Natural Res. Def. Council v. Zinke (347 F. Supp. 3d 465, 2018)

United States District Court for the Eastern District of California 2018-09-28

Conservation Crimes and Criminal Procedure Navigation and Navigable Waters Government Organization and Employees

Citations

Full opinion text

Lawrence J. O'Neill, UNITED STATES CHIEF DISTRICT JUDGE

I. INTRODUCTION

On March 12, 2018, Plaintiffs, a coalition of environmental interest groups led by the Natural Resources Defense Council ("NRDC"), filed the currently operative Sixth Supplemental Complaint ("6SC"), which includes numerous claims brought under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. , and the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq. , against the U.S. Bureau of Reclamation ("Bureau" or "Reclamation"), the U.S. Fish and Wildlife Service ("FWS" or "Service"), and various Joined Defendants and Defendant Intervenors. See generally ECF No. 1187. The remaining claims in the case allege that the renewal, implementation, and approval of renewal and implementation of certain long-term water contracts violate the ESA and/or APA. Id.

Before the Court for decision are cross-motions for summary judgment on the second, fourth, and sixth claims for relief in the 6SC. The fourth claim for relief alleges a 2015 Letter of Concurrence ("2015 LOC") authored by FWS was the culmination of an inadequate ESA consultation regarding the effects of certain long-term contract renewals on delta smelt. 6SC at ¶¶ 189-194. The second claim for relief alleges that Reclamation acted unlawfully by accepting the 2015 LOC and implementing the long-term water supply contracts in reliance on the 2015 LOC. Id. at ¶¶ 176-182. The sixth claim for relief alleges that some holders of a certain type of long-term water contract, known as Sacramento River Settlement Contracts ("SRS Contracts" or "SRS Contractors" when referring to the holders), and Reclamation violated the ESA's prohibition against taking listed species because they caused substantial temperature-dependent mortality of Sacramento River winter-run Chinook salmon ("winter-run") and Central Valley spring-run Chinook salmon ("spring-run") eggs and fry in the Upper Sacramento River in 2014 and 2015. Id. at ¶¶ 201-205.

The motions concerning the second and fourth claims are limited to the administrative record ("AR"), while review of the sixth claim is not. Because the sixth claim is set for a bench trial beginning March 5, 2019, see ECF No. 1194, in the interest of expedience, the Court addresses the motions that pertain to the sixth claim in this Memorandum Decision and Order, leaving the remaining matters for separate resolution.

II. PROCEDURAL HISTORY

The Court has reviewed the factual and procedural history of this case in painstaking detail in prior orders. See Nat. Res. Def. Council v. Norton , 236 F.Supp.3d 1198, 1203-10 (E.D. Cal. 2017) (" NRDC v. Norton ") (ECF No. 1069 at 5-15). That review is incorporated herein by reference. Upon resolution of the most recent round of motions to dismiss, only certain aspects of the sixth claim for relief remain. First, as mentioned, Plaintiffs allege that the named SRS Contractor Defendants caused substantial temperature-dependent mortality of winter-run and spring-run Chinook salmon by diverting and transferring water pursuant to the terms of the SRS Contracts in 2014 and 2015, without an appropriate permit under the ESA. See 6SC ¶ 204. Only two narrow aspects of the Section 9 claim remain pending against Reclamation: that Reclamation unlawfully "took" ESA-listed salmonids by (1) approving water transfers SRS Contractors to others in 2014 and 2015; and (2) by failing to require one SRS Contractor, the Glenn Colusa Irrigation District ("GCID"), to divert a certain volume of water from Stony Creek, rather than directly from the Sacramento River, during those same years. See NRDC v. Norton , 236 F.Supp.3d at 1240.

III. LEGAL STANDARDS

A. General Summary Judgment Standard

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). At summary judgment, a court's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations. See id. at 255, 106 S.Ct. 2505 ; see also Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. Anderson , 477 U.S. at 249-50, 106 S.Ct. 2505. A fact is "material" if its proof or disproof is essential to an element of a plaintiff's case. Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "[T]the substantive law will identify which facts are material." Anderson , 477 U.S. at 248, 106 S.Ct. 2505. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. A factual dispute is "genuine" "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. 2505. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal citation omitted).

The moving party bears the initial burden of informing the Court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact for trial. Celotex , 477 U.S. at 323, 106 S.Ct. 2548. Put another way:

A moving party without the ultimate burden of persuasion at trial-usually, but not always, a defendant-has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. See 10A Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure § 2727 (3d ed.1998). In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. See High Tech Gays v. Defense Indus. Sec. Clearance Office , 895 F.2d 563, 574 (9th Cir. 1990). In order to carry its ultimate burden of persuasion on the motion, the moving party must persuade the court that there is no genuine issue of material fact. See id.

Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc. , 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, set forth specific facts showing that there is some genuine issue for trial in order to defeat the motion. See Fed. R. Civ. P. 56(c) ; Anderson , 477 U.S. at 250, 106 S.Ct. 2505. "If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial." Nissan Fire , 210 F.3d at 1102-1103 ; see Adickes v. S.H. Kress & Co. , 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

B. General ESA Framework

"Under the ESA, the Secretary of the Interior and the Secretary of Commerce are charged with identifying threatened and endangered species and designating critical habitats for those species." Nat. Res. Def. Council v. Jewell , 749 F.3d 776, 779 (9th Cir. 2014) (" NRDC v. Jewell ") (citing 16 U.S.C. § 1533 ). FWS and the National Marine Fisheries Service ("NMFS") administer the ESA on behalf of the Departments of the Interior and Commerce, respectively . See 50 C.F.R. §§ 17.11, 222.101(a), 223.102, 402.01(b). The district court in Environmental Protection Information Center, Inc. v. Pacific Lumber Co ., summarized succinctly the relationship between the sections of the ESA pertinent to the present motion:

Section 9 of the ESA makes it unlawful for any person to "take," i.e. , to harm, kill or harass, any listed endangered species of fish or wildlife within the United States unless an incidental take permit ("ITP") or other exemption is obtained pursuant to section 10 of the ESA. 16 U.S.C. § 1538. In order to qualify for an ITP, a permit applicant must submit a habitat conservation plan that includes, among other things, the steps an applicant will take to minimize and mitigate impacts on endangered species and alternative actions being considered. 16 U.S.C. § 1539(a)(2)(A).

