Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW RE THE EXISTENCE OF IRREPARABLE HARM DURING THE INTERIM PERIOD AND DENYING PLAINTIFFS’ REQUESTS FOR EMERGENCY INTERIM REMEDIES REGARDING FLOWS ON CLEAR CREEK AND GATE OPERATIONS AT RED BLUFF DIVERSION DAM OLIVER W. WANGER, District Judge. TABLE OF CONTENTS I. INTRODUCTION.........................................................1198 II. CONCLUSIONS OF LAW..................................................1199 A. Jurisdiction .........................................................1199 B. Agencies’ General Obligations Under the ESA ..........................1199 C. ESA § 7(a) Only Applies to Actions that Fall Within a Federal Agency’s Discretion ................................................1200 D. Remand Without Vacatur.............................................1202 E. The Bureau’s 7(d) Obligations During Re-Consultation .................1203 F. Standard for Issuance of Preliminary Injunctive Relief In ESA Cases.... 1203 (1) Likelihood of Success on the Merits ................................1205 (2) “Reasonable Likelihood” of Irreparable Harm.......................1206 (a) Injunctive Relief is Not Automatic.............................1206 (b) Likely Extirpation Is Not the Standard.........................1207 (c) Reduce Appreciably the Likelihood of Survival or Recovery I Appreciably Diminish the Value of Critical Habitat....................................................1207 (3) Burden Shifting..................................................1210 (4) Should Evaluation of “Significance” Occur at the ESU or Population Level?..............................................1211 (5) The Impacts of Project Operations Must be Evaluated in the Context of Baseline Conditions ..................................1212 (6) Consideration of Recovery.........................................1213 (7) Economic Harm May Not Be Considered, But Public Safety is Relevant and Injunctive Relief Must Be Narrowly Tailored----1213 (8) Judicial Non-intervention.........................................1214 (9) FERC Jurisdiction: Feather River and Oroville Dam................1215 III. FINDINGS OF FACT.....................................................1215 A. Overview of Salmonid Life History.....................................1215 (1) Winter-Run Biology, Location and Movement.......................1216 (2) Spring-Run Biology, Location and Movement.......................1217 (3) Central Valley Steelhead Biology, Location and Movement...........1217 B. Current Status of the Species..........................................1218 (1) Overview ........................................................1218 (2) Winter-Run......................................................1219 (3) Spring-Run......................................................1221 (4) Steelhead........................................................1223 C. Impacts ftom Non-Project Related (Baseline) Conditions................1224 D. Project-Related Impacts..............................................1225 (1) Overview of Project Operations....................................1225 (2) Shasta Reservoir!Sacramento River Operations .....................1227 (a) Operations...................................................1227 (b) Winter-Run..................................................1229 (c) Spring-Run..................................................1230 (d) Steelhead....................................................1230 (e) Worst Case Scenario..........................................1230 (3) Impacts of Red Bluff Diversion Dam Operations.....................1231 (a) Impacts to Up-Migrating Adults During Entire Closure Season (Currently May 15 through Sept. 15)...................1232 (i) Overview of Impacts to Adult Salmonids During Entire Closure Season........................................1232 (ii) Impacts of RBDD to Spring-Run Adult Migration During Entire Closure Season..........................1233 (iii) Impacts of RBDD to Winter-Run Adult Migration During Entire Closure Season..........................1234 (iv) Impacts of RBDD to Steelhead Adult Migration During Entire Closure /Season.................................1234 (b) Emergency Request To Raise Gates Through July 15 ............1234 (c) Impacts to Juvenile Migration During Entire RBDD Closure Season & Plaintiffs’ Request to Open RBDD August 1, 2008____1236 (4) Predicted Impacts of Operations at Clear Creek.....................1238 (5) Feather River and Thermalito/Lake Oroville Complex ...............1240 (6) Folsom Dam/American River......................................1241 (7) New Melones Reservoir/Stanislaus River...........................1242 (8) CVP/SWP Export Operations......................................1243 (a) Sources of Juvenile Mortality..................................1243 (i) Direct Mortality ........................................1243 (ii) Indirect Mortality.......................................1244 (b) Protective Measures..........................................1246 (i) Incidental Take Limits..................................1246 (ii) Delta Cross Channel Operations..........................1248 (iii) Salmon Decision Tree ...................................1248 (c) Summary of Delta Impacts ..:.................................1249 E. Analysis of Overall Irreparable Harm/Jeopardy During Interim Period ............................................................1249 (1) Critical Habitat Analysis .........................................1249 (2) Will Interim Project Operations Appreciably or Considerably Diminish the Species Chances of Survival and Recovery?..........1250 (a) Conclusions Re: Winter-Run..................................1250 (b) Conclusions Re: Spring-Run..................................1251 (c) Conclusions Re: Steelhead....................................1252 IY. CONCLUSION ...........................................................1253 I. INTRODUCTION A memorandum decision and order, issued April 16, 2008 as amended May 20, 2008, granted in part and denied in part Plaintiffs’ Endangered Species Act (“ESA”) challenges to the 2004 biological opinion (“BiOp”) issued by the National Marine Fisheries Service (“NMFS”) on the effects of coordinated operation of two of California’s largest water projects, the federal Central Valley Project (“CVP”) and the State Water Project (“SWP”), on the endangered Sacramento River winter-run Chinook salmon, the threatened Central Valley spring-run Chinook salmon, and the threatened Central Valley steelhead. (See Doc. 256, 606 F.Supp.2d 1122, 2008 WL 2223070 (E.D.Cal.2008).) Plaintiffs move for injunctive relief. The parties submitted briefs and evidence on whether the species’ would be placed in jeopardy or their critical habitat threatened with adverse modification or destruction until such time as the new BiOP is released. (See Doc. 233, filed Apr. 29, 2008.) While the proceedings were in progress, Plaintiffs moved for emergency injunctive relief, suggesting the immediate implementation of a number of interim remedies was necessary to prevent jeopardy. Plaintiffs identified four remedies for immediate implementation, and seven additional remedies for implementation pending the March 2009 completion of the new BiOp. (Doc. 280, filed May 27, 2008.) An evidentiary