Citations
- 996 F. Supp. 2d 887
Full opinion text
MEMORANDUM DECISION AND ORDER RE CROSS MOTIONS FOR SUMMARY JUDGMENT (DOCS. 68, 75, 78)
LAWRENCE J. O’NEILL, District Judge.
I. INTRODUCTION
This case concerns approval by the United States Department of the Interior and its member agency the United States Bureau of Reclamation (collectively, “Federal Defendants,” “Reclamation,” or the “Bureau”) of eight (8) interim renewal contracts (“Interim Contracts”) which authorize delivery of water from federal reclamation facilities to certain water districts served by the federal Central Valley Project (“CVP”) and provide for repayment of capital construction costs, as well as operational and maintenance expenses associated with CVP facilities. First Amended Complaint (“FAC”), Doc. 47 at ¶ 2. Plaintiffs’ remaining claim alleges that Federal Defendants’ issued a deficient Environmental Assessment (“EA”) and associated Finding of No Significant Impact (“FON-SI”) prior to approval of the Interim Contracts, in violation of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq.
Before the Court for decision are cross motions for summary judgment filed by all parties. Plaintiffs filed their motion for summary judgment on September 6, 2013. Doc. 68. On October 2, 2013, pursuant to a request from Federal Defendants, this case was stayed in light of the federal government shutdown, and the briefing schedule was suspended. Doc. 71. The stay expired on October 21, 2013, when appropriations were restored. Doc. 72. Federal Defendants’ subsequent, unopposed motion for a ten-day extension of time was granted. Doc. 75. Federal Defendants filed an opposition to Plaintiffs’ motion as well as a separate cross motion on November 7, 2013, although the two memoranda are identical. Docs. 75-77. Also on November 7, Defendant Interve-nors, Westlands Water District, San Luis Water District, and Panoche Water District, also filed an opposition, as well as a distinct cross motion. Doc. 78-80. After receiving a 22-day extension of time, Doc. 82, Plaintiffs filed a reply to their own motion for summary judgment on Decern-ber 26, 2013, as well as an opposition to Federal Defendants’ cross-motion, and a separate opposition to Defendant Interve-nors’ cross-motion. Docs. 83-84. Federal Defendants and Defendant Intervenors also filed replies. Docs. 86-86.
Having thoroughly reviewed the papers and those portions of the extensive Administrative Record (“AR”) cited by the parties, the Court believes that the issues are sufficiently developed so as to obviate the need for oral argument. The Court therefore issues the following decision based upon the papers without a hearing pursuant to Local Rule 230(g).
II. BACKGROUND
The CVP is “a system of dams, reservoirs, levees, canals, pumping stations, hy-dropower plants, and other infrastructure that distributes water throughout California’s vast Central Valley.” San Luis Unit Food Producers v. United States, 709 F.3d 798, 801 (9th Cir.2013) (internal citation and quotation omitted). Although the CVP was originally planned by the State of California as a state project, the Federal government took over construction when California was unable to finance the project on its own. See Ivanhoe Irrig’n Dist. v. McCracken, 357 U.S. 275, 280, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958); S. Delta Water Agency v. United States, 767 F.2d 531, 534 (9th Cir.1985). “The essential components of the CVP have been operational since 1953 and certain of its facilities were in partial operation several years before.” S. Delta Water Agency, 767 F.2d at 534.
Facilities located in the northern portion of the Central Valley store waters of the Sacramento, Trinity, and American Rivers. These waters are transported south down the Sacramento River to the Sacramento-San Joaquin Delta, an area east of San Francisco Bay. The waters are then pumped from the Delta into the Delta Mendota Canal for southerly transportation to the San Joaquin River.
“The Bureau is the agency within the Department of the Interior charged with administering the CVP.” San Luis Unit Food Producers, 709 F.3d at 801.
Congress initially prioritized the purposes of the CVP as follows: “[T]he said dam 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.” CVP Act § 2 (1937) (emphasis added). However, Congress amended the CVP Act in 1992 with the Central Valley Project Improvement Act, Pub. L. No. 102-575, 106 Stat. 4600 (“CVPIA”), which re-prioritized the purposes of the CVP. O’Neill v. United States, 50 F.3d 677, 686 (9th Cir.1995). The hierarchy of purposes now reads, “[T]he said dam and reservoirs shall be used, first, for river regulation, improvement of navigation, and flood control; second, for irrigation and domestic uses and fish and wildlife mitigation, protection and restoration purposes; and, third, for power and fish and wildlife enhancement.” CVPIA § 3406(a)(2) (emphasis added); CVP Act § 2. The CVPIA also requires that the Bureau operate the CVP to “meet all obligations under State and Federal law, including but not limited to the Federal Endangered Species Act, 16 U.S.C. 1531 et seq.” CVPIA § 3406(b).
Id. at 801-02.
Under Federal Reclamation law, the Bureau delivers waters from CVP facilities to users pursuant to contracts, which provide for the repayment of a share of the CVP’s capital construction costs, along with a share of operational and maintenance costs. See 43 U.S.C. § 485h(e); see also Grant County Black Sands Irrig’n Dist. v. U.S. Bureau of Reclamation, 579 F.3d 1345, 1351-52 (Fed.Cir.2009). These contracts, frequently called “water service contracts” or “repayment contracts,” are the means by which some recovery of federal taxpayer investment in the CVP is legally tied to the delivery of water. See id.
The CVPIA also provides for renewal of pre-existing long-term water service contracts for successive periods of up to 25 years. CVPIA § 3404(c)(1), Pub. L. No. 102-575, 106 Stat. 4600 (1992). The CVPIA specifically called for completion of a programmatic Environmental Impact Statement “EIS” pursuant to NEPA that would analyze
the direct and indirect impacts and benefits of implementing this title, including all fish, wildlife, and habitat restoration actions and the potential renewal of all existing Central Valley Project water contracts. Such statement shall consider impacts and benefits within the Sacramento, San Joaquin, and Trinity River basins, and the San Francisco Bay/Sacramento-San Joaquin River Delta Estuary.