Section 7(a)(2) imposes a procedural duty on the federal agencies to consult with the FWS or NMFS, depending on the protected species, to "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification" of critical habitats of listed species. 16 U.S.C. § 1536(a)(2). An agency "action" is defined to mean all activities carried out by federal agencies, including, among other things, the granting of licenses and permits. See 50 C.F.R. § 402.02. "If a contemplated agency action may affect a listed species, then the agency must consult with the Secretary of the Interior, either formally or informally." American Rivers [v. NMFS] , 126 F.3d [1118,] 1122 [ (9th Cir. 1997) ].

67 F.Supp.2d 1113, 1117-18 (N.D. Cal. 1999), vacated in part on other grounds , 257 F.3d 1071 (9th Cir. 2001).

Formal consultation results in the issuance of a "biological opinion" ("BiOp") by the relevant wildlife agency (FWS or NMFS). See 16 U.S.C. § 1536(b). If the BiOp concludes that the proposed action would jeopardize the species or destroy or adversely modify critical habitat, see id. § 1536(a)(2), then the action may not go forward unless the wildlife agency can suggest a "reasonable and prudent alternative[ ]" ("RPA") that avoids jeopardy, destruction, or adverse modification. Id. § 1536(b)(3)(A). If a BiOp concludes that the proposed action (or the action implemented in conjunction with actions described in the RPA) will cause incidental taking of protected species, but that despite this taking, the action will not jeopardize the species or threaten critical habitat, the wildlife agency

shall provide the Federal agency and the applicant concerned, if any with a written statement that-

(i) specifies the impact of such incidental taking on the species,

(ii) specifies those reasonable and prudent measures that the Secretary considers necessary or appropriate to minimize such impact,

(iii) ..., and

(iv) sets forth the terms and conditions (including, but not limited to, reporting requirements) that must be complied with by the Federal agency or applicant (if any), or both, to implement the measures specified under clauses (ii) and (iii).

Id. § 1536(b)(4). This written statement, with its "reasonable and prudent measures" ("RPM") and associated terms and conditions, is referred to as an "Incidental Take Statement" ("ITS"), which, if followed, exempts the action agency from the prohibition on takings found in Section 9. Id. § 1536(o ); Aluminum Co. of Am. v. Adm'r, Bonneville Power Admin. , 175 F.3d 1156, 1159 (9th Cir. 1999).

A related provision contained within ESA Section 10 governs incidental take by private parties and authorizes FWS and NMFS to issue an "Incidental Take Permit"

("ITP") "under such terms and conditions as [the service] may prescribe." 16 U.S.C. § 1539(a)(1). As with an ITS, an ITP may excuse take that "is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." Id. § 1539(a)(1)(B). An applicant for an ITP must submit a habitat conservation plan demonstrating that the take "will not appreciably reduce the likelihood of the survival and recovery [of the species] in the wild." Id. § 1539(a)(2)(B)(iv).

IV. FACTUAL BACKGROUND RELEVANT TO THE SIXTH CLAIM

The sixth claim for relief concerns water diversions made pursuant to SRS Contracts held by 28 of the more than 140 SRS Contractors. Plaintiffs' Statement of Undisputed Facts ("PSUF"), ECF Nos. 1210-2 & 1224, # 48; Federal Defendants' Response to PSUF ("FDR"), ECF No. 1210-2, # 48; SRS Contractors' Response to PSUF ("SRSR"), ECF No. 1224, # 48. Understanding the relationship between the SRS Contractors and the United States requires some historical context the Court draws from an earlier decision in this case for background purposes only:

Prior to the construction of the [Central Valley Project ("CVP") ], the SRS Contractors (or their predecessors-in-interest) were lawfully diverting water from the Sacramento River. They divert water at their own diversion facilities located upstream from the Delta. The SRS Contractors claim the right to divert a significant portion of the water ... available for appropriation in the Sacramento River, particularly during the irrigation season (April through October).

The SRS Contractors became concerned that the construction of the CVP's Shasta Division would interfere with their pre-existing water rights and uses. Resolution of the dispute involved 20 years of negotiations, protracted technical studies, State of California and Congressional hearings, and intervention by representatives of the Secretary of the Interior.

Under Reclamation law, the Bureau had to obtain water rights permits from the State of California in order to operate the CVP. In Decision 990, the State Water Rights Board (the "Board"-a predecessor to the State Water Resources Control Board ("SWRCB") ) granted the Bureau permits to appropriate water from the Sacramento River, but directed the United States to reach a settlement agreement with the Sacramento River water users who held "existing rights" in the Sacramento River:

Throughout these proceedings, the Bureau's representatives have consistently affirmed their policy to recognize and protect all water rights on the Sacramento River and the Delta existing under State law at the times these applications were filed, including riparian, appropriative and others.... It is imperative, therefore, that the holders of existing rights and the United States reach agreement concerning those rights and the supplemental water required to provide the holders with a firm and adequate water supply, if a lengthy and extremely costly adjudication of the waters of the Sacramento River and its tributaries is to be avoided.

Decision 990, at 75 (emphasis added) ....

Congress also urged the Bureau to reach an agreement with the SRS Contractors. In 1951, the House Interior and Insular Affairs Committee issued a report recognizing the growing possibility of conflict between existing Sacramento River water users and the nascent CVP, urging the Bureau to avoid litigation. See Engle, CVP Documents, Part I, S. Res. 1, 84th Cong. (2d Sess.), H.R. Res. 416 at 675-783 (1956) ....

... Congress expressed its concern about the possibility that the CVP could become involved in "[a] monstrous lawsuit ... that would embroil the [CVP] in litigation for decades." Id. On the one hand, the Report acknowledges that the Bureau promised "that no water which is needed in the Sacramento Valley will be sent out of it," (id. at 678), and that "instead of firm water rights necessary for the operation of the [CVP] the Bureau ... had in effect merely 'four pieces of paper' which the State of California ... in effect said the Bureau should 'take to court' to find out if it has any water rights," (Id. at 682) ....