hearing commenced June 6, 2008 and concluded July 3, 2008. The hearing focused on the status of the species, whether Project operations would result in jeopardy before the new BiOp is issued, and on the four “immediate” remedies. On June 20, 2008, after eight full days of testimony, Plaintiffs requested the court expedite decision on emergency injunctive relief to: (1) increase flows on Clear Creek for the benefit of those spring-run that spawn there; and (2) raise the gates at Red Bluff Diversion Dam (“RBDD”) through July 15, 2008. (6/20 Tr. 74:4-77:11.) Plaintiffs were concerned that ongoing adult Chinook migrations, if completed, would diminish the potential value of any relief. The request was granted, and focused, supplemental expert testimony and documentary evidence was received. Comprehensive testimony on the status of the species and the impacts of Project operations on the three species has been received from three expert fisheries biologists, Bruce Oppenheim, employed by NMFS, Dr. Christina Swanson of the Bay Institute, and Dr. Charles Hanson. Ronald Milligan, the Bureau’s Operations Manager of the CVP, and John Leahigh, Chief of the Project Operations Planning Branch for the SWP, both of whom are qualified experts in water project operations testified. Michael Urkov testified for Defendant-Intervenor Tehama Colusa Canal Authority, et at., (“TCCA”), and qualified as an expert regarding fish passage and operations at RBDD. After considering the testimony of the witnesses, the exhibits received in evidence, the written briefs of the parties, and oral arguments, the following findings of fact and conclusions of are entered. To the extent any finding of fact may be interpreted as a conclusion of law or any conclusion of law may be interpreted as a finding of fact, it is so intended. il. CONCLUSIONS OF LAW A. Jurisdiction. 1. Jurisdiction exists under 28 U.S.C. § 1331 (Federal Question), as this case arises under the ESA, 16 U.S.C. § 1536 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. § 702 et seq. 2. Defendant-intervenors San Luis & Delta-Mendota Water Authority, West-lands Water District, State Water Contractors, and Glenn-Colusa Irrigation District, et at., have voluntarily submitted themselves to the district court’s jurisdiction by intervening and fully participating in this litigation. Defendant-intervenors Department of Water Resources (“DWR”) and TCCA expressly submitted to the Court’s jurisdiction as a condition of their intervention in these interim remedy proceedings. (Docs. 247 & 248, filed May 15, 2008.) TCCA agreed to limit their participation to non-duplicative and non-cumulative issues that are unique to RBDD and TCCA. B. Agencies’ General Obligations Under the ESA. 3. ESA Section 7(a)(2) prohibits agency action that is “likely to jeopardize the continued existence” of any endangered or threatened species or “result in the destruction or adverse modification” of its critical habitat. 16 U.S.C. § 1536(a)(2). 4. To “jeopardize the continued existence of’ means “to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.” 50 C.F.R. § 402.02; see also Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917 (9th Cir.2008) (“NWF v. NMFS II”) (rejecting agency interpretation of 50 C.F.R. § 402.02 that in effect limited jeopardy analysis to survival and did not realistically evaluate recovery, thereby avoiding an interpretation that reads the provision “and recovery” entirely out of the text). An action is “jeopardizing” if it keeps recovery “far out of reach,” even if the species is able to cling to survival. Id. at 931. 5. “[A]n agency may not take action that will tip a species from a state of precarious survival into a state of likely extinction. Likewise, even where baseline conditions already jeopardize a species, an agency may not take action that deepens the jeopardy by causing additional harm.” Id. at 930. 6.The Supreme Court summarizes the operation of ESA Section 7: Section 7 of the ESA prescribes the steps that federal agencies must take to ensure that their actions do not jeopardize endangered wildlife and flora. Section 7(a)(2) provides that “[e]ach Federal agency shall, in consultation with and with the assistance of the Secretary [of Commerce or the Interior], insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an ‘agency action’) is not likely to jeopardize the continued existence of any endangered species or threatened species.” 16 U.S.C. § 1536(a)(2). Once the consultation process contemplated by § 7(a)(2) has been completed, the Secretary is required to give the agency a written biological opinion “setting forth the Secretary’s opinion, and a summary of the information on which the opinion is based, detailing how the agency action affects the species or its critical habitat.” § 1536(b)(3)(A); see also 50 CFR § 402.14(h). If the Secretary concludes that the agency action would place the listed species in jeopardy or adversely modify its critical habitat, “the Secretary shall suggest those reasonable and prudent alternatives which he believes would not violate [ § 7(a)(2) ] and can be taken by the Federal agency ... in implementing the agency action.” 16 U.S.C, § 1536(b)(3)(A); see also 50 CFR § 402.14(h)(3). Regulations promulgated jointly by the Secretaries of Commerce and the Interior provide that, in order to qualify as a “reasonable and prudent alternative,” an alternative course of action must be able to be implemented in a way “consistent with the scope of the Federal agency’s legal authority and jurisdiction.” § 402.02. Following the issuance of a “jeopardy” opinion, the agency must either terminate the action, implement the proposed alternative, or seek an exemption from the Cabinet-level Endangered Species Committee pursuant to 16 U.S.C. § 1536(e) Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 127 S.Ct. 2518, 2526, 168 L.Ed.2d 467 (2008). 7. In making determinations under the ESA, agencies must “use the best scientific and commercial data available.” 16 U.S.C. § 1536(a)(2). C. ESA § 7(a) Only Applies to Actions that Fall Within a Federal Agency’s Discretion. 8. The Supreme Court recently upheld an NMFS/U.S. Fish and Wildlife Service (“USFWS”) regulation interpreting ESA § 7(a)(2) as only applying to actions “in which there is discretionary federal involvement or control.” Home Builders, 127 S.Ct. 2518 (interpreting 50 C.F.R. § 402.03). Home Builders addressed EPA’s decision to transfer to the State of Arizona its National Pollutant Discharge Elimination System (“NPDES”) permitting power under the Clean Water Act. The Home Builders Court held that this decision was non-discretionary: While the EPA may exercise some judgment in determining whether a State has demonstrated that it has the authority to carry out § 402(b)’s enumerated statutory criteria, the statute clearly does not grant it the discretion to add another entirely separate prerequisite to that list. Nothing in the text of § 402(b) authorizes the EPA to consider the protection of threatened or endangered species as an end in itself when evaluating a transfer application. And to the extent that some of the § 402(b) criteria may result in environmental benefits to marine species, there is no dispute that Arizona has satisfied each of those statutory criteria. Id. at 2536; see also NWF v. NMFS II, 524 F.3d 917, 927-28 (9th Cir.2008) (applying Home Builders, holding that despite existence of broad, unquantified statutory goals in applicable Reclamation statute, Bureau still retains discretion over Project operations and those operations are still subject to the ESA). 