CVPIA § 3409 (emphasis added). Renewal of any long-term (i.e., 25-year) contract may not be authorized by Reclamation “until appropriate environmental review, including the preparation of the [PEIS] required in section 3409 ... has been completed.” CVPIA § 3404(c)(1). This requirement culminated in adoption of the Central Valley Project Improvement Act Final Programmatic Environmental Impact Statement (“CVPIA PEIS”), which was completed in 1999. FAC at p. 12. In January 2001, the Reclamation formally adopted the “Preferred Alternative” from the CVPIA PEIS in a Record of Decision (“CVPIA PEIS ROD”). AR 2418-2458. In addition, Reclamation began the process of preparing project-level EISs for long-term contract renewals for the West San Joaquin Division and San Luis Contractors. See FAC at 12. In September 2005, Reclamation prepared and released a draft EIS for these long-term contract renewals, but no final EIS has yet been adopted. See id.
The CVPIA provides for the eventuality that long-term contracts might expire pri- or to completion of appropriate environmental review:
Contracts which expire prior to the completion of the environmental impact statement required by section 3409 may be renewed for an interim period not to exceed three years in length, and for successive interim periods of not more than two years in length, until the environmental impact statement required by section 3409 has been finally completed, at which time such interim renewal contracts shall be eligible for long-term renewal as provided above. Such interim renewal contracts shall be modified to comply with existing law, including provisions of this title.
CVPIA § 3404(c)(1).
This ease concerns eight (8) such Interim Contracts, which authorize continuation
of water service on terms similar to previous Interim Contracts, which in turn continued water service previously provided pursuant to pre-existing long-term water contracts. See, e.g., AR 490-94 (Interim Contract No. 14-06-200-495 A-IR3, concerning water service to Westlands Water District). The type of water service contract at issue here does not guarantee that any particular volume of water will be delivered to the contractor. This is, in part, because each Interim Contract incorporates by reference a shortage provision that relieves the Bureau of liability for any direct or indirect damages arising from reduced deliveries to as a result of, among other things, “actions taken by the Contracting Officer to meet legal obligations .... ” Natural Res. Def. Council v. Kempthorne, 2008 WL 5054115 (E.D.Cal. Nov. 19, 2008), superseded in part on other grounds and clarified on other grounds, 621 F.Supp.2d 954, 627 F.Supp.2d 1212 (E.D.Cal.2009), 2009 WL 2424569 (E.D.Cal. Aug. 6, 2009). Deliveries are routinely reduced to meet legal obligations under the CVPIA the Endangered Species Act (“ESA”), and various decisions issued by the State Water Resources Control Board, among other things. See generally San Luis & Delta-Mendota Water Auth. v. United States, 672 F.3d 676 (9th Cir.2012). Accordingly, operational decisions, including decisions about how much water must be dedicated to “meet legal obligations,” rather than the Interim Contracts themselves, actually control deliveries.
On or about February 29, 2012, Reclamation issued a FONSI and EA regarding the “Three Delta Division and Five San Luis Unit Water Service Interim Renewal Contracts 2012-2014.” FAC ¶ 25. Based on the FONSI and EA, Reclamation approved the eight Interim Contracts at issue in this case. See, e.g., AR 212. Water delivery pursuant to the new two-year Interim Contracts commenced on March 1, 2012; the contract expires February 28, 2014. Id.
III. PROCEDURAL HISTORY
This case was originally filed in the Northern District of California on April 30, 2012, but was transferred to the Eastern District of California on August 6, 2012, because of the “long history- of litigation involving the CVP and CVPIA in the Eastern District, and the Eastern District’s familiarity with the background facts, contracts, and the relevant law.” Doc. 10 at 10. The FAC, filed December 4, 2012, contained two causes of action, alleging, generally: (1) that the EA prepared by Federal Defendants in connection with the eight Interim Contracts is inadequate; and (2) that Federal Defendants should have prepared an EIS. Doc. 47.
Federal Defendants and Defendant In-tervenors moved to dismiss both claims in the FAC. Docs. 45-46. A March 8, 2013, Order granted the motions in part. Doc. 52; Pac. Coast. Fed’n of Fishermen’s Assoc. v. U.S. Dep’t of the Interior, 929 F.Supp.2d 1039, 1044-46 (E.D.Cal.2013). Among other things, Plaintiffs, whose opposition to the motion to dismiss primarily focused upon undermining Federal Defendants’ choice of a “status quo” alternative as the “No Action Alternative,” appeared to concede that that the Proposed Action, which proposed only a small water pricing difference from the No Action Alternative, would not alter the status quo. See Doc. 48 at 12-13 (indicating assent to the proposition that the No Action Alternative as defined in this EA was the continuation of the status quo). Accordingly, after finding the No Action Alternative to be appropriate, the Court dismissed Plaintiffs’ second cause of action demanding that an EIS be prepared, relying in part on a line of cases which stand for the proposition that no EIS is required for a project that does not alter the status quo. Doc. 52, 929 F.Supp.2d at 1048-55. Plaintiffs did not request reconsideration of this ruling.
IV. LEGAL STANDARD
“NEPA is our ‘basic national charter for protection of the environment.’ ” Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1185 (9th Cir.2008) (quoting 40 C.F.R. § 1500.1) (“NHTSA ”). “Although NEPA does not impose any substantive requirements on federal agencies, it does impose procedural requirements.” N. Idaho Cmty. Action Network v. U.S. Dept. of Transp., 545 F.3d 1147, 1153 (9th Cir.2008). “Through these procedural requirements, NEPA seeks to make certain that agencies will have available, and will carefully consider, detailed information concerning significant environmental impacts, and that the relevant information will be made available to the larger public audience.” Id. (internal citations and quotations omitted).
NEPA requires federal agencies to analyze the potential environmental impacts of any “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). When an agency takes major federal action, the agency must prepare an EIS “where there are substantial questions about whether a project may cause significant degradation of the human environment.” Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1239 (9th Cir.2005).
An agency may choose to prepare an environmental assessment (“EA”) to determine whether an EIS is needed. 40 C.F.R. §§ 1501.4, 1508.9(b). An EA is meant to be a “concise public document ... that serves to,” among other things “[bjriefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.” 40 C.F.R. § 1508.9; see also Boh Marshall Alliance v. Hodel, 852 F.2d 1223, 1225 (9th Cir.1988). Based on the EA, the agency “may conclude that the action will not significantly affect the environment and issue a [FONSI].” Bob Marshall, 852 F.2d at 1225 (citing 40 C.F.R. § 1508.13).
An agency’s compliance with NEPA is subject to review under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701, et seq., pursuant to which a reviewing court may set aside agency actions that are:
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
* * *
Where a court is asked to review a factual dispute implicating “substantial agency expertise” of a technical nature, the court’s determination “is controlled by the ‘arbitrary and capricious’ standard. ...” Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 376, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989).