Operating under these generic commands from Congress and the Board, the United States reached agreement with Settlement Contractors and executed the first SRS Contract in 1964. The SRS Contracts define the manner in which the parties agreed to administer their respective legal entitlements to Sacramento River water, to avoid conflict while preserving the rights of either party in any subsequent water right litigation.

Under the Settlement Contracts, the SRS Contractors continue to divert directly from the Sacramento River and its tributaries, with their own facilities, as they have historically done. However, the SRS Contracts ceded the Bureau some authority over the timing of the SRS Contractors' diversions. In exchange for the SRS Contractors giving up some of their flexibility in the timing of their diversions, the Bureau agreed to make stored water available to the Settlement Contractors during the lower flow (summer) months.

It is undisputed that, historically, the execution of the SRS Contracts facilitated the Bureau's ability to operate the CVP, by providing the CVP with certainty as to the availability of water needed to schedule Project releases and deliveries throughout each water year.

Nat. Res. Def. Council v. Kempthorne , No. 1:05-CV-01207 OWW TAG, 2008 WL 5054115, at *24-27 (E.D. Cal. Nov. 19, 2008) (internal record citations omitted), superseded in part and clarified on other grounds in numerous orders .

In 2005, Reclamation renewed more than 140 SRS Contracts for a period of 40 years each. FDR # 48. The evidence in the present case confirms that all of the SRS Contracts in combination, including those held by SRS Contractors not party to this case, provide for diversion of up to approximately 2.1 million acre feet (a single acre-foot is referenced as "AF"; a million acre feet is referenced as "MAF") of water each year from the Sacramento River. PSUF # 50. The SRS Contracts held by defendants account for more than 94 percent of that total. SRSR # 55. Of note for this case, the SRS Contracts provide in Article 5 that in a "Critical Year," the Contract Total shall be reduced by 25 percent. SRSR # 52.

In a very general sense, the SRS Contracts require Reclamation to furnish water to each SRS Contractor in accordance with a written monthly schedule submitted by the SRS Contractor. PSUF # 51. Reclamation stores water behind Shasta Dam from where it may be released into Keswick Reservoir, which sits downriver of Shasta Dam. See Declaration of Lee Bergfeld ("Bergfeld Decl."), ECF No. 1211 at ¶ 5; see also BOR 7777 (map of upper Sacramento River facilities). When an SRS Contractor schedules a diversion of water, Reclamation makes releases from Keswick Dam to ensure sufficient water is flowing down the Sacramento River to permit the scheduled diversions. See Bergfeld Decl. ¶ 5. This process requires Reclamation to take into consideration a wide range of factors, including other legal and contractual obligations pertaining to water operations. Id. It is also possible that the volume of water diverted under an SRS Contract may include water that was not released from Keswick Reservoir but was instead available from a downstream tributary source. Id. at 8.

Both species of concern to Plaintiffs, the winter-run and spring run Chinook, presently are listed under the ESA. PSUF ## 94, 104. NMFS also has designated critical habitat for both species. Winter-run critical habitat includes the portion of the Sacramento River from Red Bluff Diversion Dam to Keswick Dam. PSUF # 95. Winter run spawn between mid-April and mid-August and fry emerge from their eggs from late June through October. BOR 7675; SRSR # 102. Spring-run critical habitat includes portions of the upper Sacramento River. PSUF # 105. Spring-run spawn in September and October. BOR 7689.

In 2009, NMFS issued a Biological Opinion ("BiOp") under the ESA evaluating the impact of CVP/SWP operations on various species under NMFS jurisdiction, including the winter-run and spring-run ("2009 NMFS OCAP BiOp" or "NMFS BiOp"). PSUF # 109. The NMFS BiOp indicates that winter-run salmon spawn and rear in the reaches of the Sacramento River below Keswick Dam, BOR 7675, and that a population of spring-run Chinook salmon also spawns and rears in the mainstem Sacramento River below Keswick, with other spring-run populations spawning and rearing in tributaries of the Sacramento River and other watercourses. BOR 7695. The NMFS BiOp provides additional, helpful background information:

Alterations to the natural hydrologic systems of the Sacramento and San Joaquin River basins began in the late 1800s, accelerating in the early 1900s, including the construction of three dams owned and operated by Reclamation, a fourth dam owned and operated by the California Department of Water Resources (DWR), and a multitude of pumps and hundreds of miles of gravity-fed water diversions constructed and operated by private water users and by Reclamation and DWR. None of the major dams were constructed with fish ladders to pass anadromous fish and, as a result, salmon and steelhead have effectively been blocked from accessing the upper reaches of the basin. Beginning in 1993, Shasta and Keswick Dam releases on the upper Sacramento River have been managed to provide cold water to the spawning habitat below Keswick Dam as per requirements of NMFS' winter-run biological opinion on the operations of the CVP and SWP.

BOR 7626.

The NMFS BiOp further indicates that winter-run and spring-run are dependent, at least in part, upon sufficiently cold temperatures during certain periods of the year to ensure successful egg incubation and development. BOR 8185, 8279. In light of these and other findings, the NMFS BiOp concludes that, unless modified, the long-term operation of the CVP/SWP is likely to jeopardize the continued existence and adversely modify critical habitat for winter-run and spring-run. BOR 8170. However, NMFS set forth an RPA which NMFS "believes would enable the project to go forward in compliance with the ESA." Id. In introducing the RPA, which is wide-ranging and impacts many aspects of CVP/SWP operations, including in ways not directly relevant to this ruling, NMFS indicates:

Water operations result in elevated water temperatures that have lethal and sub-lethal effects on egg incubation and juvenile rearing in the upper Sacramento River. The immediate operational cause is lack of sufficient cold water in storage to allow for cold water releases to reduce downstream temperatures at critical times and meet other project demands. This elevated temperature effect is particularly pronounced in the Upper Sacramento for winter-run and mainstem spring-run .... The RPA includes a new year-round storage and temperature management program for Shasta Reservoir and the Upper Sacramento River, as well as long-term passage prescriptions at Shasta Dam and re-introduction of winter-run into its native habitat in the McCloud and/or Upper Sacramento rivers.

