MEMORANDUM DECISION AND ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION (DOC. 7)

LAWRENCE J. O'NEILL, District Judge.

I. INTRODUCTION

Plaintiffs AquAlliance and the California Sportfishing Protection Alliance ("Plaintiffs"), both non-profit environmental organizations, bring this lawsuit against the United States Bureau of Reclamation ("Reclamation" or "the Bureau"), as well as various federal officers1 (collectively, "Federal Defendants"), alleging that the Bureau violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq., by approving the "2014 San Luis & Delta-Mendota Water Authority Water Transfer Project" (the "2014 Transfer Project"), which would permit water rights holders or contractors north of the Sacramento-San Joaquin Delta ("Delta") to sell water to members of the San Luis & Delta-Mendota Water Authority ("SLDMWA"), whose members then would make use of the water in areas that lie south of the Delta. Doc. 1 ("Compl.") at ¶ 57. The Bureau's role would be to review any proposed transfers and facilitate those transfers by conveying the water through the Delta by way of the Jones and Banks Pumping Plants and the Delta-Mendota Canal. Id.

In April 2014, the Bureau issued an Environmental Assessment ("EA") and approved a Finding of No Significant Impact ("FONSI") for the 2014 Transfer Project under NEPA, 42 U.S.C. § 4321, et seq. Among other things, the EA and FONSI state that "[s]pecial status fish species," such as the Delta smelt, "are generally not in the Delta during the transfer period (July-September) and effects to these fish species from transferring water during this timeframe were considered in the [National Marine Fisheries Service and U.S. Fish and Wildlife Service Biological Opinions]." Declaration of Kaylee Allen ("Allen Decl."), Doc. 33-1, Ex. 2 ("Final EA") at 3-13; Allen Decl., Ex. 3 ("FONSI") at 8.2

Plaintiffs allege that the Bureau's approval of the 2014 Transfer Project violated NEPA in two ways.3 First, Plaintiffs assert that the Final EA and FONSI's conclusion that Delta smelt will not be present in the interior Delta is arbitrary and capricious because it fails to acknowledge that, due to hydrologic conditions and pumping practices, the low-salinity zone ("LSZ"), in which Delta smelt normally reside during the relevant time of the year, will move into the central Delta this year. Doc. 8 at 14. Plaintiffs also assert that the Bureau should have prepared a supplemental EA to take into consideration "significant new information" that ostensibly emerged after the issuance of the EA, namely (1) the May 2, 2014 State Water Resources Control Board ("SWRCB") order that relaxed Delta water quality standards; and (2) an analysis performed by Plaintiffs' expert, Tom Cannon, that purports to show that the method used to estimate Delta outflow for management purposes underestimates actual Delta outflow. Id. at 11.

This case was originally filed in the Sacramento Division of the Eastern District of California, but was transferred to the undersigned in the Fresno Division pursuant to Local Rule 123 (Related Cases). Doc. 24. On June 23, 2014, the Court granted the unopposed petition for intervention of SLDMWA and Westlands Water District, one of SLDMWA's member water districts (collectively, "Defendant-Intervenors"). Doc. 31.

Before the Court is Plaintiffs' motion for a preliminary injunction that would bar Federal Defendants from approving or carrying out any water transfers under the 2014 Transfer Project. Doc. 8. Although Plaintiffs' motion was not filed until June 13, 2014, in light of the allegation that transfers are scheduled to take place between July 1, 2014 and September 30, 2014, Plaintiffs' motion to shorten time was granted and a hearing was set for July 10, 2014. See Docs. 14 & 22. Federal Defendants and Defendant Intervenors filed oppositions on June 27, 2014. See Docs. 33 & 48. Plaintiffs filed a reply on July 3, 2014. Doc. 64. On July 7, 2014, the Court requested supplemental briefing on several discrete legal issues and vacated the July 10 hearing. Doc. 71. The parties responded to the Court's request on July 9, 2014. Docs. 72-74. Having reviewed the entire record, the Court finds this matter suitable for decision on the papers pursuant to Local Rule 230(g). As set forth below, the Court finds that Plaintiffs are not likely to succeed on the merits of the NEPA claims presented and that, therefore, the pending motion for a preliminary injunction must be DENIED.

II. STANDARD OF DECISION

In order to secure injunctive relief prior to a full adjudication on the merits, a plaintiff must show "that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7, 20 (2008). Injunctive relief is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Id. at 22.

The Ninth Circuit follows a "sliding scale" approach to preliminary injunctions. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011). Under this approach, a weaker showing as to the likelihood of success on the merits may be offset by a stronger showing with respect to the balance of the equities. Id. at 1131-32. For example, if the moving party is unable to establish a likelihood of success on the merits, preliminary injunctive relief may still be had if the movant can show that (1) there are at least "serious questions" going to the merits; (2) the balance of the hardships tips "sharply" in its favor; and (3) the other factors listed in Winter (i.e., irreparable harm and in the public interest) are satisfied. Id. at 1135. "Serious questions" in the context of preliminary injunctive relief are those that are "substantial, difficult, and doubtful, as to make them a fair ground for litigation and thus for more deliberative investigation." Republic of Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988) (citation and internal quotation marks omitted). They do not need to "promise a certainty of success, nor even present a probability of success, but must involve a fair chance of success on the merits." Id. (citation and internal quotation marks omitted).