Review under the arbitrary and capricious standard is narrow, and we do not substitute our judgment for that of the agency. Rather we will reverse a decision as arbitrary and capricious only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation 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.
Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir.2008) (en banc) (internal quotations and citations omitted), overruled on other grounds by Am. Trucking Ass’ns Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.2009).
Certain agency decisions concerning the application of NEPA are not subject to the arbitrary and capricious standard. See Alaska Wilderness Recreation & Tourism Ass’n v. Morrison, 67 F.3d 723, 727 (9th Cir.1995). Alaska Wilderness concerned an agency’s decision not to prepare an EIS based not upon “an assessment of the effects of [the action] on the environment,” but, rather, on the “assessment of the effects of the [action] on the EIS process.” Id.; see also Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660, 667 (9th Cir.1998) (holding that “the less deferential standard of ‘reasonableness’ applies to threshold agency decisions that certain activities are not subject to NEPA’s procedures”).
It is not entirely clear which of these two standards applies to the arguments raised in the present motions. The “reasonableness standard” appears to be reserved for situations in which the agency categorically excludes a particular type of action from NEPA review. See, e.g., San Luis Obispo Mothers for Peace v. Nuclear Regulatory Com’n, 449 F.3d 1016, 1028 (9th Cir.2006) (reviewing an EA concerning construction of a radioactive waste storage site and applying “reasonableness” standard to action agency’s conclusion that the possible risk of a terrorist attack upon the site did not warrant evaluation because the chance of such an attack was too remote). This is supported by Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1070 (9th Cir.2002), which held:
An agency’s threshold decision that certain activities are not subject to NEPA is reviewed for reasonableness. See Northcoast, 136 F.3d at 667. An agency’s decision not to prepare an EIS once that agency has prepared an EA is reviewed for abuse of discretion, and will be set aside only if it is “arbitrary and capricious.” Marsh v. ONRC, 490 U.S. 360, 376-77, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) [additional citation].
The Supreme Court has noted, however, that “the difference between the ‘arbitrary and capricious’ and ‘reasonableness’ standards is not of great pragmatic consequence.” Marsh, 490 U.S. at 377 n. 23, 109 S.Ct. 1851 (1989). Moreover, as the discussion below reveals, there are a limited number of substantive NEPA arguments actually addressed in this Memorandum Decision and Order. The Court believes that the outcome of those arguments would be the same, regardless of the technical standard applied.
Regardless of the scope of discretion, judicial review under the APA is limited to the Administrative Record before the agency at the time the challenged decision was made. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985); Friends of the Clearwater v. Dombeck, 222 F.3d 552, 560 (9th Cir.2000).
V. DISCUSSION
A. Does NEPA Apply?
Federal Defendants advance the threshold argument that NEPA “does not apply” to this case at all. Doc. 76 at 8. It is true that NEPA does not apply retroactively to agency actions that occurred before the effective date of the statute, January 1, 1970. Upper Snake River Chapter of Trout Unlimited v. Hodel, 921 F.2d 232, 234 (9th Cir.1990) (no EIS required on the basis of construction of dam completed in 1956). However, “if an ongoing project undergoes changes which themselves amount to ‘major Federal actions,’ the operating agency must prepare an EIS.” Id. As mentioned above, relying on Upper Snake River and its progeny, the March 8, 2013 Decision concluded that no EIS was required here because Plaintiffs appeared (at least at that time) to have conceded that the proposed action did not change the status quo. Doc. 52, 929 F.Supp.2d at 1055-56.
Now, Federal Defendants appear to be advancing a different proposition: that no requirements of NEPA, not even the requirements regarding the content of an EA, apply to the renewal the interim contracts at issue in this case. This proposition was addressed in the March 8, 2013 Decision:
The [Court’s conclusion that no EIS is required] does not automatically obviate the remainder of Plaintiffs’ claims regarding the content of the EA. Under some, unique circumstances, a finding that no EIS is required would automatically obviate the need for any EA. See Douglas County v. Babbitt, 48 F.3d 1495, 1505 (9th Cir.1995) (given that preparation of an EIS is never required for a designation of critical habitat under the ESA, because Congress intended for ESA critical habitat procedures to replace NEPA requirements, the agency’s failure to prepare an EA did not violate NEPA). However, although preparation of an EA is arguably “optional” under NEPA, Grand Canyon Trust v. U.S. Bureau of Reclamation, 691 F.3d 1008, 1013 (9th Cir.2012) (“An agency undertaking a major federal action may first prepare an [EA] to determine whether an EIS is necessary.”), an agency that chooses to prepare an EA gains the benefit of a more relaxed standard of review of any decision not to prepare an EIS, High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 640 (9th Cir.2004) (“Typically, an agency’s decision not to prepare an EIS is reviewed under the arbitrary and capricious standard; however, where an agency has decided that a project does not require an EIS without first conducting an EA, we review under the reasonableness standard.”).
In addition, NEPA contains separate, specific requirements regarding the content of an EA:
Environmental Assessment:
(a) Means a concise public document for which a Federal agency is responsible that serves to:
(1) Briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.
(2) Aid an agency’s compliance with the Act when no environmental impact statement is necessary.
(3) Facilitate preparation of a statement when one is necessary.
(b) Shall include brief discussions of the need for the proposal, of alternatives as required by section 102(2)(E), of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.
40 C.F.R. § 1508.9. An EA that is followed by a FONSI must provide sufficient information and detail to demonstrate that the agency took the required “hard look” at the environmental consequences of the project before concluding that those impacts were insignificant. Save the Yaak Comm. v. Block, 840 F.2d 714, 717 (9th Cir.1988) (“[A]n agency’s decision not to prepare an EIS will be considered unreasonable if the agency fails to supply a convincing statement of reasons why potential effects are insignificant.”). To be adequate, an EA, like an EIS, must analyze cumulative impacts and respond to public comments concerning the project. Native Ecosystems, 304 F.3d at 893, 896; Found, for North Am. Wild Sheep v. U.S. Dept. of Agr., 681 F.2d 1172, 1178 (9th Cir.1982). Furthermore, the conclusions in the EA must be supported by “some quantified or detailed information,” and the underlying environmental data relied upon to support the expert conclusions must be made available to the public. Klamath-Siskiyou Wildlands v. Bureau of Land Mgmt., 387 F.3d 989, 993, 996 (9th Cir.2004).