BOR 8171-72. The RPA describes an entire suite of actions addressing "Shasta Operations" in Action Suite I.2, the introduction of which helps set the stage for the dispute in this case:

Maintaining suitable temperatures for egg incubation, fry emergence, and juvenile rearing in the Sacramento River is critically important for survival and recovery of the winter-run ESU. The winter-run ESU has been reduced to a single population, which has been blocked from its historical range above Shasta Dam. Consequently, suitable temperatures and habitat for this population must be maintained downstream of Shasta Dam through management of the cold water pool behind the dam in the summer. Maintaining optimum conditions for this species below Shasta is crucial until additional populations are established in other habitats or this population is restored to its historical range. Spring-run are also affected by temperature management actions from Shasta Reservoir.

The effects analysis in this Opinion highlights the very challenging nature of maintaining an adequate cold water pool in critically dry years, extended dry periods, and under future conditions, which will be affected by increased downstream water demands and climate change. This suite of actions is designed to ensure that Reclamation uses maximum discretion to reduce adverse impacts of the projects to winter-run and spring-run in the Sacramento River by maintaining sufficient carryover storage and optimizing use of the cold water pool. In most years, reservoir releases through the use of the [temperature control device] are a necessity in order to maintain the bare minimum population levels necessary for survival (Yates et al. 2008, Angilletta et al. 2008).

The effects analysis in this Opinion, and supplemental information provided by Reclamation, make it clear that despite Reclamation's best efforts, severe temperature-related effects cannot be avoided in some years. The RPA includes exception procedures to deal with this reality. Due to these unavoidable adverse effects, the RPA also specifies other actions that Reclamation must take, within its existing authority and discretion, to compensate for these periods of unavoidably high temperatures. These actions include restoration of habitat at Battle Creek that may be support a second population of winter-run, and a fish passage program at Keswick and Shasta dams to partially restore winter-run to their historical cold water habitat.

BOR 8185-86. The RPA sets as one of the primary goals of Action Suite I.2 ensuring "a sufficient cold water pool to provide suitable temperatures for winter-run spawning between Balls Ferry and Bend Bridge in most years, without sacrificing the potential for cold water management in a subsequent year," while acknowledging that other actions are needed to compensate for "increased vulnerability of the population to temperature effects" attributable to various factors. BOR 8186.

Important to this case is Action 1.2.4's call for Reclamation to develop and implement an annual "Temperature Management Plan," to "manage the cold water supply within Shasta Reservoir and to make cold water releases from Shasta Reservoir and Spring Creek to provide "suitable temperatures for listed species ...." BOR 8196. Specifically, this Action requires Reclamation to manage operations to achieve daily average water temperatures in the Sacramento River at specific "compliance locations" between Balls Ferry (25 river miles downstream of Keswick) and Bend Bridge (44 river miles downstream of Keswick)

[n]ot in excess of 56°F at compliance locations between Balls Ferry and Bend Bridge from May 15 through September 30 for protection of winter-run, and not in excess of 56°F at the same compliance locations between Balls Ferry and Bend Bridge from October 1 through October 31 for protection of mainstem spring run, whenever possible.

Id. ; see also Declaration of Kate Poole ("Poole Decl."), Ex. 21 (ECF No. 1176-22) (showing temperature compliance points in terms of river miles from Keswick). Another temperature compliance point ("TCP") is identified at Clear Creek, located 10 river miles downstream of Keswick, upstream of Balls Ferry. BOR 8195; Poole Decl., Ex. 21.

The NMFS BiOp also sets forth targets for end-of-September ("EOS") storage in Shasta Reservoir. An earlier BiOp required Reclamation to maintain a minimum storage level of 1.9 MAF behind Shasta Dam "to protect the cold water pool in Shasta Reservoir, in case the following year was critically dry (drought year insurance). This was because a relationship exists between EOS storage and the cold water pool. The greater the EOS storage level, typically the greater the cold water pool." BOR 7676. Since 1997, Reclamation has been able to control water temperatures in the upper Sacramento River through use of at Temperature Control Device ("TCD") that was installed in Shasta Dam. Id. Thereafter, NMFS changed the 1.9 MAF storage "requirement" to a "target." Id. Modeling revealed that higher EOS targets improved the probability of meeting the temperature targets at the Balls Ferry TCP. BOR 7845. NMFS has indicated more recently that "the volume of cold water available for real-time management in June through October is highly dependent on Keswick releases in April through early June." BOR 12569.

The NMFS BiOp sets forth of "performance measures" related to TCPs and EOS Storage in Action 1.2.1, which the Court sets forth in their entirety due to their importance to the present disputes:

Action 1.2.1 Performance Measures.

Objective: To establish and operate to a set of performance measures for temperature compliance points and End-of-September (EOS) carryover storage, enabling Reclamation and NMFS to assess the effectiveness of this suite of actions over time. Performance measures will help to ensure that the beneficial variability of the system from changes in hydrology will be measured and maintained.

Action: The following long-term performance measures shall be attained. Reclamation shall track performance and report to NMFS at least every 5 years. If there is significant deviation from these performance measures over a 10-year period, measured as a running average, which is not explained by hydrological cycle factors (e.g., extended drought), then Reclamation shall reinitiate consultation with NMFS.

Performance measures for EOS carryover storage at Shasta Reservoir:

• 87 percent of years: Minimum EOS storage of 2.2 MAF

• 82 percent of years: Minimum EOS storage of 2.2 MAF and end-of-April storage of 3.8 MAF in following year (to maintain potential to meet Balls Ferry compliance point)

• 40 percent of years: Minimum EOS storage 3.2 MAF (to maintain potential to meet Jelly's Ferry compliance point in following year)

Measured as a 10-year running average, performance measures for temperature compliance points during summer season shall be:

• Meet Clear Creek Compliance point 95 percent of time • Meet Balls Ferry Compliance point 85 percent of time

• Meet Jelly's Ferry Compliance point 40 percent of time

• Meet Bend Bridge Compliance point 15 percent of time

Rationale: Evaluating long-term operations against a set of performance measures is the only way to determine the effectiveness of operations in preserving key aspects of life history and run time diversity. For example, maintaining suitable spawning temperatures down to Bend Bridge in years when this is feasible will help to preserve the part of winter-run distribution and run timing that relies on this habitat and spawning strategy. This will help to ensure that diversity is preserved when feasible ....

BOR 8187.

