductions are taken, the EWA is used to supply contractors to make up for the transfers. VAMP flows “allow larval and juvenile smelt to avoid becoming entrained at the export facilities and to move downstream to Sui-sun Bay.” (Id.) The VAMP water supply is not irrevocably fixed or assured. I.Delta Smelt Risk Assessment Matrix (DSRAM). The BiOp’s other, primary protection for the smelt is the implementation of a new adaptive management protocol, known as the Delta Smelt Risk Assessment Matrix (“DSRAM”). The DSRAM utilizes a list of trigger criteria to precipitate responses. (AR at 344.) The criteria are: (1) the previous year’s FMWT index; (2) the risk of smelt entrainment based upon the location of X2; (3) the estimated duration of the smelt spawning period, based on water temperature; (4) the presence of spawning female smelt; (5) the proximity of the smelt to project pumping facilities; and (6) a salvage trigger for adult and juvenile smelt. (AR 346.) 1. The DSRAM Process. If any trigger criteria is met or exceeded, a Delta Smelt Working Group (“DSWG”) is convened. The DSWG consists of representatives from FWS, the California Department of Fish and Game, DWR, the United States Environmental Protection Agency, the Bureau, and the California Bay-Delta Authority. (See AR 344-45.) The DSWG then recommends corrective actions to a Water Operations Management Team (“WOMT”). (Id.) The OCAP BiOp identifies four specific actions that the DSWG and WOMT must consider taking if one or more trigger criteria occur: (1) export reductions at one or both of the projects; (2) changes in the south Delta barrier operations; (3) changes in San Joaquin River flows; and (4) changes in the operation of the Delta cross channel. The DSRAM does not contain defined action criteria, but instead leaves any response wholly to the discretion of the two groups who administer the DSRAM (DSWG and WOMT). 2. DSRAM Implementation. The BiOp acknowledges although FWS is “confident that use of the DSRAM will reduce the frequency with which actual salvage exceeds the median predicted salvage, the exceedence frequency could be as high as 50%.” (AR 471.) There is no analysis of the duration or consequences from such exceedence. The DSRAM provides no operating criteria or action schedule, specifying when mitigation actions must be taken. It is not possible to predict what, how and when DSRAM measures will be implemented. J. Recent Experience with DSRAM. DWR offered post-record evidence regarding the manner in which DSRAM has actually been implemented since its inception. This post-record activity could not have been considered by the agency. A motion to strike the proffered evidence was sustained. The offer of proof includes two “fish actions” that were taken in 2005 in response to “triggers” and a third that was planned but avoided when project water increased in early 2006, a wet year. DWR’s offer of proof is to show positive experience in operation of the DSRAM. K. Recent Procedural History. The Federal Defendants acknowledge that “[sjhortly before the 2005 OCAP BiOP was completed, a fall midwater trawl survey of delta smelt revealed a substantial decline in the population index for the species” to the lowest ever. (Doc. 242-1, at 4.) The Federal Defendants do not concede that the existence of this data renders the BiOp arbitrary and capricious, because “limited analysis of this data existed, and the Service relied on the raw data, and its own professional judgments as the best available scientific and commercial data available.” (Id.) Nevertheless, “the CALFED agencies have continued to assemble and analyze new data and information.” (Id.) For example, scientists from CALFED agencies “recently” developed a document based upon the new data: the Interagency Ecological Program Synthesis of 2005 Work to Evaluate the Pelagic Organism Decline (POD) in the Upper San Francisco Estuary (the “IEP POD Synthesis”). This document led the Federal Defendants to conclude that the OCAP for the CVP and SWP may affect Delta smelt in a manner or to an extent not previously considered. (IEP POD Synthesis, Doc. 240, Attachment 1.) On July 6, 2006, the Bureau requested that the FWS re-initiate consultation concerning the impact of the OCAP on the Delta smelt. (Doc. 240.) In a July 6, 2006 letter to the FWS, the Bureau acknowledged that “emerging data indicates an apparent substantial decline in the Delta smelt population index.” (Doc. 240-2.) 