These requirements suggest that once an agency elects to prepare an EA, the EA is subject to independent review, even if it has already been determined that no EIS is required. See Natural Res. Def. Council, Inc. v. U.S. Forest Serv., 634 F.Supp.2d 1045, 1059-60 (E.D.Cal.2007) (requiring consideration of alternatives, albeit a more limited number, in an EA, even where EIS is not required); Sabine River Auth. v. U.S. Dept. of Interior, 745 F.Supp. 388, 394 (E.D.Tex.1990), aff'd, 951 F.2d 669 (5th Cir.1992) (independently analyzing challenges to the content of an EA after rejecting challenge to agency’s failure to prepare EIS on the ground that the project did not alter the status quo). Federal Defendants do not point to any authority suggesting otherwise.
Doc. 52, 929 F.Supp.2d at 1056-57. Federal Defendants did not move for reconsideration of this ruling, nor have they presented any authority calling into question the Court’s reasoning.
The Court acknowledges that, at first glance, this ruling appears to leave alive only a purely academic claim challenging the content of an EA, a document designed to help an agency determine whether to prepare an EIS, when it has already been determined that an EIS is not required. But such a challenge is not purely academic, because ensuring that the content of an EA comports with NEPA’s legal requirements advances one of the purposes of NEPA: to “inform those persons and agencies who may be interested [in] or affected” by a federal agency’s actions, 40 C.F.R. § 1506.6. See also Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir.1996) (“NEPA is a procedural statute. Its purpose is to ensure informed agency action.”). As discussed in the March 8, 2013 Decision, the Code of Federal Regulations contains specific provisions governing the content of an EA. See 40 C.F.R. § 1508.9. The APA permits Plaintiffs to challenge Federal Defendants’ compliance with this provision.
The Court also acknowledges that some Ninth Circuit cases contain language that does appear to suggest that NEPA does not apply at all where the proposed action does not change the status quo. For example, in Grand Canyon Trust v. U.S. Bureau of Reclamation, 691 F.3d 1008, 1021-22 (9th Cir.2012), the Ninth Circuit found that Reclamation’s issuance of an Annual Operating Plan (“AOP”) that merely chronicles Reclamation’s ongoing operation of a Dam under pre-existing operating criteria was not a major federal action requiring “compliance with NEPA procedures.” There, the Ninth Circuit specifically agreed that “AOPs are not major federal actions for which NEPA requires that an EA and/or EIS be prepared.” Id. at 1021 (emphasis added). Yet, Grand Canyon did not involve a challenge to the content of an EA voluntarily prepared by an agency. Moreover, the presence of a “major Federal action” is only a pre-requi-site for the preparation of an EIS. By definition, it could not be a pre-requisite to the preparation of an EA, as that document is meant to be “a concise public document ... that serves to,” among other things, “[b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact,” and “aid an agency’s compliance with the Act when no environmental impact statement is necessary.” 40 C.F.R. § 1508.9(a)(l-2).
In sum, the Court’s previous ruling on this issue is the law of the case. Even though it has already been determined that no EIS was required, NEPA still applies to the content of an existing EA, and Plaintiffs may challenge the content that EA here.
There is one caveat to this conclusion. As discussed above, relying on Upper Snake River, the March 8, 2013 Decision concluded that no EIS was required in this case, after finding that Plaintiffs had conceded the Proposed Action would not alter the status quo. Plaintiffs now advance numerous arguments that directly conflict with this conclusion, and with the implied concession Plaintiffs made in their opposition to the motion to dismiss, a concession that was discussed in the March 8, 2013 Decision. See Doc. 52, 929 F.Supp.2d at 1055-56. Among other things, Plaintiffs now argue that while the Proposed Action might not alter the “contractual status quo,” it will alter the “environmental status quo” because of the “deteriorating condition of the Delta” and the “bioaccumulative nature of selenium,” a pollutant associated with the application of irrigation water to agricultural lands in the areas served by the contracts at issue in this case. Doc. 85 at 8. Plaintiffs also contend that Upper Snake River and its progeny do not control here because the contract volumes allocated to the contractors in question have changed since the enactment of NEPA. Doc. 85 at 6. In addition, Plaintiffs make numerous arguments about the content of the impacts analyses in the EA that, if accepted, would conflict with the March 8, 2013 Decision’s conclusion that the Proposed Action would not alter the status quo. See Doc. 68-1 at 18-25. These arguments are not timely presented, see Fed.R.Civ.P. 60, and cannot be considered here. The previous ailing on the EIS claim is also law of this case and is therefore fatal to many of Plaintiffs’ arguments.
B. Waiver.
The March 8, 2013 Decision addressed Federal Defendants argument, joined by Defendant Intervenors, that Plaintiffs waived all of the claims in the FAC because they did not provide any comments to Federal Defendants during the NEPA process. Doc. 52, 929 F.Supp.2d at 1045-47. Federal Defendants’ motion focused on the fact that Federal Defendants received only two comment letters during the NEPA process, neither of which was authored by any of the Plaintiffs in this case. Doc. 45 at 6-8; see also AR 5068-5072 (comment letter from North Coast Rivers Alliance, California Sportfishing Protection Alliance, Friends of the River, and the Winnemem Wintu Tribe); AR 5076-5079 (Letter from the Hoopa Valley Tribe).
The general standard is well established. The APA requires that plaintiffs exhaust administrative remedies before bringing suit in federal court. Great Basin Mine Watch v. Hankins, 456 F.3d 955, 965 (9th Cir.2006). In the NEPA context, this means that a plaintiff “must structure [its] participation so that it ... alerts the agency [of its] positions and contentions, in order to allow the agency to give the issue[s] meaningful consideration.” Id. (quoting Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 764-65, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004)). The purpose of the exhaustion requirement is to avoid premature claims and to ensure the agency is given “a chance to bring its expertise to bear to resolve a claim.” Id. “[A] claimant need not raise an issue using precise legal formulations, as long as enough clarity is provided that the decision maker understands the issue raised.” Lands Council v. McNair, 629 F.3d 1070, 1076 (9th Cir.2010) (internal quotation and citation omitted). Accordingly, “alerting the agency in general terms will be enough if the agency has been given a chance to bring its expertise to bear to resolve the claim.” Id. If a plaintiff fails to meet exhaustion requirements, its claim is waived. See Pub. Citizen, 541 U.S. at 764-65, 124 S.Ct. 2204.