The BiOp also prescribes various actions Reclamation must undertake under various EOS storage scenarios. Under all scenarios, NMFS is to develop Keswick release schedules and submit them to NMFS early in the water year. See BOR 8188-8191. In addition, for example, if EOS storage is at 1.9 MAF or below, indicative of periods of drought, the NMFS BiOp requires certain actions designed to preserve the cold water pool in Shasta Reservoir "to the maximum extent possible, in order to increase the probability of maintaining cold water supplies necessary for egg incubation for the following summer's cohort of winter-run." BOR 8191. The NMFS BiOp provides for "Drought Exception Procedures" if maintaining temperature compliance at Clear Creek is not possible and/or if 1.9 MAF EOS storage is not achievable. BOR 8195. These exception procedures require Reclamation to provide NMFS with a contingency plan and written justification "that all actions within Reclamation's authorities and discretion are being taken to preserve cold water at Shasta Reservoir for the protection of winter-run," along with other requirements, including notification to the SWRCB that "meeting the biological needs of winter-run and the needs of resident species in the Delta, delivery of water to nondiscretionary Sacramento Settlement Contractors, and Delta outflow requirements per D-1641, may be in conflict in the coming season and requesting the Board's assistance in determining appropriate contingency measures...." Id.

The NMFS BiOp contains an entire section setting forth an ITS that permits "incidental take" (i.e. , exempts from Section 9 liability) associated with at least a portion of CVP/SWP operations, provided that Reclamation and DWR implement certain RPMs and terms and conditions set forth within the ITS. BOR 8322-8380. By its own terms, the ITS

is applicable to all activities related to the long-term operations of the CVP and SWP, as described in appendix 1 to this [BiOp] and revised by the proposed RPA in section 11 ... including dams and reservoirs, power plants and pumping facilities, administration of water contracts, implementation of habitat mitigation measures, operation of hatchery programs, fish salvage facilities, and research and monitoring activities.

BOR 8323. However, the ITS specifically disclaims coverage for nondiscretionary water deliveries as follows:

In the event that Reclamation determines that delivery of quantities of water to any contractor is nondiscretionary for purposes of the ESA, any incidental take due to delivery of water to that contractor would not be exempted from the ESA section 9 take prohibition in this [BiOp].

BOR 8324. Based in part on this language, this Court previously held that the ITS does not provide take protection to Reclamation for non-discretionary deliveries under the SRS Contracts. NRDC v. Norton , 236 F.Supp.3d at 1235. Relatedly, it appears to be undisputed that no ITP has been issued to any SRS Contractor (or anyone else) related to the diversion of water pursuant to the mandatory delivery provisions of the SRS Contractors.

It is with all this in mind that the case turns to the events of 2014 and 2015. According to SWRCB hydrologic classifications, 2012 was considered a "below normal" year, 2013 was a "dry" year, and 2014 was a "critical" year, with the latter designation triggering Article 5 of the SRS Contracts for the first time since 1994. SRSR # 138. In February 2014, Reclamation projected that the Clear Creek temperature compliance point "did not appear to be achievable" and therefore that the NMFS BiOp RPA required development of a drought contingency plan to be submitted to NMFS by March 1, 2014. FDR # 139 (citing BOR 8859).

The SRS Contractors named in the 6SC diverted 270,089 AF of water in May 2014, 264,641 AF in June, and 284,773 in July. SRSR # 147. In addition, also in the spring of 2014, Reclamation designated for transfer certain volumes of SRS Contract water to other water users. PSUF # 148. Some of this water was transferred in the months of designation, while other volumes were designated as transfer water but delivery was deferred to other months. It is difficult to discern from the present record exactly the volumes of water released for immediate transfer in the spring, but Federal Defendants have admitted to transferring more than 40,000 AF in April through June 2014, ECF No. 1210-1 at 37 n.25, with an additional 21,000 AF in July 2014. In total, it appears that Reclamation approved for transfer and actually transferred more than 100,000 AF of SRS Contract water by the end of the 2014 water year. 1 BOR 10859.

Plaintiffs assert that "water to satisfy the SRS Contractors' diversions and transfers" totaled 900,000 AF in May through July 2014 and that this represented more than two-thirds of the more than 41.3 MAF total water releases from Keswick during that timeframe. PSUF # 150. Taking the more 5 conservative numbers related to transfer water discussed above (i.e. , counting only water that was 6 actually released for transfer, rather than all water designated for transfer) during that time period, the 7 total released "to satisfy the SRS Contractors" nonetheless exceeded 880,000 AF. Likewise accepting 8 the SRS Contractors' evidence indicating that the total volume of water released from Keswick from 9 May through July was more than 1.6 MAF, SRSR # 150, the ratio of water released related to the SRS 10 Contracts versus overall releases is still more than half. But, the relationship between Keswick releases 11 and the SRS Contracts is complex. As pointed out by the SRS Contractors, some water diverted under 12 SRS Contractors named in the 6SC may include water that was not released from Keswick but rather 13 was available from a downstream tributary source; relatedly, Reclamation is required by the NMFS 14 BiOp to make potentially large minimum releases (possibly as much as 193,400 AF a month) of water 15 from Keswick for other purposes. Id.

According to records kept by Reclamation, by August 2014, daily average temperatures at Clear Creek exceeded 56°F on more than half of the days of the month, with a monthly average of 56.1°F; in 18 September the average daily temperature was 58.5°F; and for the month of October, the daily average 19 temperature rose to 61.0°F. FDR # 155 (citing records available at 20 https://www.usbr.gov/mp/cvo/temperature.html (last visited Sept. 24, 2018) ).

By the end of September 2014, EOS storage in Shasta Reservoir was 1.157 MAF. SRSR # 161.

The record reflects that by early 2015, Reclamation concluded that "[t]he effects of limited cold water storage and loss of temperature control out of Keswick Dam from early September through the fall of 2014 led to substantial egg and fry mortality." BOR 13442. NMFS similarly concluded that "the egg and fry life history stages of winter-run in broodyear 2014 experienced approximately 95% temperature-related mortality last year - far greater than what was predicted by last year's forecast." BOR 12531.