9.Certain aspects of the management of the CVP/SWP are non-discretionary as that term is utilized in Home Builders. Most importantly, in this case, federal Reclamation law requires the Bureau to comply with non-conflicting state water law. Reclamation Act of 1902, Pub.L. 57-161, 32 Stat. 288 at § 8 (June 17, 1902); Central Valley Project Improvement Act (“CVPIA”) § 3406(b), Pub.L. 102-575, 106 Stat. 4600 (Oct. 30, 1992). Specifically, the Bureau must comply with State Water Resources Control Board (“SWRCB”) water rights and water quality decisions. See CVPIA § 3406(b) (“The Secretary ... shall operate the [CVP] to meet all obligations under State and Federal law, including... .all decisions of the California State Water Resources Control Board establishing conditions on applicable licenses and permits for the project....”). 10. For example, the Bureau has a mandatory (i.e., non-discretionary) legal obligation to make releases from Shasta Reservoir for delivery to the Sacramento River Settlement Contractors. Under the Sacramento River Settlement Contracts, Settlement Contractors are entitled to 100% of their contractual supply in all years except so-called “Shasta Critical Years.” In Shasta Critical Years, Settlement Contractors’ priority supply may be reduced by 25 percent. This mandatory obligation derives from the priority of the Settlement Contractors’ water rights, which facilitated issuance of state water permits to the Bureau to operate the CVP. The CVP’s water rights are subject to the Settlement Contractors’ rights. See e.g., SWRCB D-990 (granting water rights to the United States to operate the CVP, while also recognizing and prioritizing the protection of existing rights on the Sacramento River). 11. Non-priority water service contracts for irrigation and municipal and industrial uses by north-of-Delta, in-Delta, and south-of-Delta CVP contractors are, for the purposes of Home Builders, “discretionary” and are subject to the ESA. See NRDC v. Houston, 146 F.3d 1118, 1126 (9th Cir.1998); O’Neill v. United States, 50 F.3d 677, 686 (9th Cir.1995). 12. When Congress authorized the CVP in 1937, it stated that Project “dams and reservoirs shall be used, first, for river regulation, improvement of navigation, and flood control; second, for irrigation and domestic uses; and, third, for power.” Act of Aug. 26, 1937, ch. 832, 50 Stat. 844, 850; see also United States v. SWRCB, 182 Cal.App.3d 82, 135, 227 Cal.Rptr. 161 (1986). In 1992, Congress explicitly amended this hierarchy of use by enacting sections 3406(a) and (b) of the CVPIA, which make protection of non-ESA listed fish and wildlife co-equal priorities with irrigation. The CVPIA also expressly reaffirms the Bureau’s obligation to comply with the ESA in operating the CVP. See CVPIA § 3406(b) (“The Secretary ... shall operate the [CVP] to meet all obligations under State and Federal law, including. .. .the [ESA],...”). 13. As a top priority, the Bureau must “ ‘insure that actions authorized funded or carried out by [it] do not jeopardize the continued existence’ of a listed species,” even if doing so would require that the Bureau “alter ongoing projects in order to fulfill the goals of the Act.” TVA v. Hill, 437 U.S. 153, 186, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) (quoting 16 U.S.C. § 1536(a)(2)). D. Remand Without Vacatur. 14. All defendants seek to keep the BiOP in place without vacatur and to retain the BiOp’s Incidental Take Permit (and associated take limits) during reconsultation until the new BiOp is issued. 15. The 2004 BiOp has been found unlawful, arbitrary, and capricious. (Doc. 256 at 146, 606 F.Supp.2d at 1193-94.) The usual remedy under such circumstances is remand to the agency. See Florida Power & Light v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). The court has the discretionary authority to impose a deadline for remand proceedings. Nat’l Org. of Veterans’ Advocates v. Sec’y of Veteran’s Affairs, 260 F.3d 1365, 1381 (Fed.Cir.2001). NMFS shall complete the new BiOp on or before March 2, 2009. 16. If the BiOp and its incidental take statement are vacated, the Bureau and DWR could be compelled to completely stop Project operations if they incidentally take one of the endangered species. Inoperative Projects would not maintain the status quo, but would instead produce catastrophic results to the public and all parties in interest. Plaintiffs, responsibly, have not suggested shutting down the Projects. 17. Vacating the BiOp would also remove the beneficial measures, terms, and conditions of the BiOp, such as numerous mitigation and adaptive management measures that to some extent are acknowledged by Plaintiffs as providing protection for the species. The BiOp also imposes other beneficial non-discretionary terms and conditions, including temperature controls on CVP and SWP managed rivers and restrictions on the operation of the Delta Cross Channel gates and RBDD gates. (Pltfs Ex. (“PE”) 3 at 212-16.) 18. Due to the disastrous disruptions that vacatur of the BiOp would cause to the vital water supply functions the CVP and SWP serve and the concomitant loss of protective measures for the species included in the BiOp and Incidental Take Statement, it appears most reasonable that the BiOp be remanded without vacatur, once further explanation of the steelhead take limit is provided. Agency decisions may remain in place, pending the completion of remand, even where they have been found “arbitrary and capricious.” See NRDC v. U.S. Dept. of the Interior, 275 F.Supp.2d 1136, 1143 (C.D.Cal.2002); Nat’l Wildlife Fed’n v. NMFS, 254 F.Supp.2d 1196, 1215-16 (D.Or.2003) (remanding BiOp without vacatur). 19. Nevertheless, the BiOp is subject to ESA Section 7(d) requirements. E. The Bureau’s 7(d) Obligations During Re-Consultation. 20. Here, the Bureau voluntarily re-initiated consultation with NMFS over the 2004 OCAP. ESA section (7)(d) governs the Bureau’s actions during consultation and provides in relevant part: After initiation of consultation required under subsection (a)(2), the Federal agency and the permit or license applicant shall not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a)(2) of this section. 16 U.S.C. § 1536(d). “Section 7(d) was enacted to ensure that the status quo would be maintained during the consultation process, to prevent agencies from sinking resources into a project in order to ensure its completion regardless of its impacts on endangered species.” Washington Toxics Coal. v. EPA, 413 F.3d 1024, 1034-35 (9th Cir.2005). “The purpose of the consultation process ... is to prevent later substantive violations of the ESA.” Id. at 1034 (citing Sierra Club v. Marsh, 816 F.2d 1376, 1389 (9th Cir.1987)). It is well-settled that a court can enjoin agency action pending completion of section 7(a)(2) requirements. Id. 21. During consultation, only “non jeopardizing” actions may continue. Id. at 1035. F. Standard for Issuance of Preliminary Injunctive Relief In ESA Cases. 