After reviewing a number of district court decisions from within the Ninth Circuit, the March 8, 2013 Decision concluded that “[s]everal district courts, including several within this Circuit and one within this District, have concluded that comments submitted by third parties may form the basis of a NEPA lawsuit, so long as the comments brought sufficient attention to the issue.” Doc. 52, 929 F.Supp.2d at 1045-47 (citing, e.g., Conservation Congress v. U.S. Forest Service, 555 F.Supp.2d 1093, 1106 (E.D.Cal.2008) (rejecting agency argument that plaintiffs failed to raise an issue at the administrative level because “[t]here is no need for a litigant to have personally raised the issue, so long as the issue was raised by another party and the agency had the opportunity to consider the objection”)).
On Summary judgment, Defendant In-tervenors now raise the related, but not identical, argument that Plaintiffs waived certain specific claims because those claims were not raised in either of the comment letters provided to Federal Defendants during the NEPA review process. Doc. 80 at 6 & n. 3. Plaintiffs only response to this new argument is to point out, correctly, that the March 8, 2013 Decision indicated that “[t]he content of the FAC appears to track the letter [submitted by other conservation organizations] almost exactly, and the letter, although it “need not raise an issue using precise legal formulations,” provides “enough clarity [to ensure] the decision maker understands the issue raised.” ” PCFFA v. DOI, 929 F.Supp.2d at 1046 (citing Lands Council, 629 F.3d at 1076). However, this general statement was made in response to the general argument that Plaintiffs’ entire case should be dismissed because no named Plaintiff actually submitted comments during the administrative process. The Court’s statement does not preclude the more specific waiver challenge made by Defendant Intervenors in the present motions for summary judgment. Milgard Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703, 716 (9th Cir.1990) (“Of course, the law of the case doctrine gives no pre-clusive effect to dicta.”).
The question then becomes whether the comment letters in the record “alert[ed] the agency to [Plaintiffs’] position and contentions, in order to allow the agency to give the issue meaningful consideration.” Pub. Citizen, 541 U.S. at 764, 124 S.Ct. 2204 (internal quotation and citation omitted). A plaintiff exhausts its administrative remedies if, “taken as a whole,” the comments in the record “provided sufficient notice to the [agency] to afford it the opportunity to rectify the violations that the plaintiffs alleged,” even if “a much less refined legal argument” was presented during the administrative process, Native Ecosystems Council v. Dombeck, 304 F.3d 886, 898-99 (9th Cir.2002). This approach comports with the purposes of the exhaustion requirement by “avoiding premature claims and ensuring that the agency be given a chance to bring its expertise to bear to resolve a claim.” Id. at 900. “Requiring more might unduly burden those who pursue administrative appeals unrepresented by counsel, who may frame their claims in non-legal terms rather than precise legal formulations.” Id. There is no bright-line standard as to when this requirement has been met; courts must consider exhaustion arguments on a case-by-case basis. Idaho Sporting Congress, Inc. v. Rittenhouse, 305 F.3d 957, 965 (9th Cir.2002).
The Ninth Circuit applied the standard from Dombeck in Great Basin Mine Watch v. Hankins, 456 F.3d 955, 965 (9th Cir.2006), where the Reclamation argued that an environmental plaintiff waived its argument that groundwater discharged from a project would violate federal and state water quality standards. Id. In its comment letter to Reclamation on the project’s draft EIS, environmental plaintiff wrote:
“The [Amended South Project] indicates that groundwater released into Maggie Creek does not need to be treated, since the combined discharged water does not exceed the water quality standards established by the NPDES system.... This statement is different than saying that no impacts will occur. What are the water quality measurements in the Creek and in the discharged water? Are arsenic or TDS amounts increased over what exists naturally in Maggie Creek? Does the total amount of contaminants discharged add a significant amount to the total loads in the Humboldt River downstream?”
Id. The Ninth Circuit found this was sufficient to preserve the claim for judicial review because “Great Basin ■ clearly expressed concern about the current and future levels of toxins in the discharged water, and the Bureau was on notice of these concerns.” Id.
In Nat’l Parks & Conservation Ass’n v. Bureau of Land Mgmt., 606 F.3d 1058 (9th Cir.2010), the Ninth Circuit considered a challenge to a federal agency’s approval of a land exchange agreement. A private developer sought to build a landfill on a former mining site. Id. at 1062. As part of its development plan, the private developer sought to exchange certain private lands for several parcels of surrounding land owned by the Bureau of Land Management (“BLM”). Id. BLM approved the exchange over the objection of conservationists, who eventually argued in court that the BLM failed to consider whether a landfill was the “highest and best use” of the public parcels to be exchanged. Id. at 1065. The private developer and BLM argued that the conservation plaintiff failed to exhaust this issue during the administrative process. Id. The Ninth Circuit closely examined objections submitted by Plaintiff during the administrative process, which stated:
THE BLM WILL NOT RECEIVE FAIR MARKET VALUE FOR THE EXCHANGE. Any disposal of federal lands must be compensated at “fair market value of the use of public lands and their resources.” 48 U.S.C.A. § 1701(a).... Kaiser will also pay BLM a lump sum of $20,100, which is below the fair market value. Kaiser anticipates huge profits from a landfill operation on the undervalued BLM land....
Id. at 1065-66 (emphasis included in Ninth Circuit opinion). Elsewhere in the administrative record, individual plaintiffs argued that “the public should receive fair appraisal for its lands,” and “[n]ot an appraisal that has been artificially reduced in value through instructions to discount developments, improvements, and recent zoning changes.” Id. at 1066. The Ninth Circuit concluded that these statements “adequately raised the highest and best use issue” because they “highlighted the BLM’s failure to appraise the land’s fair market value as a landfill” and because “[t]he highest and best use analysis is an integral part of the appraisal process.” Id. (emphasis in original) (citing 43 C.F.R. § 2201.3-2(a)(l) (“In estimating market value, the appraiser shall: (1) Determine the highest and best use of the property to be appraised[.]”)). This provided “sufficient notice to address the highest and best use issue.” Id.