A similar pattern was observed in 2015, which was once again designated a "Critical Year." See PSUF # 167 (referencing BOR 12869-70, which discusses 2015 as a Critical Year). In February 2015, Reclamation forecasted that EOS Shasta Reservoir storage would be approximately 1.3 MAF, triggering RPA 1.2.3.C's drought contingency procedures. FDR # 166. Corresponding Sacramento River temperature modeling indicated that 56 degrees Fahrenheit could not be achieved through the season at the Clear Creek TCP. Id.

The SRS Contractors named in the 6SC diverted 82,476 AF of water in April 2015; 249,660 AF in May; 264,641 AF in June; and 256,422 AF in July. SRSR # 180. In addition, Reclamation approved for transfer more than 25,000 AF of water in May 2015, more than 40,000 AF in June, and more than 38,000 AF in July. PSUF # 181. It appears, however, that the volumes of water approved for transfer in May and June 2015 may not have actually been transferred until later in the water year. SRSR # 181. That 38,000 AF was actually transferred in July appears to remain undisputed. Id.

In April and May of 2015, daily average temperatures at the Clear Creek compliance point remained below 56°F. FDR # 188. In June 2015, daily average temperatures at the Clear Creek temperature compliance point exceeded 56°F on all but one day of that month. Id. (citing records available at https://www.usbr.gov/mp/cvo/vungvari/sactemprpt_0615.pdf (last visited Sept. 24, 2018) ). But, as Federal Defendants point out, the temperature threshold was adjusted up to 58°F from June 5 through the end of that month. FDR # 189. On July 1, 2015, NMFS formally approved Reclamation's proposal to target an average water temperature of "57°F at [Clear Creek], not to exceed 58°F unless going above is needed to conserve water pool based on real-time temperature management team guidance," subject to certain other conditions. BOR 12566-12582. The average daily temperature at Clear Creek was 57.1°F for July 2015, 56.9°F for August, 56.7°F for September, and 56.8°F for October of 2015. BOR 13480-83.

By the end of the 2015 season, fisheries agencies estimated that winter-run Chinook egg and fry mortality had reached more than 97%. Poole Decl., Ex. 64 (ECF No. 1178-18) (NOAA Fisheries presentation indicating few winter-run eggs in 2015 survived due to "very little cold water in Shasta to cool the upper Sacramento"); Ex. 83 (ECF No. 1179-12) at 1, 3-4 (NMFS describing an 85% temperature dependent mortality to winter-run in 2015); Ex. 72 (ECF No. 1179-1) at 1 (indicating juvenile spring-run likely suffered higher than average mortalities in the mainstem Sacramento River).

V. APPLICABLE CAUSATION STANDARDS

As mentioned, Section 9 of the ESA makes it unlawful for "any person" to "take" a listed species. 16 U.S.C. § 1538(a)(1)(B). The term "take" means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Id. § 1532(19). As used in the statutory definition of "take," the term "harm" is further defined by regulation to mean "an act which actually kills or injures fish or wildlife. Such an act may include significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering." 50 C.F.R. § 222.102.

In applying the take prohibition of Section 9, courts apply concepts from tort law. For example, it is well established that principles of proximate cause apply to Section 9 claims. See Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or. , 515 U.S. 687, 700 n.13, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) ; see also United States v. Glenn-Colusa Irr. Dist. , 788 F.Supp. 1126, 1133-34 (E.D. Cal. 1992) (indicating federal common law, rather than state law regarding tort principles applies to Section 9 claims). As the Supreme Court has held in a different context, "to say one event proximately caused another is a way of making two separate but related assertions." Paroline v. United States , 572 U.S. 434, 444, 134 S.Ct. 1710, 188 L.Ed.2d 714 (2014). "First, it means the former event caused the latter. This is known as actual cause or cause in fact." Id.

The concept of actual cause "is not a metaphysical one but an ordinary, matter-of-fact inquiry into the existence ... of a causal relation as laypeople would view it." 4 F. Harper, F. James, & O. Gray, Torts § 20.2, p. 100 (3d ed. 2007).

Id. Second, because "[e]very event has many causes ... only some of them are proximate, as the law uses that term." Id. "So to say that one event was a proximate cause of another means that it was not just any cause, but one with a sufficient connection to the result." Id.

The idea of proximate cause, as distinct from actual cause or cause in fact, defies easy summary. It is "a flexible concept," Bridge v. Phoenix Bond & Indemnity Co. , 553 U.S. 639, 654, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008), that generally "refers to the basic requirement that ... there must be 'some direct relation between the injury asserted and the injurious conduct alleged,' " CSX Transp., Inc. v. McBride , 564 U.S. [685, 707, 131 S.Ct. 2630, 180 L.Ed.2d 637] (2011) (Roberts, C.J., dissenting) (quoting Holmes v. Securities Investor Protection Corporation , 503 U.S. 258, 268, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992) ). The concept of proximate causation is applicable in both criminal and tort law, and the analysis is parallel in many instances. 1 W. LaFave, Substantive Criminal Law § 6.4(c), p. 471 (2d ed. 2003) [ ]. Proximate cause is often explicated in terms of foreseeability or the scope of the risk created by the predicate conduct. See, e.g., ibid. ; 1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 29, p. 493 (2005) (hereinafter Restatement).

Id. at 444-45, 134 S.Ct. 1710. "A requirement of proximate cause thus serves, inter alia , to preclude liability in situations where the causal link between conduct and result is so attenuated that the consequence is more aptly described as mere fortuity." Id. at 445, 134 S.Ct. 1710 (internal citation omitted). Whether a court should impose a requirement of proximate cause upon a statutory cause of action, as opposed to a less restrictive requirement of factual cause alone, is a matter of statutory interpretation. See id. at 446, 134 S.Ct. 1710. As mentioned, it is well established that proximate cause applies to Section 9. See Sweet Home , 515 U.S. at 700 n.13, 115 S.Ct. 2407 ; see also Cascadia Wildlands v. Kitzhaber , 911 F.Supp.2d 1075, 1084 (D. Or. 2012) ("It is well accepted that proximate cause is an element of ESA Section 9 claims."); see also Seattle Audubon Soc'y v. Sutherland , 2007 WL 1300964, *11 (W.D. Wash. May 1, 2007) (" Sweet Home established that proximate causation is a relevant consideration of the ESA inquiry").