1. No Dismissal or Stay. In light of the second re-initiation of consultation, federal defendants sought dismissal on prudential mootness grounds, a voluntarily remand without vacatur, or a stay pending the completion of reconsultation. (See Docs. 242-1, 273.) The motion for stay was joined by the DWR (Doc. 277), and various Defendant-Intervenors (Doc. 274). Plaintiffs opposed because Federal Defendants refused to withdraw the challenged BiOp and stated their intent to continue CVP and SWP operations under the disputed BiOp and its incidental take statements during the time period necessary to complete re-consultation, now projected to be July 2008, more than two and one-half water years following the effective date of the disputed BiOp. (See Doc. 279.) Defendants’ motion to dismiss on prudential mootness grounds was denied: Plaintiffs’ concerns have not been fully addressed by the reinitation of consultation. Federal Defendants are relying in part on the challenged BiOps in operating the CVP and intend to continue to do so. The controversy over whether the BiOps and OCAP should have continued viability is real and substantial, and this court could provide relief, in the form of a decision invalidating the BiOps followed by hearings on interim remedies. Under these circumstances, it is not appropriate to deem this case prudentially moot. (Doc. 301 at 18 (footnotes omitted).) The motion for voluntary remand without vacatur was denied based on the general standard for vacatur set forth in Natural Resources Defense Council v. U.S. Dept. of the Interior, 275 F.Supp.2d 1136, 1143 (C.D.Cal.2002), which considers “the seriousness of the order’s deficiencies” and “the disruptive consequences of an interim change that may itself be changed.” No evidence or argument was presented regarding the nature of the prejudice that might result from invalidating the BiOp (id. at 20), and numerous factual and legal disputes exist regarding the seriousness of the order’s deficiencies (see id. at 27). The court was left to speculate what consequences to the species would result if in-junctive relief were ordered against continued implementation of the disputed BiOp. The stay motion, based on the primary jurisdiction doctrine, was denied on the authority of Lockyer v. Mirant Corp., 398 F.3d 1098, 1109 (9th Cir.2005) (a party seeking a stay “must make out a clear case of hardship or inequity in being required to go forward, if there is even a fair possibility that the stay for which he prays will work damage to someone else.”). The order held: “Plaintiffs are entitled to have their complaint decided on the merits, particularly given the fact that Defendants continue to rely on the challenged BiOps as if they were lawfully enacted.” (Doc. 301 at 33.) The apparent increasing jeopardy to the smelt by and after February of 2005 militates against further delay while FWS continue “to study” the issue of jeopardy, an exercise that has continued for almost a decade. IV. POST-RECORD EVIDENTIARY DISPUTES A. Objections to Declaration of Ted Sommer. DWR offers the post-record declaration of Ted Sommer, Ph.D, to explain (1) the concept of salvage and its relationship to the take exceedence levels in the BiOp; (2) the operation of DSRAM; (3) and the manner in which DSRAM has been implemented since its inception. Generally, “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). However, the Ninth Circuit recognizes three main exceptions to this rule, allowing courts to consider extra-record evidence: (1) if necessary to determine “whether the agency has considered all relevant factors and has explained its decision,” (2) “when the agency has relied on documents not in the record,” or (3) “when supplementing the record is necessary to explain technical terms or complex subject matter.” Southwest Ctr. for Biological Diversity v. U.S. Forest Service, 100 F.3d 1443, 1450 (9th Cir.1996). A court may also consider extra-record evidence “when plaintiffs make a showing of agency bad faith.” Nat’l Audubon Soc. v. U.S. Forest Serv., 46 F.3d 1437, 1447 n. 9 (9th Cir.1993). DWR maintains that the Sommer declaration explains “technical or complex subject matters” admissible under the exception for evidence “necessary to explain technical or complex subject matters.” (Doc. 246-1 at 5-6 n. 5.) Plaintiffs move to strike the declaration on the ground that subject matters covered by Mr. Som-mer are “neither technical nor complex.” (Doc. 305 at 4 n. 1.) Rather, Plaintiffs contend that the declaration is offered to explain the agency’s post-BiOp experience with DSRAM in an effort to counter the Plaintiffs’ argument that the DSRAM is wholly discretionary and contains no defined standards or enforceable requirements. Generally, “post hoc rationalizations of the agency ... cannot serve as a sufficient