22. In general, “the test for determining if equitable relief is appropriate is whether an injunction is necessary to effectuate the congressional purpose behind the statute.” Biodiversity Legal Found, v. Badgley, 309 F.3d 1166, 1177 (9th Cir.2002). 23. Outside the context of the ESA, the standard for granting a preliminary injunction balances plaintiffs likelihood of success against the relative hardship to the parties. The Ninth Circuit recognizes two different sets of criteria for preliminary injunctive relief. Under the traditional test, “a plaintiff must show: (1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to plaintiff if preliminary relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the public interest (in certain cases).” Taylor v. Westly, 488 F.3d 1197, 1200 (9th Cir.2007). An “alternative” test requires that “a plaintiff demonstrate either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor.” Id. “These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases. They are not separate tests but rather outer reaches of a single continuum.” Id. 24. In the Ninth Circuit, in ESA cases, the conventional preliminary injunctive relief standard is substantially modified. Nat’l Wildlife Fed’n v. NMFS, 422 F.3d 782, 793-94 (9th Cir.2005) (NWF v. NMFS I) (“The traditional preliminary injunction analysis does not apply to injunctions issued pursuant to the ESA.”). In cases involving the ESA, Congress removed from the courts their traditional equitable discretion in injunction proceedings of balancing the parties’ competing interests. As the Supreme Court has noted, “Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities.” TVA v. Hill, 437 U.S. 153, 194, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). Accordingly, courts “may not use equity’s scales to strike a different balance.” Sierra Club v. Marsh, 816 F.2d 1376, 1383 (9th Cir.1987); see also Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1073 (9th Cir.1996) (“Congress has determined that under the ESA the balance of hardships always tips sharply in favor of endangered or threatened species.”). Id. (citations omitted); see also TVA, 437 U.S. at 187-88, 98 S.Ct. 2279 (concluding that Congress determined in the ESA that the value of endangered species is “incalculable” and prohibiting the balancing of economic harms against the Congressionally determined public interest in preserving endangered species); Home Builders, 127 S.Ct. at 2537 (reaffirming holding from TVA v. Hill that economic burden of enforcing the ESA cannot be considered by the courts, concluding that “the ESA’s no-jeopardy mandate applies to every discretionary agency action-regardless of the expense or burden its application might impose”); Nat’l Wildlife Fed’n v. Burlington N. R.R., Inc., 23 F.3d 1508, 1510-11 (9th Cir.1994) (“In cases involving the ESA, Congress removed from the courts their traditional equitable discretion in injunction proceedings of balancing the parties’ competing interests.”); Sierra Club v. Marsh, 816 F.2d 1376, 1383 (9th Cir.1987) (courts “may not use equity’s scales to strike a different balance”); Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1073 (9th Cir.1996) (“Congress has determined that under the ESA the balance of hardships always tips sharply in favor of endangered or threatened species.”). 25. Under this modified standard, plaintiffs must nevertheless demonstrate (1) a likelihood of success on the merits, and (2) a “reasonable likelihood” of irreparable harm. See NWF v. NMFS I, 422 F.3d at 794; NWF v. Burlington, 23 F.3d at 1511 (re-affirming that non-traditional injunctive relief standard applies, but finding that Plaintiffs still need to show likelihood of future injury to members of the endangered species). (1) Likelihood of Success on the Merits. 26. With respect to likelihood of success, Plaintiffs have already succeeded on the merits of their ESA claims regarding the legality of the 2004 BiOp. 26.1. TCCA suggests that at least with respect to the request for modifications to the operations of RBDD, Plaintiffs “cannot establish any likelihood of success on the merits” because the district court ruled in favor of the federal defendants on the issue of sufficiency of the adaptive management plan and mitigation measures for RBDD. TCCA assigns too much significance to the summary judgment ruling on that issue. The summary judgment decision found serious substantive errors throughout the BiOp. For example, NMFS failed to explain contradictory evidence as to the survival and recovery of the species and their habitat; failed to analyze the effect of the Projects on critical habitat; failed to evaluate the impact of the Projects in light of the species’ life cycles; failed to properly evaluate the baseline; and failed to evaluate the effects of climate change. (Doc. 256, filed May 20, 2008, 606 F.Supp.2d 1122.) 26.2. With respect to the mitigation measures, Plaintiffs raised essentially the same challenge in this case as in the smelt case, arguing that the mitigation measures are not sufficiently definite and enforceable. Although the salmonid mitigation measures were found sufficiently certain and mandatory to be enforceable, the decision did not validate all mitigation measures as applied or find that the measures fully satisfy NMFS’ and the Bureau’s Section 7(a)(2) responsibilities with respect to any aspect of ongoing joint Project operations. Such a finding would directly conflict with the holding that NMFS failed to adequately analyze critical factors, like the impact of Project operations, including RBDD operations, on the species’ recovery and critical habitat. Rather, the summary judgment decision determined that the mitigation measures identified in the BiOp were sufficiently certain to occur to be enforceable and implementable, and were distinguishable from the Delta Smelt Risk Assessment Matrix, which required no more than that agency scientists and representatives consult, and, despite ascertained action triggers and catastrophic conditions, the mitigation measures had never been implemented to protect the smelt. (2) “Reasonable Likelihood” of Irreparable Harm. (a) Injunctive Relief is Not Automatic. 27. Plaintiffs assert that, in light of Congressional pronouncements regarding the primacy of preserving endangered species, whenever an ESA violation has been conclusively established, as here, the “appropriate remedy” is to enjoin agency action until there has been “substantial compliance with [the ESA’s] procedural requirements.” Thomas v. Peterson, 753 F.2d 754, 764 & n. 8 (9th Cir.1985). 28. This is not the approach the Ninth Circuit took in reviewing a district court’s issuance of injunctive relief under the ESA in NWF v. NMFS I, 422 F.3d at 793, where the district court invalidated the controlling BiOp, and then heard plaintiffs’ request for injunctive relief pending completion of a new BiOp. Id. at 796-97. The district court analyzed whether irreparable harm would result from Columbia River Power System operations pending completion of the remand. Id. The Ninth Circuit affirmed this approach, holding that “[a]l-though not every statutory violation leads to the ‘automatic’ issuance of an injunction in the context of the ESA ‘the test for determining whether equitable relief is appropriate is whether an injunction is necessary to effectuate the congressional purpose behind the statute.’ ” Id. at 795 (quoting Badgley, 309 F.3d at 1177) (emphasis added). Cf. Lands Council v. U.S. Forest Serv., 537 F.3d 981 (9th Cir.2008) (declining, in a NEPA case, “to adopt a rule that any potential environmental injury automatically merits an injunction. ...”). 29. Plaintiffs correctly assert that in every published ESA case in which likelihood of success was established, an injunction issued. However, Plaintiffs’ conclusion that an ESA violation automatically, a fortiori, requires injunctive relief is overstated. In each case cited by the parties, including those in which some language suggests injunctive relief must follow an ESA violation, the existence of irreparable harm was evaluated. 30. There is considerable disagreement and confusion about what should be considered “irreparable harm” for purposes of these injunctive relief proceedings. The Ninth Circuit has not articulated a standard or threshold at or above which ESA “harm” is considered “irreparable.” (b) Likely Extirpation Is Not the Standard. 31. Federal Defendants and Defendant Interveners repeatedly refer to the species’ “extirpation” or extinction as the benchmark for determining the necessary irreparable harm to justify interim injunctive relief. A court need not wait until the species is immediately threatened with extirpation to issue injunctive relief. See Am. Rivers v. U.S. Army Corps of Eng’rs, 271 F.Supp.2d 230, 258-59 (D.D.C.2003) (injunction may issue if the number of individuals likely to be taken as a result of agency action during the time it will take to conclude litigation will cause “significant” harm to the species, even if there is “not the remotest possibility that the planned agency activity ... would eradicate the species”); Swan View Coal., Inc. v. Turner, 824 F.Supp. 923, 938 (D.Mont.1992) (threatened extinction not necessary for a finding of harm under the ESA), (c) Reduce Appreciably the Likelihood of Survival or Recovery/Appreciably Diminish the Value of Critical Habitat. 32. The Ninth Circuit test requires that agencies not take actions as to species that will reduce appreciably their likelihood of survival or recovery or appreciably diminish the value of their critical habitat. 32.1. “Jeopardize the continued existence” of means “to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild, by reducing the reproduction, numbers, or distribution of that species,” 50 C.F.R. § 402.02 (emphasis added), while prohibited “destruction or adverse modification” is “any direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species.” Id. (emphasis added). 32.2. Plaintiffs argue that any harm that is “appreciable” justifies equitable intervention. Plaintiffs maintain that under certain circumstances this standard is satisfied by the loss of one female salmon or steelhead capable of reproducing. 32.3. Plaintiffs assert that the term “appreciably” in the jeopardy context means “capable of being perceived or recognized by the senses; perceptible,” citing Black’s Law Dictionary. Plaintiffs argue that the meaning of “appreciably” is informed by the Ninth Circuit’s recent decision in NWF v. NMFS II, 524 F.3d 917, which held that an agency may not “gradually destrfoy]” a listed species or its critical habitat just because “each step on the path to destruction is sufficiently modest.” However, Plaintiffs quote NWF v. NMFS II out of context. That decision examines whether the agency was required to incorporate degraded biological conditions into the baseline for a jeopardy analysis. The Ninth Circuit reasoned: To “jeopardize the continued existence of’ means “to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.” 50 CFR § 402.02; 16 U.S.C. § 1536(a)(2). NMFS argues that, under this definition, it may satisfy the ESA by comparing the effects of proposed [project] operations on listed species to the risk posed by baseline conditions. Only if those effects are “appreciably” worse than baseline conditions must a full jeopardy analysis be made. Under this approach, a listed species could be gradually destroyed, so long as each step on the path to destruction is sufficiently modest. This type of slow slide into oblivion is one of the very ills the ESA seeks to prevent. Id. at 929-30 (emphasis added). This language does not define the term “appreciably” in the jeopardy inquiry, rather it considers the cumulative effects of incremental actions in light of baseline conditions. 32.4. Plaintiffs’ interpretation of “appreciably” to mean any “perceptible” effect would lead to irrational results, making any agency action that had any effects on a listed species a “jeopardizing” action. This is not the law, as such an interpretation conflicts with other provisions of the ESA that permit incidental take of a listed species. See 16 U.S.C. § 1536(b)(4) (describing procedure for issuance of incidental take statements), 1539(1)(B) (permitting incidental take). 32.5. Federal Defendants correctly note that NMFS and USFWS have interpreted the term “appreciably diminish” to mean “considerably reduce.” USFWS/ NMFS, ESA Section 7 Consultation Handbook (March 1998), at 4-34. The Consultation Handbook states: Adverse effects on individuals of a species or constituent elements or segments of critical habitat generally do not result in jeopardy or adverse modification determinations unless that loss, when added to the environmental baseline, is likely to result in significant adverse effects throughout the species range, or appreciably diminish the capability of the critical habitat to satisfy essential requirements of the species. Id. at 4-34 (emphasis added). The following definition for “appreciably diminish” is provided: Appreciably diminish the value: to considerably reduce the capability of designated or proposed critical habitat to satisfy requirements essential to both the survival and recovery of a listed species. Id. (emphasis added). 32.6. While not entitled to Chevron deference, the interpretations in the Consultation Handbook “are made in pursuance of official duty, based upon more specialized experience and broader investigations and information than is likely to come to a judge in a particular case,” and “constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Skidmore v. Swift & Co., 323 U.S. 134, 139-40, 65 S.Ct. 161, 89 L.Ed. 124 (1944). 32.7. The Consultation Handbook’s treatment of the term “appreciably” is NMFS’s interpretation of 50 C.F.R. § 402.02, and is “controlling” unless “plainly erroneous or inconsistent with the regulation.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989); see also Webber v. Crabtree, 158 F.3d 460, 461 (9th Cir.1998) (agency’s interpretation of its own regulation is accorded a “high degree” of deference unless plainly erroneous or inconsistent with regulation). Moreover, the Consultation Handbook was prepared ten years ago and is not a “post hoc rationalization[n].” Auer v. Robbins, 519 U.S. 452, 462, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). The Court has “no reason to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question.” Id. 32.8.NMFS’s interpretation of the term appreciably is entitled to Skidmore deference. Plaintiffs’ overly expansive definition of “appreciably” reads the term out of the statute. See Forest Guardians v. Veneman, 392 F.Supp.2d 1082, 1092 (D. Arizona 2005) (refusing to apply dictionary definitions of appreciably and instead deferring to the Consultation Handbook’s interpretation of appreciably to mean significant or considerable biological effects). 