Here, of the two letters submitted in connection with the contracts at issue in this case, one, drafted by the Hoopa Valley Tribe, does not relate to the claims in this case. AR 5076-79 (addressing funding for Trinity River restoration, flows for the Trinity River basin, Trinity River salmonid habitat, and tribal trust assets in the Trinity River basin). The remaining letter, authored by counsel for the present Plaintiffs on behalf of a coalition of environmental organizations (hereinafter “Coalition Comment Letter”) is five pages in length and maintains, generally, that:
(A) The EA’s No Action Alternative improperly assumes that non-renewal of the existing contracts is infeasible, arguing that the CVPIA “expressly permits reclamation not to renew an interim contract.” Moreover, even if the CVPIA did not give Reclamation discretion not to renew the contracts, NEPA nevertheless requires the No Action Alternative to be non-renewal of the contracts.
(B) The EA fails to consider a reasonable range of alternatives, because the only alternative considered was the No Action Alternative, which was identical to the Proposed Action except for a slight difference in pricing. A proper range of alternatives would have considered interim contract renewals in at amounts less than the current allocation along with nonrenewal of the contracts.
(C) The EA’s entire analysis is fatally skewed by Reclamation’s lack of discretion to consider a non-renewal or altered volume contract alternative. Specifically, this skews the impacts analysis because the EA “invariably concludes that the water deliveries would continue with or without the renewal contracts, and therefore Reclamation’s action has no effect on the environment.” Also, this permits the EA to avoid discussing the impacts of contract renewal on Reclamation’s compliance with other environmental statutes, such as the Migratory Bird Treaty Act, the Fish and Wildlife Coordination Act, the Endangered Species Act, the National Historic Preservation act, and the Clean Water Act, because it permits Reclamation to claim, erroneously, that renewals are mandatory and thus change nothing.
(D) The EA ignores most of the Project’s impacts by limiting the Study Area to the lands receiving the water deliveries, rather than including impacts to the water sources, which are “plainly significant.”
AR 5068-5071.
Defendant Intervenors contend that the Coalition Comment Letter failed to alert Federal Defendants to Plaintiffs’ concerns: (1) that the purpose and need statement of the EA is inadequate; (2) that it was inappropriate for Federal Defendants to rely on (a) certain biological opinions and/or (b) the water needs assessments appended to the EA/FONSI; or (3) that the analysis with respect to impacts on the Giant Garter Snake or California Least Tern is inadequate. Doc. 80 at 7.
1. Purpose and Need Statement.
EAs must “include [a] brief discussion[] of the need for the proposal....” 40 C.F.R. § 1508.9(b). Here, the EA offers the following “Purpose and Need” statement:
As described [elsewhere in the EA], long-term contract renewal for San Luis Unit contractors is still pending. The purpose of the Proposed Action is to execute eight interim contracts in order to extend the term of the contractors’ existing interim renewal contracts for two years, beginning March 1, 2012 and ending February 28, 20U- Execution of these eight interim contracts is needed to continue delivery of CVP water to these contractors, and to further implement CVPIA Section 3404(c), until their new long-term contract can be executed. Interim renewal contracts are needed to provide the mechanism for the continued beneficial use of the water developed and managed by the CVP and for the continued reimbursement to the federal government for costs related to the construction and operation of the CVP by the contractors. Additionally, CVP water is essential to continue agricultural production and municipal viability for these contractors.
AR 5003 (emphasis added). Plaintiffs argue in their summary judgment motion that the EA’s “purpose and need” statement is inadequate because it is based on the agency’s erroneous assumption that “it had no discretion to consider” a broader purpose and range of options. Doc. 68-1 at 9. The Coalition Comment Letter does raise the general concern that the EA is flawed because the agency erroneously assumed that it had no discretion to consider non-renewal of the contracts or renewal at reduced volumes. Although the Coalition Comment Letter focuses on the impact of this failure on the alternatives considered, an agency’s definition of a project’s purpose and need is closely related to and arguably inseparable from whether appropriate alternatives were considered. See Friends of SE’s Future v. Morrison, 153 F.3d 1059, 1066-67 (9th Cir.1998) (discussing interplay between purpose and need and alternatives selection). In light of the Ninth Circuit’s clear pronouncement that so long as the agency has been “provided sufficient notice ... to afford it the opportunity to rectify the violations that the plaintiffs alleged,” an issue will not be deemed waived for failure to exhaust even though commentators “presented a much less refined legal argument” during the administrative process, the Court finds Plaintiffs have sufficiently exhausted the argument that the purpose and need statement is inadequate because it is based on the agency’s erroneous assumption that “it had no discretion to consider” a broader purpose and range of options.
Defendant Intervenors’ motion for summary judgment that Plaintiffs’ challenge to the purpose and need statement has been waived is DENIED.
2. Critiques of Reclamation’s Reliance on Data.
Defendant Intervenors next challenge whether the Coalition Comment Letter sufficiently questioned “any deficiency in the data relied upon, such as biological opinions [issued pursuant to the Endangered Species Act] or the water needs assessments.” Doc. 80 at 7.
With respect to biological opinions, the Court is unable to locate anywhere in the FAC or Plaintiffs’ motion for summary judgment where Plaintiffs assert that any biological opinion cited in the EA is itself deficient. Plaintiffs do assert that it is legally impermissible for the EA to equate “no jeopardy” findings in certain biological opinions with the absence of harm to the species in question. Whether the Coalition Comment Letter provides Federal Defendants with sufficient notice of this issue is discussed below.
Plaintiffs’ motion for summary judgment does specifically contend that the “water needs assessments” relied upon by Reclamation were deficient. This challenge is embedded within Plaintiffs’ broader argument that the EA is flawed in part because Reclamation erroneously assumed it did not have the discretion to reduce contract quantities. Doc. 68-1 at 9-18. In the EA, Reclamation preliminarily considered, but rejected, an alternative that would have reduced contract water quantities, in part because, after performing water needs assessments for all CVP contractors, Reclamation concluded that each “contractor’s water needs equaled or exceeded the current total contract quantity.” AR 5011; see also 5013-14; 5058-61. In their Summary Judgment motion, Plaintiffs maintain that Reclamation’s water needs assessments were flawed because they did not take into consideration the fact that some land within the areas serviced by the contracts had been permanently retired. Doc. 68-1 at 10-12, 14.