predicate for agency action.” Am. Textile Manuf. Inst. v. Donovan, 452 U.S. 490, 539, 101 S.Ct. 2478, 69 L.Ed.2d 185 (1981); see also Sierra Club v. Bosworth, 199 F.Supp.2d 971, 986 (N.D.Cal.2002) (refusing to consider post hoc explanations that were “neither addressed nor supported by the record”). DWR does not disagree with this general principle, but instead insists that the declaration is offered only to explain complex and technical aspects of the incidental take exceedence levels and the DSRAM. Paragraphs 11 through 15 of the Som-mer Declaration concern the implementation measures taken under the DSRAM after the BiOp issued. There is no basis in the law for the admission of this post-record evidence. DWR does not assert otherwise. Plaintiffs’ motion to strike is GRANTED as to paragraphs 11 through 15. The information contained in the remainder of the Sommers declaration is drawn directly from the BiOp itself, explaining in plain language how the incidental take limits were set and how DSRAM operates. Although, much of the same information can be found in the BiOp, the subject matters covered are technical and complex and Dr. Sommer’s declaration clarifies or explains them. This exception saves the remaining paragraphs of the Sommers declaration to explain the incidental take limits. The motion to strike is DENIED IN PART as to the past record evidence paragraphs only. B. Federal Defendants’ Renewed Objections to Previously Admitted Extra-Record Documents. The May 13, 2006 memorandum decision admitted certain extra-record documents, for limited purposes (Doc. 219), including Document 10 (a Powerpoint presentation by Michael Dettinger given to the Bay-Delta Authority on December 8, 2004 entitled “Uncertainties & CALFED Planning What Are Current Observations and Models Saying?”) for two purposes. First, “for the limited purpose[ ] of determining whether []FWS failed to adequately consider the climate change issue and the scientific significance of any such failure ....;” but not legal opinions. (Doc. 219 at 25.) Second, to the extent appropriate, all twenty two extra record documents presented by Plaintiffs, including Document 10, may be referenced to aid the court’s understanding of various technical concepts under the “technical terms and complex subject matter exception.” (Id. at 32.) In the footnote to their opposition brief, Federal Defendants renew their objection to consideration of any of the documents under the technical terms and complex subject matter exception. (Doc. 242-1 at 22 n. 12.) The May 13, 2006 memorandum decision notes: “Defendants and Defendant Intervenors suggest that Plaintiff has failed to establish that the existing record is inadequate to explain the technical terms, but point to no authority requiring such a showing.” (Doe. 219 at 30.) Federal Defendants now assert: “numerous courts, including the Supreme Court and district courts in this Ninth Circuit, have held that a record may not be supplemented for explanatory purposes unless the existing record has been demonstrated inadequate.” (Doc. 242-1 at 22 n. 12.), citing an unpublished district court decision, City of Santa Clarita v. United States Dept. Of Interior, 2005 WL 2972987 at *2 n. 3 (C.D.Cal.2005): ... Plaintiffs bear the burden of making an initial showing that the administrative record is inadequate for effective judicial review and that one of the exceptions to record review applies. Animal Defense Council v. Hodel, 840 F.2d at 1436-38 (affirming district court order limiting review to administrative record and prohibiting discovery because plaintiffs did not show record presented was insufficient for review or that any of the exceptions to record review were applicable).... (emphasis added). A district court decision not cited by Defendants, Karuk Tribe of Cal. v. U.S. Forest Serv., 379 F.Supp.2d 1071, 1087 (N.D.Cal.2005), reiterated this holding: The Ninth Circuit allows a reviewing court to consider extra-record materials in an APA case only under four narrow exceptions: (1) when it needs to determine whether the agency has considered all relevant factors and has explained its decision; (2) when the agency has relied upon documents or materials not included in the record; (3) when it is necessary to explain technical terms or complex matters; and (4) when a plaintiff makes a showing of agency bad faith. Southwest Center for Biological Diversity v. United States Forest Service, 100 F.3d 1443, 1450 (9th Cir.1996). For extra-record material to be considered, a plaintiff must first make a showing that the record is inadequate. Animal Defense Council v. Hodel, 840 F.2d 