33. The Handbook definition of “appreciably” is also consistent with how the concept of irreparable harm has been applied in practice. In NWF v. NMFS I, 422 F.3d 782, 795 (9th Cir.2005), the Ninth Circuit affirmed the issuance of a preliminary injunction where the district court found that the operation of the Columbia and Snake River dams “strongly contributed]” to the endangerment of listed species, citing the government’s own data showing “that between 78-92% of juvenile fall chinook salmon that remain in-river for their migration are killed by the operation of the dams even with mitigation measures, with a mean estimated kill of 86% of the salmon migrating in-river.” 34. American Rivers v. U.S. Army Corps of Engineers, 271 F.Supp.2d 230 (D.D.C.2003), defined “irreparable injury” as that which would result in significant take of the species and/or delays in implementing a recovery plan that would have significant impacts on the species. In American Rivers, for a population of plovers numbering approximately 2,000 and a population of terns numbering approximately 7,000, a delay in implementing a recovery program for the birds was found to constitute “irreparable injury” to their recovery and continued existence. Id. at 259. American Rivers also examined a population of sturgeon that numbered fewer than 2,000 and held that “any potential harm from delaying implementation [of the recovery action] is irreparable and must be avoided.” Id.; see also, Water Keeper Alliance v. U.S. Dept. of Defense, 271 F.3d 21, 34 (1st Cir.2001) (requiring a “concrete showing of probable deaths during the interim period and how those deaths might impact the species” (emphasis added)). 35. The approach taken in NWF v. NMFS I and American Rivers, that identifies “irreparable harm” as “significant” vis-a-vis the overall population, applies here. 36. However, the terms “significant” and “considerable” are imprecise and conclusory. Here, Plaintiffs expert opined that the combined effect of Project operations through the interim period are significant to the three species overall. The Defendants’ two experts opined that interim Project operations would not result in extinction during the interim period. (3) Burden Shifting. 37. Washington Toxics placed the burden of demonstrating that an action is non-jeopardizing on the acting agency. Placing the burden on the acting agency to prove the action is non-jeopardizing is consistent with the purpose of the ESA and what we have termed its “institutionalized caution mandate! ].” Sierra Club v. Marsh, 816 F.2d at 1389. We said as much in Thomas v. Peterson, where the defendant, the U.S. Forest Service, urged the district court to conclude that absent proof by the plaintiffs to the contrary, a proposed project was not likely to affect an endangered or threatened species. 753 F.2d at 765. We held that this was an inappropriate finding for the district court to make. Id. “It is not the responsibility of the plaintiffs to prove, nor the function of the courts to judge, the effect of a proposed action on an endangered species when proper procedures have not been followed.” Id. The district court correctly assigned EPA the burden of proving that its actions were non-jeopardizing. 413 F.3d at 1034-35. 38. After Washington Toxics, the ESA injunctive relief standard has been modified to place on the federal defendants the burden to demonstrate that their action will be “non-jeopardizing.” 39. The jurisprudence on this issue lacks clarity, because of a parallel line of cases that look for proof of “irreparable harm” rather than “no-jeopardy” before an injunction may issue. See, e.g., NWF v. NMFS I, 422 F.3d 782 (requiring showing of irreparable harm before enjoining agency conduct during an interim period while consultation was ongoing). Does the burden of showing “non-jeopardy” equate to a burden to show that Project operations will cause no “irreparable harm”? If so, then according to the definition of “irreparable harm” articulated above, Federal Defendants bear the burden of showing that Project operations will not considerably reduce the species’ chances of survival or recovery or considerably reduce the value of their critical habitat. 40. In the only published case that specifically recognizes the burden-shifting approach of Washington Toxics, Defenders of Wildlife v. Martin, 454 F.Supp.2d 1085, 1097 (E.D.Wash.2006), the district court acknowledged the burden shifting holding, but then largely ignored it, placing the burden upon Plaintiffs to show irreparable harm. Id. at 1098-99. 41. No further treatment of the burden-shifting issue is required, because Federal Defendants, despite Defendant Interveners’ contrary contention, accepted the burden of proving their actions are non-jeopardizing. Applying the NMFS/ USFWS definition of “appreciable,” in order to show that their actions are non jeopardizing, the Federal Defendants must prove that Project operations during the interim period will not significantly or considerably reduce the species’ chances of survival and recovery and will not significantly or considerably reduce the value of their critical habitat. (4) Should Evaluation of “Significance” Occur at the ESU or Population Level? 42. The evidence regarding the significance of impacts to the spring-run has been presented in two ways: (1) relative to the entire evolutionarily significant unit (“ESU”) for each species; and (2) relative to those populations of each species that spawn above RBDD and/or within Clear Creek. 43. The parties agreed in open court that jeopardy should be determined at the level of each species’ entire ESU. (6/27 Tr. 100:1-101:16.) This is consistent with the interpretation of “jeopardy or adverse modification” set forth in the Consultation Handbook, at p. 4-34: The determination of jeopardy or adverse modification is based on the effects of the action on the continued existence of the entire population of the listed species or on a listed population, and/or the effect on critical habitat as designated in a final rulemaking. When multiple units of critical habitat are designated for particular purposes, these units may serve as the basis of the analysis if protection of different facets of the species’ life cycle or its distribution is essential to both its survival and recovery. Adverse effects on individuals of a species or constituent elements or segments of critical habitat generally do not result in jeopardy or adverse modification determinations unless that loss, when added to the environmental baseline, is likely to result in significant adverse effects throughout the species’ range, or appreciably diminish the capability of the critical habitat to satisfy essential requirements of the species. (emphasis added). 