A. Causation in Fact

The Parties dispute how exactly the "causation in fact" standard should be applied in the present case. The SRS Contractors argue that proof of actual causation under the ESA must meet a strict "but-for" test of causation, which requires proof that harm would not have occurred but for the defendants' action. ECF No. 1225 at 30 (citing Sweet Home , 515 U.S. at 700 n.13, 115 S.Ct. 2407 ). Plaintiffs seem to recognize that strict but-for causation may be difficult to establish in this case, where impacts to listed species likely are measurable (if at all) only as the result of aggregate diversions by a group of defendants. Plaintiffs maintain that strict but-for causation is not required here, citing the Supreme Court's 2014 decision in Paroline v. United States , 572 U.S. 434, 134 S.Ct. 1710, 188 L.Ed.2d 714 (2014), as well as the Federal Register notice promulgating the harm definition set forth in 50 C.F.R. § 222.102 : Endangered and Threatened Wildlife and Plants; Definition of "Harm," 64 Fed. Reg. 60727-01 (Nov. 8, 1999). ECF No. 1184 at 32-33.

Plaintiffs' reference to Paroline merits close examination. In Paroline , the Supreme Court addressed whether strict "but-for" causation should be required to demonstrate causation in fact under 18 U.S.C. § 2259, the restitution provisions of the federal criminal statute that prohibits possession of images of child pornography. 572 U.S. at 449-50, 134 S.Ct. 1710. The Court recognized that the "traditional way to prove that one event was a factual cause of another is to show that the latter would not have occurred 'but for' the former." Id. However, a showing of but-for causation could not be made against Paroline because, given that the defendant was an anonymous possessor of images in wide circulation on the internet, "it [could not] be shown that [the victim's] trauma and attendant losses would have been any different but for Paroline's offense." Id. at 450, 134 S.Ct. 1710. Therefore, the victim and the government urged application of a less restrictive causation standard. Id. at 451, 134 S.Ct. 1710. The Court noted that the "most common" exception to the but-for causation requirement is applied where "multiple sufficient causes independently ... produce a result." Id. (internal citations omitted). That was rejected as an "ill fit" to the circumstances because "Paroline's possession of two images of the victim was surely not sufficient to cause her entire losses from the ongoing trade in her images. Nor is there a practical way to isolate some subset of the victim's general losses that Paroline's conduct alone would have been sufficient to cause." Id.

As an alternative, the Court examined a causal test strikingly similar to the one advanced by Plaintiffs here: "[w]hen the conduct of two or more actors is so related to an event that their combined conduct, viewed as a whole, is a but-for cause of the event, and application of the but-for rule to them individually would absolve all of them, the conduct of each is a cause in fact of the event." Id. at 451, 134 S.Ct. 1710 (citing W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 41, p. 268 (5th ed. 1984) ). The Court also discussed a "similar exception" for "[m]ultiple sufficient causal sets," set forth in 1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 27, Comment f, at 380-381. Paroline , 572 U.S. at 451-52, 134 S.Ct. 1710. At the Court explained:

This is where a wrongdoer's conduct, though alone "insufficient ... to cause the plaintiff's harm," is, "when combined with conduct by other persons," "more than sufficient to cause the harm." The Restatement offers as an example a case in which three people independently but simultaneously lean on a car, creating enough combined force to roll it off a cliff. Even if each exerted too little force to move the car, and the force exerted by any two was sufficient to the move the car, each individual is a factual cause of the car's destruction.

Id. at 452, 134 S.Ct. 1710 (internal citations omitted). The Supreme Court explained that such alternative causal tests are necessary in some circumstances to "vindicate the law's purposes."

It would be anomalous to turn away a person harmed by the combined acts of many wrongdoers simply because none of those wrongdoers alone caused the harm. And it would be nonsensical to adopt a rule whereby individuals hurt by the combined wrongful acts of many (and thus in many instances hurt more badly than otherwise) would have no redress, whereas individuals hurt by the acts of one person alone would have a remedy.

Id.

Yet, the Paroline Court warned that "[t]hese alternative causal standards, though salutary when applied in a judicious manner, also can be taken too far." Id. Specifically, the Court found it would be inappropriate to impose full restitution upon the defendant for the entire aggregately caused harm to the victim, in part because there was no language expressing suggesting Congress intended such an approach, particularly in the context of criminal restitution, which serves "purposes that differ from (though they overlap with) the purposes of tort law," keeping in mind the "bedrock principle that restitution should reflect the consequences of the defendant's own conduct." Id. at 453, 134 S.Ct. 1710.

Nonetheless, although the Court rejected the suggestion that the victim's entire losses from the ongoing trade in her images were "suffered ... as a proximate result" of Paroline's offense for purposes of restitution, the Court nonetheless found it would "produce anomalous results to say that no restitution is appropriate in these circumstances." Id. at 456-57, 134 S.Ct. 1710. Examining the harms the statute meant to prevent, and finding there was no doubt "Congress wanted victims to receive restitution for harms like this," the Court found it "unacceptable to adopt a causal standard so strict that it would undermine congressional intent where neither the plain text of the statute nor legal tradition demands such an approach." Id. at 457-58, 134 S.Ct. 1710. The Court therefore held that "where it can be shown both that a defendant possessed a victim's images and that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying § 2259 should order restitution in an amount that comports with the defendant's relative role in the causal process that underlies the victim's general losses." Id. at 458, 134 S.Ct. 1710. Paroline therefore stands for the proposition that adopting a strict but-for causal standard would be inappropriate where doing so would conflict with congressional intent, but also that courts must be extremely cautious when applying alternative causal standards.

This must be harmonized with the Supreme Court's decision in Sweet Home , the only Supreme Court case addressing the causal standard under Section 9. In Sweet Home , the dissent asserted that the regulatory definition of harm "dispenses with the foreseeability of harm." 515 U.S. at 731, 115 S.Ct. 2407 (Scalia, J., dissenting). In footnote 13, the majority rejected this position:

[T]he regulation merely implements the statute, and it is therefore subject to the statute's "knowingly violates" language, see 16 U.S.C. §§ 1540(a)(1), (b)(1), and ordinary requirements of proximate causation and foreseeability. Nothing in the regulation purports to weaken those requirements. To the contrary, the word "actually" in the regulation should be construed to limit the liability about which the dissent appears most concerned, liability under the statute's "otherwise violates" provision. The Secretary did not need to include "actually" to connote "but for" causation, which the other words in the definition obviously require.