1432, 1437 (9th Cir.1988) (“The [plaintiff] makes no showing that the district court needed to go outside the administrative record to determine whether the [agency] ignored information”). At the *1088 same time, “[a] satisfactory explanation of agency action is essential for adequate judicial review, because the focus of judicial review is not on the wisdom of the agency’s decision, but on whether the process employed by the agency to reach its decision took into consideration all the relevant facts.” Asarco, Inc. v. U.S. Environmental Protection Agency, 616 F.2d 1153, 1160 (9th Cir.1980). (emphasis added). Karuk Tribe, and Animal Defense Council v. Hodel, 840 F.2d 1432, 1437 (9th Cir.1988), on which it relies, do stand for the proposition that, before admitting documents under any exception to the general rule against extra-record evidence, a court should require that a plaintiff make an initial showing that the existing record is insufficient. Here, defendants maintain that those documents plaintiffs have referenced to explain complex or technical matters, are “the cart before the horse,” because Plaintiffs have not shown the existing record is inadequate. First, Federal Defendants objection is arguably untimely. They did not cite eases requiring a preliminary showing of insufficiency when the motion to augment was briefed and heard. Nor did Federal Defendants timely move for reconsideration of the May 13, 2006 ruling on the motion to augment. Striking the challenged documents now, would cause prejudice to Plaintiffs, who relied upon these rulings to prepare their dispositive motions. Even assuming a timely and specific objection, on the merits, Plaintiffs’ extra-record documents were properly admitted. Of these twenty-two documents, Plaintiffs’ papers only referenced eight: Docs. 9, 10, 11, 12, 13, 20, 21 & 22. With the exception of Documents 12 and 22, all were admitted on multiple grounds. (Documents 12 and 22 were admitted for the limited purpose of explaining technical materials.) The documents and the bases for their admission are as follows: Document 9: Summary of Annual Joint Meeting of California Bay-Delta Authority and Bay-Delta Public Advisory Committee (December 8-9, 2004). Admitted “for the limited purpose of determining whether USFWS failed to adequately consider the EWA/ CVPIA(b)(2) issue,” “for the limited purposes of determining whether USFWS failed to adequately consider the climate change issue and the scientific significance of any such failure ...and, as appropriate, to explain complex and technical matters. Document 10: Climate Change Uncertainties & CALFED Planning: What Are Current Observations and Models Saying? Powerpoint presentation by Michael Dettinger, U.S. Geological Survey at the Scripps Institute for Oceanography, et al. to Bay-Delta Authority (December 8, 2004). Admitted “for the limited purposes of determining whether USFWS failed to adequately consider the climate change issue and the scientific significance of any such failure,” and as appropriate, to explain complex and technical matters. Document 11: Summary of Annual Joint Meeting of California Bay-Delta Authority and Bay-Delta Public Advisory Committee (February 9-10, 2005). Admitted “for the limited purpose of showing that USFWS failed to consider relevant Delta smelt population data and its scientific significance,” and, as appropriate, to explain complex and technical matters. Document 12: Letter from H. Candee and K. Poole, NRDC, to S. Thompson re Consultation on OCAP: Significant New Delta Smelt Information, Service (Feb. 14, 2005). Admitted only to explain, as appropriate, complex and technical matters. Document 13: Delta smelt abundance trends, Powerpoint presentation by Chuck Armor, DFG, to Bay-Delta Authority Admitted “for the limited purpose of showing that USFWS failed to consider relevant Delta smelt population data and its scientific significance,” and, as appropriate, to explain complex and technical matters. Document 20: Supplemental Biological Opinion on CVP and SWP Operations, April 1, 2004 through March 31, 2006 (Feb. 27, 2004). Admitted “for the limited purpose of determining whether USFWS failed to adequately consider the EWA/ CVPIA(b)(2) issue,” and, as appropriate, to explain complex and technical matters. Document 21: Future Water Availability in the West: Will there be enough? Powerpoint presentation by M. Det-tinger to 24th Annual Conference on Water, Climate and Uncertainty: Implications for Western Water Law, Policy, and Management (June 11-13, 2003). Admitted “for the limited purposes of determining whether USFWS failed to adequately consider