III. BACKGROUND4

The Central Valley Project ("CVP") and the State Water Project ("SWP"), "operated respectively by [Reclamation] and the State of California, are perhaps the two largest and most important water projects in the United States." San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 592 (9th Cir. 2014) ("San Luis v. Jewell"). "These combined projects supply water originating in northern California to more than 20,000,000 agricultural and domestic consumers in central and southern California." Id. As part of CVP operations, Reclamation releases water stored in CVP reservoirs in northern California, which then flows down the Sacramento River to the Delta. Id. at 594. Pumping plants in the southern region of the Delta then divert water through the Delta-Mendota Canal and other facilities to various users, including members of SLDMWA.5

As a condition of Reclamation's operation of CVP facilities in the Delta, Reclamation must comply with SWRCB Decision 1641 ("D-1641"). See Pac. Coast Fed'n of Fishermen's Assoc'ns v. Gutierrez, 606 F.Supp.2d 1122, 1133 (E.D. Cal. 2008). D-1641 implements the Bay Delta Water Quality Control Plan through modifications to the CVP, SWP, and other water rights permits. See generally Allen Decl., Ex. 12 (hereinafter cited only as "D-1641"). D-1641 affects operations of the CVP by regulating salinity levels in the Delta, setting minimum Delta outflow requirements, and regulating export rates of the federal and state water projects. Id.

Reclamation provides CVP water to users through different types of contracts provided for under Reclamation Law. See Tehama-Colusa Canal Auth. v. U.S. Dep't of the Interior, 721 F.3d 1086, 1091 (9th Cir. 2013) (summarizing the types and priorities of contracts within the CVP). Because of the extreme drought conditions in California, this water year Reclamation anticipates delivering to Sacramento River Settlement Contractors 75% of their contract supplies, and 0% of contract supplies to south-of-Delta water service contractors, including SLDMWA. Final EA 1-3; Decl. of Richard Woodley ("Woodley Decl."), Doc. 47, at ¶ 6.

A. Delta Smelt.

The Delta is "the lone habitat for the delta smelt, a threatened species under the Endangered Species Act." San Luis v. Jewell, 747 F.3d at 592. It is undisputed that the delta smelt is in "imminent danger of extinction." Id. at 595-96. "The 2008 delta smelt population was estimated at 1.5% of [its] 1980 level . . . and 2009 levels were estimated to be the lowest on record." Id. at 596 n. 4.

"In 2008, Reclamation requested a biological opinion [("2008 BiOp")] from the U.S. Fish and Wildlife Service [("FWS")], in accord with the [Endangered Species Act ("ESA")], on whether its continued operations would jeopardize the smelt." Id. at 592. In its 2008 BiOp, FWS informed Reclamation that continued, long-term CVP operations would jeopardize the continued existence of the delta smelt, but proposed a multi-component "reasonable and prudent alternative" ("RPA") that would avoid jeopardy, which Reclamation has adopted and is implementing. Id; Allen Decl., Ex. 4 (2008 BiOp) at 294-300.6

The 2008 BiOp references as relevant to CVP impacts upon delta smelt two related measures of describing salinity in the Delta. San Luis v. Jewell, 747 F.3d at 595 (citing 2008 BiOp at 147). The first standard is the LSZ, which "is the transition point between the freshwater of the inland rivers and brackish water flowing eastward from San Francisco Bay and the Pacific Ocean, and includes water ranging in salinity from 0.5 parts per thousand to six parts per thousand." Id. (citing 2008 BiOp at 191). The second standard, "X2," represents the point in the Delta where the average daily salinity at the bottom of the water column is two parts per thousand. Id. "The LSZ, which encompasses a larger region of the []Delta, is generally centered around X2. . . . The agencies use X2 as a marker for the LSZ as well as a habitat indicator for fish and as a regulatory standard." Id.

The 2008 BiOp7 found that X2 generally tracks the "center point of the LSZ, which is considered suitable spawning habitat for the smelt." Id. at 616 (citing 2008 BiOp at 236). In 2010, FWS further explained:

75 Fed. Reg. 17,667-01, 17,669 (Apr. 7, 2010).

B. SWRCB Winter/Spring Temporary Urgency Change Orders.

This Court recently recognized the historic nature of drought conditions facing Californians in 2014:

Friant Water Auth. v. Jewell, 2014 WL 2197993, ___ F. Supp. 2d ____, at *7 (E.D. Cal. May 27, 2014) (internal citations omitted).