515 U.S. at 700 n.13, 115 S.Ct. 2407 (citations omitted).

At first glance, this language seems incompatible with Plaintiffs' position on causation. However, it is important to recognize that the dispute before the Court in Sweet Home was a facial challenge to FWS's inclusion of "habitat modification" within the regulatory definition of "harm." Id. at 699, 115 S.Ct. 2407. Challengers, small landowners, logging companies, and families dependent on the forest products industries, argued that the regulation should have limited "harm" to "direct application of force against protected species." Id. at 697, 115 S.Ct. 2407. The Sweet Home majority rejected this position for several reasons. First, the Court held that "unless the statutory term 'harm' encompasses indirect as well as direct injuries, the word has no meaning that does not duplicate the meaning of other words [the ESA] uses to define 'take.' " Id. at 697-98, 115 S.Ct. 2407. Second, the broad purpose of the ESA supported the "decision to extend protection against activities that cause the precise harms Congress enacted the statute to avoid," id. at 698, 115 S.Ct. 2407, including provision of "a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved." Id. (quoting 16 U.S.C. § 1531(b) ). Third, the fact that the 1982 amendments to the ESA permitted the issuance of permits for takings Section 9 would otherwise prohibit "if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity," strongly suggested that Congress understood Section 9 to prohibit indirect as well as direct takings. Id. at 700, 115 S.Ct. 2407. Finally, the Court concluded that FWS's interpretation of the statutory term "harm" found support in the legislative history of the ESA, which indicated "take" should be interpreted in "the broadest possible terms." Id. at 704, 115 S.Ct. 2407 ; see also id. at 705, 115 S.Ct. 2407 (discussing House Report that noted "take" included "harassment, whether intentional or not ") (emphasis in original). It was within the context of refusing to "invalidate the Secretary's understanding of 'harm' in every circumstance, even when an actor knows that an activity, such as draining a pond, would actually result in the extinction of a listed species by destroying its habitat," that the Supreme Court noted that the regulatory term "actually" requires "but-for" causation.

Is Footnote 13 dispositive even in light of Paroline's later and far more detailed (and thoughtful) exposition of exceptions to "but-for" causation? This presents a very difficult question. As in Paroline , the facts of this case may present a circumstance where but-for causation is impossible to prove as to at least some individual defendants. Yet, as the Sweet Home Court acknowledges, Congress intended "take" to be interpreted in "the broadest possible terms." The Court also notes that at least one of the concerns underpinning the "cautionary" mandate of Paroline is arguably unique to the restitution context, namely the fact that an expansive causation pathway in that context would undermine the "bedrock principle that restitution should reflect the consequences of the defendant's own conduct." 572 U.S. at 455, 134 S.Ct. 1710. In contrast, what Footnote 13 of Sweet Home seems most concerned with is avoiding the dissent's concern over imposing "strict liability" upon "routine" activities of landowners (e.g., farming, ranching, roadbuilding, construction and logging). This is avoided by requiring every cause to be proximate, not by imposing a strict "but-for" actual causation standard.

On balance, the Court finds the most appropriate conclusion here is that strict but-for causation cannot be required under the circumstances. Any other finding would exclude categorically from Section 9 liability any party whose conduct is individually insignificant, but is collectively significant, no matter how foreseeable to each of the individual actors the collective consequences of their actions.

This conclusion finds support in the 1999 Federal Register notice promulgating an NMFS definition of "harm" substantially identical to the FWS definition upheld in Sweet Home several years earlier. NMFS indicated that a "principal purpose" of promulgating the definition "is to provide clear notification to parties that habitat modification or degradation may harm listed species and, therefore, constitute a 'take' under the ESA." 64 Fed. Reg. at 60,730. NMFS provided a list of several examples of "habitat-modifying activities that may fall within the scope" of the definition, including "[r]emoving water or otherwise altering streamflow when it significantly impairs spawning, migration, feeding or other essential behavioral patterns." Id. Pertinent to the causation inquiry, NMFS noted that "[i]n all instances a causal link must be established between the habitat modification and the injury or death of listed species." Id. In response to comments urging NMFS to specifically adopt the legal principles of "proximate cause" and "foreseeability" as limitations of liability for "harm" to listed species, NMFS responded:

NMFS agrees that the regulation does not create liability for hypothetical, speculative or conjectural injury as can be deduced from the term "actual." NMFS notes that that same term "actual" provides for cause-in-fact liability. NMFS' definition of "harm" is consistent with the views articulated in the opinion of the U.S. Supreme Court in Sweet Home v. Babbitt . In that opinion, the Court did not limit its discussion to a single term of art for the causal links necessary to show "harm" to a species resulting from habitat modification. The specific elements of causation to be proved, including foreseeability, will be determined on a case-by-case basis. Further, this document and the examples discussed in it, are intended to provide the public with information about activities which may result in injury or death of listed species. In NMFS' view, it is reasonably foreseeable that these activities and similar activities may injure or kill fish and wildlife, including listed species. While an action "harms" a listed species only if it actually results in the death or injury of a listed species, NMFS continues to encourage members of the public to consult with its staff whenever an activity is undertaken in the habitat of listed species and/or when listed species are present.

Id. at 60,729-30.

Another comment on the proposed rule expressed concern that "it is very difficult to determine when and whether modifications to aquatic habitat will injure fish. Sometimes it is activities occurring upstream from the apparent injury and sometimes it is simply cumulative degradation of the fish habitat." Id. at 60,728. NMFS responded by agreeing "that sometimes it is difficult to isolate factors causing injury to listed species," and offered the following guidance:

All factors that reasonably could have caused the habitat modification or the injury itself must be carefully examined. Whenever an action alone or in combination with, or in concert with other actions is reasonably certain to injure or kill listed species, it will constitute a take. An action which contributes to injury can be a "take" even if it is not the only cause of the injury. This concept includes actions reasonably certain to contribute to the death or injury of listed species by significantly impairing the essential behavioral patterns of listed species.

Id. at 60,728. NMFS's position on the application of causation is entirely consistent with Plaintiffs' position here.

The Court finds Glenn-Colusa , 78