the climate change issue and the scientific significance of any such failure ...,” and, as appropriate, to explain complex and technical matters. Document 22: Letter from John W. Keys, Bureau, to Hon. George Miller, House of Representatives re Bureau’s renewal of CVP water contracts (Dec. 23, 2004). Admitted only to explain, as appropriate, complex and technical matters. With the exception of Documents 12 and 22, Plaintiffs were permitted to reference these documents to show whether FWS adequately considered included subject matter to support the BiOp. Although Plaintiffs did not expressly demonstrate that the record was insufficient, a finding of insufficiency can be implied from the rulings admitting the documents. For example, Document 10, the powerpoint presentation regarding “Climate Change Uncertainties & CALFED Planning” presented to the Bay-Delta Authority on December 8, 2004, references climatological information and issues not otherwise discussed in the administrative record, bearing on whether FWS failed to adequately consider the climate change issue. The same reasoning applies to Documents 9, 10, 11, 13, 20 & 21. As for Documents 12 and 22, were which were only admitted under the complex and technical matters exception, no prior showing of insufficiency was made. However, Documents 12 and 22 were only referenced as secondary citations or for context. Even if, any document was admitted in error, no prejudice has resulted. V. STANDARD OF REVIEW Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Pro. 56(c). This is a challenge to the lawfulness of a biological opinion brought under the ESA and the Administrative Procedure Act (“APA”). Agency decisions made under the ESA are governed by the APA, which requires that the agency action be upheld unless it is found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (D). The inquiry is designed to “ensure that the agency considered all of the relevant factors and that its decision contained no clear error of judgment.” Pacific Coast Fed’n of Fishermen’s Ass’ns v. NMFS, 265 F.3d 1028, 1034 (9th Cir.2001). Agency action should only be overturned 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.” Id. In sum, a court must ask “whether the agency considered the relevant factors and articulated a rational connection between the facts found and the choice made.” Id. “A biological opinion is arbitrary and capricious and will be set aside when it has failed to articulate a satisfactory explanation for its conclusions or when it has entirely failed to consider an important aspect of the problem.” Greenpeace v. NMFS, 80 F.Supp.2d 1137, 1147 (W-D.Wash.2000). Alternatively, a biological opinion may also be invalid if it fails to use the best available scientific information as required by 16 U.S.C. § 1536(a)(2). Id. at 1150. As a general rule, a court must defer to the agency on matters within its expertise. See National Wildlife Federation v. National Marine Fisheries Service, 422 F.3d 782, 798 (9th Cir.2005). However, “[t]he deference accorded an agency’s scientific or technical expertise is not unlimited.” Id. “Deference is not owed when the agency has completely failed to address some factor consideration of which was essential to [making an] informed decision.” Id. (internal citations and quotations omitted). A final BiOp is final agency action for judicial review purposes. American Rivers, infra, 126 F.3d at 1124-25. VI. SUMMARY OF PLAINTIFFS’ MOTION Plaintiffs move for summary judgment on the following grounds: (1) First, the BiOp did not utilize the Best Available Science by: (a) failing to reference the “most recent Delta Smelt abundance data,” namely the 2004 Fall Midwater Trawl Data; and (b) failing to consider the possible effects that climate change might have on the smelt’s habitat. (2) Second, the BiOp unlawfully relies upon the DSRAM as a mitigation measure because the DSRAM process is “entirely discretionary, uncertain, and unenforceable.” In addition, Plaintiffs allege that Federal Defendants acted arbitrarily and capriciously by relying upon the EWA, CVPIA(b)(2), and/or VAMP programs as water sources necessary to implement the DSRAM. Plaintiffs allege that Federal Defendants have (a) failed to demonstrate that EWA, CVPIA and/or VAMP will continue to be available over the 20-year term of the BiOp and (b) failed to demonstrate that DSRAM can reliably operate without water assets from those programs. (3) Third, there is no rational connection between the evidence in the record and the BiOp’s “no jeopardy” conclusion. Specifically, Plaintiffs allege (a) that the BiOp’s focus on salvage as the meas