44. No evidence was offered that separate populations of spring-run or steelhead have been designated by final rulemaking. It is recognized that separate geographical locations for these species provide spatial diversity, which contributes to their survival and recovery. (See PE 1.) In contrast, the winter-run are a single geographical population in the mainstem upper Sacramento River. (PE 9 at 5:17-18.) (5) The Impacts of Project Operations Must be Evaluated in the Context of Baseline Conditions. 45. Plaintiffs place great weight on language from NWF v. NMFS II: “where baseline conditions already jeopardize a species, an agency may not take action that deepens the jeopardy by causing additional harm.” 524 F.3d at 930. In NWF v. NMFS II, the agency failed to incorporate degraded baseline conditions into its baseline analysis. Id. at 929. Plaintiffs are correct that the “[t]he proper baseline analysis is not the proportional share of responsibility the federal agency [action] bears for the decline in the species, but what jeopardy might result from the agency’s proposed actions in the present and future human and natural contexts.” Pac. Coast Fed’n of Fishermen’s Assoc. v. U.S. Bureau of Reclamation, 426 F.3d 1082, 1093 (9th Cir.2005). 46. The jeopardy and habitat destruction determinations cannot be based upon piecemeal evaluations of incremental actions above the baseline. NWF v. NMFS II, explains “[ujnder this approach, a listed species could be gradually destroyed, so long as each step on the path to destruction is sufficiently modest. This type of slow slide into oblivion is one of the very ills the ESA seeks to prevent.” 524 F.3d at 930; see also Am. Rivers, 271 F.Supp.2d at 258-59 (holding that jeopardy determination must “consider the ... proposed action in the context of [agency’s] overall management” of the action area and rejecting as invalid USFWS’s “ ‘incremental-step approach.’ ” (quoting Conner v. Burford, 848 F.2d 1441, 1457-58 (9th Cir.1988))). 47. However, Plaintiffs take these holdings too far by suggesting that whenever a listed species is in a state of “jeopardy,” an agency is prohibited from taking any action that would cause any further “deterioration in the species’ pre-action condition,” NWF v. NMFS II, 524 F.3d at 930, even if that further deterioration is de minimus. The relevant inquiry is whether the “action effects, when added to the underlying baseline conditions,” in the present and future human contexts, are cumulatively such that they would cause jeopardy as that term is defined by law and agency regulation. Id. The seminal holding of NWF v. NMFS II is that baseline conditions must be factored into the jeopardy analysis, cumulatively with the entirety of agency actions. 48. Irreparable harm to justify injunctive relief is shown when the agency action causes appreciable (i.e., considerable or substantial) harm to the species or its critical habitat, as measured by the combined effects of the action and underlying baseline conditions. (6) Consideration of Recovery. 49. Recovery of the three salmonid species must be considered as part of the jeopardy and adverse modification analyses. NWF v. NMFS II, 524 F.3d at 931-32; Gifford Pinchot Task Force v. U.S. Fish and Wildlife Serv., 378 F.3d 1059, 1070 (9th Cir.2004). Recovery means “improvement in the status of listed species to the point at which listing is no longer appropriate under the criteria set out in section 4(a)(1) of the [ESA].” 50 C.F.R. § 402.02. 50. However, “recovery impacts alone will not often prompt a jeopardy finding.” NWF v. NMFS II, 524 F.3d at 932. Only in “exceptional circumstances” could injury to recovery prospects result in a jeopardy finding. Id. at 931-32. (7) Economic Harm May Not Be Considered, But Public Safety is Relevant and Injunctive Relief Must Be Narrowly Tailored. 51. The district court is constrained from balancing the competing interests of protecting endangered species against the economic costs of an injunction, because “Congress has decided that under the ESA, the balance of hardships always tips sharply in favor of the endangered or threatened species.” Washington Toxics, 413 F.3d at 1035; see also United States v. Glenn-Colusa Irrig’n Dist., 788 F.Supp. 1126, 1132 (E.D.Cal.1992) (declining to consider the “social utility” of ordering defendant to cease operation of a pumping facility that was taking listed salmonids without a take permit). 52. During the Kempthome (Delta smelt) remedies hearing, objections were sustained to evidence of “pure economic harm,” but evidence was admitted about risks to human health and safety (including evidence regarding the health and safety effects of secondary adverse impacts like land subsidence, land fallowing leading to air quality impacts, and community dislocations arising from job losses). Further evidence was admitted to show the “water costs” of various remedial actions, as resulting water unavailability related to impacts on endangered species, safety consequences to communities (including to emergency services), and effects upon the structural integrity of Project facilities. 53. No party has presented any legal authority providing that purely economic interests may be balanced in an ESA injunctive relief case. (8) Judicial Non-intervention. 54. Concomitant with the requirement for narrow tailoring, the district court is bound by the general rule that a court should not substitute its judgment for that of the administrative agency. NWF v. NMFS I, 422 F.3d at 798-99; see also Lands Council, 537 F.3d 981, 993 (holding that when reviewing an agency decision, courts are to be “most deferential” when an agency is “making predictions within its area of expertise”). A federal court lacks the expertise and/or background in fish biology, hydrology, hydraulic engineering, water project operations, and related scientific and technical disciplines that are essential to determining how the water projects should be operated on a real time, day-to-day basis. The scientific, engineering, and operational constraints under which the Projects are managed on a day-to-day basis are of mind-boggling complexity and sensitivity, requiring the highest level of skill, competence, and experience. Plaintiffs did not offer an operations expert, nor do they profess to have such competence. 55.However, judicial deference is not unlimited. In NWF v. NMFS I, where NMFS’s BiOp had already been invalidated, the agency nevertheless argued that the district court was required to defer to its expertise. 422 F.3d at 798. The Ninth Circuit disagreed, finding that, because the district court had already invalidated NMFS’s BiOp “in large part because it omitted factors essential to the analysis,” there was no formal agency findings to which deference was owed. Id. at 799. The agency in NWF v. NMFS I presented its case through expert affidavits. Id. Under such circumstances, the district court properly ordered injunctive relief after finding that planned operations could cause irreparable harm. Id. 56. The narrow tailoring requirement means that a court should interfere with complex managerial decisions no more than absolutely necessary, (9) FERC Jurisdiction: Feather River and Oroville Dam. 57. The Federal Power Act precludes review by district courts of operations regulated by the Federal Energy Regulatory Commission (“FERC”). Title 16 U.S.C., section 825i(b) confers exclusive jurisdiction upon the Courts of Appeals to review and make substantive modifications to FERC licensing orders. Section 8251(b) provides, in relevant part, that “[a]ny party to a proceeding under this chapter aggrieved by an order issued by [FERC] in such proceeding may obtain review of such order in the United States Court of Appeal ... Upon the filing of such petition such court shall have jurisdiction, which upon the filing of the record with it shall be exclusive, to affirm, modify, or set aside such order in whole or in part.” 58. According to the Supreme Court, in drafting section 825i(b), Congress prescribed the specific, complete, and exclusive mode for judicial review of FERC orders. City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 335-336, 78 S.Ct. 1209, 2 L.Ed.2d 1345 (1958). “Hence, upon judicial review of the Commission’s order, all objections to the order, to the license it directs to be issued, and to the legal competence of the licensee to execute its terms must be made in the Court of Appeals or not at all.” Id. at 336, 78 S.Ct. 1209. 