Defendant Intervenors argue that Plaintiffs have waived this argument because it is nowhere mentioned in the Coalition Comment Letter. Defendant Intervenors are correct. While the comment letter does raise the general concern that Recia-mation improperly limited the range of alternatives considered in the EA because the improperly assumed it did not have discretion to reduce contract quantities, the letter nowhere mentions water needs assessments, land retirement, or the concept of beneficial use. The letter simply does not put Reclamation on notice that Plaintiffs had any objection to the manner by which Reclamation computed the water needs of the relevant contractors. As broad as the Ninth Circuit’s standard may be, permitting this argument to proceed would totally defeat one of the key purposes of the exhaustion requirement: to ensure the agency is given “a chance to bring its expertise to bear to resolve a claim.” Great Basin, 456 F.3d at 965.
Defendant Intervenors’ motion for summary judgment that Plaintiffs’ challenge to the sufficiency of the water needs assessments has been waived is GRANTED. This conclusion extends to the aspect of Plaintiffs’ challenge to the purpose and need statement that is premised upon deficiencies in the water needs assessments.
3. Analysis of Impacts on Giant Garter Snake or California Least Tern.
Plaintiffs’ motion for summary judgment also argues that the EA’s analysis of the giant garter snake and the California least tern impermissibly equates a finding of no jeopardy under the ESA with a finding of no significant impact under NEPA. The Coalition Comment Letter does generally protest that the EA’s impacts analysis is flawed because it does not address how contract renewal will impact Reclamation’s ability to comply with other laws, including the Migratory Bird Treaty Act and the ESA. AR 5071-72. But, the letter makes no mention of the giant garter snake or the California least tern. Nor does the letter even hint at the specific legal objection raised in these motions: that it is improper to equate a finding of no jeopardy with a finding of no significant impact under NEPA. Plaintiff has not provided the agency with any notice of this argument, which will not be addressed on the merits. Defendant Intervenors’ motion for summary judgment that Plaintiffs have waived their arguments based upon the California least tern and giant garter snake is GRANTED.
C. Remaining Alleged Deñciencies in the EA.
1. Purpose and Need Statement.
As mentioned above, an EA “[s]hall include [a] brief discussion[ ]s of the need for the proposal....” 40 C.F.R. § 1508.9(b). In applying the related requirement that a full EIS shall “briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action,” 40 C.F.R. § 1502.13, the Ninth Circuit has afforded agencies “considerable discretion” in defining the purpose and need of a project. Friends, 153 F.3d at 1066 (citing City of Angoon v. Hodel, 803 F.2d 1016 (9th Cir.1986)). In City of Angoon, for example, the Ninth Circuit examined the adequacy of an EIS prepared in conjunction with the issuance of a permit for construction and operation of a logging facility. See 803 F.2d at 1017. The district court had held that the EIS was inadequate under NEPA because it failed to consider an alternative under which the land on the island could be exchanged for land elsewhere. See id. In reaching this conclusion, the district court rejected the agency’s statement of the permit’s purpose. The Ninth Circuit reversed, explaining:
The district court attacked the Corps’ statement of the permit’s purpose. Purporting to rely on the Corps’ regulations, the district court restated the purpose in terms of a broad, generic public benefit: “commercial timber harvesting.” ... The Corps characterized the relevant “purpose and need” as providing a “safe, cost effective means of transferring timber.... ” The district court erred when it adopted as the “purpose and need” the even broader concept “commercial timber harvesting.” This formulation appears to make a broad social interest the exclusive “purpose and need.” The Corps’ statement is more balanced. We have said before, “The preparation of [an EIS] necessarily calls for judgment, and that judgment is the agency’s.” Acceptance of the Corps’ statement of purpose makes consideration of the exchange alternative irrelevant. When the purpose is to accomplish one thing, it makes no sense to consider the alternative ways by which another thing might be achieved.
Id. at 1021 (internal citations omitted).
Nevertheless, the discretion afforded the agency is not unlimited. “[A]n agency cannot define its objectives in unreasonably narrow terms.” Friends, 153 F.3d at 1066 (citing City of Carmel-By-The-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1155 (9th Cir.1997)); see also City of New York v. United States Dep’t of Transp., 715 F.2d 732, 743 (2d Cir.1983) (“[A]n agency will not be permitted to narrow the objective of its action artificial ly and thereby circumvent the requirement that relevant alternatives be considered.”). According to the Ninth Circuit’s own reading of this line of cases: “The combined teaching of City of Angoon and City of Carmelr-By-The-Sea is that the [agency’s] statement of purposes is to be evaluated under a reasonableness standard.” Friends, 153 F.3d at 1066-67. An EA’s purpose and need statement may be fatally flawed if it is based on the agency’s erroneous assumption that “it had no discretion to consider” a different purpose. NHTSA, 538 F.3d at 1219.
Here, the stated purpose of the Propose Action “is to execute eight interim contracts in order to extend the term of the contractors’ existing interim renewal contracts for two years, beginning March 1, 2012 and ending February 28, 2014.” AR 5003. Plaintiffs maintain that Reclamation interpreted this language to mean that the purpose of the Proposed Action is to extend the contracts at existing quantities, because, according to Plaintiffs, Reclamation erroneously believes that it lacks authority to reduce contract quantities. Doc. 68-1 at 9. Plaintiffs’ contention on this point is belied by the EA itself, which clearly considers an alternative that would reduce contract water quantities. The EA provides four reasons for rejecting this alternative, which are discussed below, none of which are based upon any inconsistency with the purpose of the Proposed Action. Nothing in the record suggests that Reclamation considered the purpose of the action to be anything other than as stated: to renew the contracts. Reclamation’s decision to reject a reduced quantity alternative must stand or fall based upon the reasons the agency actually gave. Plaintiffs’ motion for summary judgment that the purpose and need statement was unlawful is DENIED; Federal Defendants’ and Defendant Intervenors’ Cross Motions are GRANTED.
2. Range of Alternatives Considered. a. Rejection of the Reduced Quantity Alternative.
NEPA requires the agencies to “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.” 42 U.S.C. § 4332(2)(E). This “alternatives provision” applies whether an agency is preparing an EIS or an EA, and requires the agency to give full and meaningful consideration to all reasonable alternatives. Native Ecosystems, 428 F.3d at 1245. “Although an agency must still ‘give full and meaningful consideration to all reasonable alternatives’ in an environmental assessment, the agency’s obligation to discuss alternatives is less than in an EIS.” Western Watersheds Project v. Abbey, 719 F.3d 1035, 1050 (9th Cir.2013) (internal citations and quotations omitted). “The existence of a viable but unexamined alternative renders an [EA] inadequate.” Id.
Here, the EA considered four alternatives:
(1) The No Action Alternative, defined as “the continued delivery of CVP water under the interim renewal of existing contracts .... ” in the form that those contracts took when they were considered as part of the Preferred Alternative of the CVPIA PEIS “adapted to apply for an interim period.” AR 5009. This means that the contract terms, including the quantity/volume term, would remain the same as in the previous contracts. See id.
(2) The Proposed Action, defined as the execution of the eight interim renewal water contracts “with only minor, administrative changes to the contract provisions to update the previous interim renewal contracts for the new contract period.” Id.
(3) Non-Renewal of Contracts. AR 5010-11.
(4) Reduction in Interim Renewal Contract Water Quantities (hereinafter, the “Reduced Quantity Alternative”). AR 5011.
The Non-Renewal and Reduced Quantity Alternatives were “considered but eliminated from further analysis.” AR 5010-11.
NEPA and its implementing regulations require the following with respect to the alternatives that must be considered by an agency:
1) the agency must consider “appropriate” alternatives to recommended courses of action, 42 U.S.C. § 4332(2)(E);
2) an EIS must “[r]igorously explore and objectively evaluate all reasonable alternatives” and must explain why it has eliminated an alternative from detailed study, 40 C.F.R. § 1502.14(a) (2000) (emphasis added);
3) the agency must consider a “no action” alternative, id. § 1502.14(d); and
4) the agency must designate a “preferred” alternative, id. § 1502.14(e).
Native Ecosystems, 428 F.3d at 1245-46. “The statutory and regulatory requirements that an agency must consider ‘appropriate’ and ‘reasonable’ alternatives does not dictate the minimum number of alternatives that an agency must consider.” Id. An alternative may be rejected so long as the agency provided an “appropriate explanation” as to why the alternative was eliminated. Id. Plaintiffs’ claims concerning the Non-Renewal Alternative were dismissed by the March 8, 2013 Decision. Doc. 52, 929 F.Supp.2d at 1048-55. Plaintiffs now move for summary judgment that the EA unlawfully rejected the Reduced Quantity Alternative. Federal Defendants and Defendant Intervenors cross move for summary judgment that Reclamation lawfully decided to reject the Reduced Quantity Alternative.
Reclamation offered four reasons why it rejected the Reduced Quantity Alternative:
First, the Reclamation Project Act of 1956 and the Reclamation Project Act of 1963 mandate renewal of existing contract quantities when beneficially used. Irrigation and M & I uses are beneficial uses recognized under federal Reclamation and California law. Reclamation has determined that the contractors have complied with contract terms and the requirements of applicable law. It also has performed water needs assessments for all the CVP contractors to identify the amount of water that could be beneficially used by each water service contractor. In the case of each intei'im renewal contractor, the contractor’s water needs equaled or exceeded the current total contract quantity.
Second, the analysis of the PEIS resulted in selection of a Preferred Alternative that required contract renewal for the full contract quantities and took into account the balancing requirements of CVPIA (p. 25, PEIS ROD). The PEIS ROD acknowledged that contract quantities would remain the same while deliveries are expected to be reduced in order to implement the fish, wildlife, and habitat restoration goals of the Act, until actions under CVPIA 3408(j) to restore CVP yield are implemented (PEIS ROD, pages 26 — 27). Therefore, an alternative reducing contract quantities would not be consistent with the PEIS ROD and the balancing requirements of CVPIA.
Third, the shortage provision of the water service contract provides Reclamation with a mechanism for annual adjustments in contract supplies. The provision protects Reclamation from liability from the shortages in water allocations that exist due to drought, other physical constraints, and actions taken to meet legal or regulatory requirements. Reclamation has relied on the shortage provisions to reduce contract allocations to interim renewal contractors in most years in order to comply with Section 3406(b)(2) of the CVPIA. Further, CVP operations and contract implementation, including determination of water available for delivery, is subject to the requirements of Biological Opinions issued under the Federal ESA for those purposes. If contractual shortages result because of such requirements, the Contracting Officer has imposed them without liability under the contracts. Fourth, retaining the full historic water quantities under contract provides the contractors with assurance the water would be made available in wetter years and is necessary to support investments for local storage, water conservation improvements and capital repairs.
Therefore, an alternative reducing contract quantities would not be consistent with Reclamation law or the PEIS ROD, would be unnecessary to achieve the balancing requirements of CVPIA or to implement actions or measure that benefit fish and wildlife, and could impede efficient water use planning in those years when full contract quantities can be delivered.
AR 5011. Plaintiffs attack each rationale in turn.
(1) Reclamation Law Mandates Renewal at Existing Quantities When Beneficially Used.
The first reason Reclamation offered for rejecting the Reduced Quantity Alternative was that federal Reclamation Law mandates renewal of the contracts at existing quantities when previously contracted-for quantities can be beneficially used. Reclamation reviewed water needs assessments for all of the relevant contractors and concluded that the contractors’ water needs equaled or exceeded the current total contract quantity.
Plaintiffs attack this rationale in several ways. First, Plaintiffs maintain that Reclamation’s water needs assessments were flawed because Reclamation failed to take into consideration the fact that substantial acreage had been retired within at least some of the areas served by the contracts at issue in this case. As discussed above, Plaintiffs failed to exhaust their administrative remedies as to this issue, which is not mentioned or hinted at in the Coalition Comment Letter. It will not be considered here.
Next, Plaintiffs argue that even if one assumes Reclamation law requires renewal of the contracts at existing volumes, it is unlawful for an agency to refuse to consider alternatives beyond that agency’s authority. Doc. 68-1 at 14-15. In support of this proposition, Plaintiffs cite 40 C.F.R. § 1502.14(c), which provides that an EIS must “include reasonable alternatives not within the jurisdiction of the lead agency.” Plaintiffs also cite Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 235 F.Supp.2d 1143 (W.D.Wash.2002) (“NWF v. NMFS ”), which concerned an EIS prepared for a project to dredge sediment from river channels. There, applying 40 C.F.R. § 1502.14(c), the district court found unlawful the action agency’s decision to reject an alternative that would have controlled the production of sediment upstream because the acting agency claimed it did not have authority to regulate land use within the vast majority of the basin: An agency’s refusal to consider an alternative that would require some action beyond that of its congressional authorization is counter to NEPA’s intent to provide options for both agencies and Congre