59. This rule applies to cases involving the ESA. It precludes the district court from exercising jurisdiction over ESA-related matters covered by a FERC license. See Idaho Rivers United v. Foss, 373 F.Supp.2d 1158, 1160-1161 (D.Idaho 2005). 60.Here, DWR’s operations on the Feather River, through the Oroville/Thermalito Dam Complex, are currently subject to an annual FERC license. The fifty-year license has expired and a new long-term licence is in the final stages of the renewal process following executed settlement agreements among the parties in interest. Feather River operations covered by the FERC license are not within the jurisdiction of the district court. III. FINDINGS OF FACT A. Overview of Salmonid Life History. 1. Winter-run Chinook salmon, spring-run Chinook salmon, and steelhead are anadromous species that spawn in freshwater but rear for a portion of their lives in coastal marine waters. (Def. Int. Ex. (“DI”) B at Ex. 2; 6/6 Tr. 89:7-15.) 2. The fecundity (number of eggs produced) is typically 7,000 eggs per female steelhead and spring-run salmon, and approximately 3,000-4,000 eggs per female winter-run salmon. (6/6 Tr. 199:17-22; DI B at ¶6; 6/18 Tr. 180:22-23; 6/19 Tr. 47:16-25.) In general, for the population to remain stable, only two eggs from each spawning female need to survive to reproduce as adults. (DI B at ¶ 6.) 3. Chinook salmon and steelhead migrate upstream from the ocean, through the Delta, and into Central Valley rivers and creeks during the fall, winter, and spring months, depending on the species. (DI B at ¶ 7.) The run name for Chinook salmon, such as winter-run, reflects the seasonal timing of adult upstream migration. (Id.) The adults of some salmonid species (e.g., fall-run, late fall-run, and steelhead) are sexually mature when they enter freshwater, while the adults of other species (e.g., spring-run and winter-run) are sexually immature and hold in upstream freshwater for a period of time before spawning. (Id.; Doc. 256 at 22:1-3, 22:13-15.) 4. Spawning occurs in the upper reaches of rivers and streams in areas characterized by relatively clean gravel of suitable size, in areas where water temperatures during spawning are cool (preferably less than 57°F). (DI B at ¶ 7; Doc. 256 at 23:5-9, 23:9-11.) The female digs a shallow depression in the gravel (redd) where the eggs are deposited and fertilized by the male. (DI B at ¶7.) The fertilized eggs are then covered by a shallow layer of gravel. (Id.) Water flow through the gravel and water temperatures are two of the factors that affect hatching success. (Id.) After hatching, the young salmonids remain in the gravel redd until they have absorbed the yolk-sac and begin to emerge into the surface waters. (Id.) 5. For some salmonid species such as fall-run Chinook salmon, juvenile rearing in freshwater is relatively short (a period of months). (DI B at ¶ 8.) Some juveniles rear in upstream areas and migrate downstream as smolts (meaning that they are physiologically capable of the transition from freshwater to saltwater). (Id.) Others in the population migrate downstream shortly after emergence as fry and rear in the lower reaches of the rivers and the Delta until ready to move into saltwater. (Id.) In other species, such as winter-run, spring-run, and steelhead, the juveniles rear in upstream river habitat for one or more years before migrating downstream through the Delta into the ocean. (Id.) 6. Juvenile salmonids rear in coastal marine waters for a period of typically two to five years, where they feed on marine macroinvertebrates (e.g., krill, amphipods, squid, etc.) and small fish. (DI B at ¶ 9.) (1) Winter-Run Biology, Location and Movement. 7. The Sacramento River winter-run Chinook salmon ESU is listed as “endangered” under the ESA. 70 Fed. Reg. 37,-160 (June 28, 2005). Adult winter-run Chinook salmon migrate upstream from the Pacific Ocean through the Bay-Delta estuary during November through March, moving upstream into the Sacramento River near Redding during December through April, with the greatest movement during late February through late March. (6/1 Tr. 51:25 to 52:3; DI B at Ex. 3; Doc. 256 at 22:21-26.) The adults are sexually immature when migrating upstream and hold in the mainstem river for a period of months prior to spawning. (DI B at ¶ 10.) 8. Spawning typically occurs in the mainstem Sacramento River downstream of Keswick Dam during April through August, with the greatest spawning activity typically taking place during May. Egg incubation occurs between April and late September. (DI B at ¶ 10; Doc. 256 at 23:11-13.) Juvenile rearing and emigration typically occurs between July and February in the upper Sacramento River, with juvenile migration downstream through the Delta taking place between late November and May. (DI B at ¶ 10 & Ex. 3.) The geographic distribution of winter-run Chinook salmon spawning is currently limited to the mainstem Sacramento River in the reach from Keswick Dam to Red Bluff. (DI B at ¶ 10 & Ex. 4; 6/6 Tr. 72:11-19, 73:1-3; PE 9 at 5:17-18.) However, the actual distribution of spawning and egg incubation within the reach varies among years in response to water temperatures, adult abundance, and other factors. (DI B at ¶ 10.) 9. Juvenile and adult winter-run Chinook salmon use the entire Sacramento River, the Delta, and downstream bays (e.g., Suisun, San Pablo, and central San Francisco Bays) as juvenile rearing habitat and a migratory corridor. (6/6 Tr. 72:16-19; DI B at ¶ 10.) 10. Critical habitat for winter-run Chinook salmon has been identified to include the Sacramento River, Delta, and down: stream bays to the Golden Gate Bridge. (DI B at ¶ 10; Doc. ¶ 56 at 25:7-15.) (2) Spring-Run Biology, Location and Movement. 11. Adult spring-run Chinook salmon migrate upstream from the Pacific Ocean through the Bay-Delta estuary during January through mid-May, moving upstream into the Sacramento River near Redding, major tributaries such as Mill, Deer, and Butte Creeks, and the Feather River during late March through September, with the greatest movement during May. (6/10 Tr. 52:7-10; DI B at ¶ 11 & Ex. 5; 6/19 Tr. 16:5-7.) The adults are sexually immature when migrating upstream and hold in the mainstem river and tributaries for a period of months prior to. spawning. (DI B at ¶ 11; 6/10 Tr. 60:25-61:1, 62:10-16; Doc. 256 at 22