Relevant to this case, the SWRCB's first TUC Order of the year, issued on January 31, 2014, modified the minimum Delta outflow levels to allow for a Net Delta Outflow Index ("NDOI") of no less than 3,000 cubic feet per second ("cfs") in February, and "restricted exports in the Delta at the SWP and CVP pumping facilities to health and safety needs of no more than 1,500 cfs, with the exception of transfers." See Allen Decl., Ex. 20 at 2. Because compliance with the unmodified requirements of D-1641 is assumed in the 2008 BiOp, in conjunction with each TUC petition and in order to ensure compliance with the ESA, Reclamation sought concurrence from FWS that there would be no additional adverse effects on delta smelt or its critical habitat due to the requested changes to D-164 beyond the effects recognized in the 2008 BiOp. See Declaration of Ren Lohoefener ("Lohoefener Decl."), Doc. 47-2, at ¶¶ 6-7. The first of these concurrence requests occurred in conjunction with the January TUC petition. In a memorandum dated January 31, 2014, FWS concurred that the January 31 proposed modifications to D-1641, including the transfer exemption to outflow, would not cause any additional adverse effects on delta smelt or its critical habitat beyond those already analyzed in the 2008 BiOp. Id. at ¶ 6; Allen Decl., Ex. 25 at 2.

Allen Decl., Ex. 25 at 2 (emphasis added). FWS concurred with other TUC Orders and other drought-related operational changes for the first part of the year on February 28 and March 14. See Allen Decl., Exs. 10 & 21.

C. Reclamation's Long-Term Water Transfer Planning & NEPA Compliance.

In recent years Reclamation has reviewed and approved numerous short-term plans that facilitate the voluntary transfer of water from willing sellers north of the Delta to willing buyers south of the Delta who may be experiencing water shortages. See Allen Decl., Ex. 5 at 5, Ex. 2 at 23; Woodley Decl. at ¶ 3. "Such transfers are used more often in dry years when water supplies are limited and there is greater capacity at CVP facilities to convey water across the [Delta] through the export facilities because of the limited availability of CVP water supplies." Woodley Decl. at ¶ 2. On January 17, 2014, and April 25, 2014, the Governor of California issued Emergency Drought Proclamations emphasizing the importance of transfers as a tool to be used during drought conditions. See Allen Decl., Ex. 11. Reclamation is currently preparing an Environmental Impact Statement ("EIS") under NEPA that would cover potential future water transfers for a period of up to 10 years, and anticipates releasing a draft to the public in September 2014. Woodley Decl. at ¶ 12.

D. 2014 Water Transfer Project & Draft EA.

SLDMWA members are among the CVP contractors located south of the Delta who will experience severe shortages of water this year and have been seeking potential transfers of water. See Final EA at 1-2. Accordingly, the 2014 Transfer Project proposes "the transfer of water in contract year 2014 to Participating Members of the SLDMWA." Id. at 2-1. Reclamation's role in those transfers will be to approve and facilitate the transfer through use of federal facilities. See id. at 1-2.

In order to evaluate the potential environmental effects of Reclamation's "proposed action" approving and facilitating of the transfer of up to 175,226 AF of water in 2014, and to determine whether the proposed action would result in significant environmental impacts, Reclamation prepared and released a Draft Environmental Assessment ("Draft EA") on March 13, 2014 for public comment. See Allen Decl., Ex. 1. The Draft EA states:

Id. at 15. The Draft EA also mentions the fact that on January 31, 2004 the SWRCB approved a Temporary Urgency Change ("TUC") Order that relaxed certain Delta regulatory requirements governed by D-1641 and states that Reclamation will operate to the TUC Order as it may be amended and as necessary to address critically dry conditions. Id.

E. Plaintiffs' Comments on the Draft EA.

On April 2, 2014, AquAlliance, through counsel Thomas Lippe and member Barbara Vlamis, submitted comments on the EA. Mr. Lippe's comments related to air quality impacts. Allen Decl., Ex. 2 at 115-21. Ms. Vlamis's comments referenced an analysis by Thomas Cannon entitled "Summer 2013: The demise of Delta smelt under D-1641 Delta Water Quality Standards," and stated:

Id. at 134 (emphasis added) (footnote omitted).

Reclamation responded to both of those submissions in its Final EA. See id. at 165-67, 175. Specifically, in response to Ms. Vlamis's comment, the EA cited to FWS's 2008 BiOp for the proposition that delta smelt are not near the pumps in the summer months and would not be affected by transfers, stating:

Id. at 175.

F. Reclamation's Consultation with FWS Regarding Transfers.

In accordance with its obligations under Section 7 of the ESA, 16 U.S.C. § 1536, on March 26, 2014, Reclamation requested consultation with FWS on the potential effects of 2014 transfers on listed species and their designated critical habitats. See Allen Decl., Ex. 6 at 1. On April 17, 2014, Reclamation provided an amended Biological Assessment ("BA")8 that included the latest information on drought planning and water allocations. See Allen Decl., Ex. 5 at 11 (discussing the operational parameters, including the January 31 TUC Order as may be amended).

The starting point for this consultation was the 2008 BiOp, which discussed the potential effects of transferring up to 600,000 AF of water in "critical" and "dry" years, and anticipated that transfers would be limited to the months of July through September, when "delta smelt are rarely present in the Delta[.]" 2008 BiOp at 229. Among the five RPA components included in the 2008 BiOp, Components 1 and 2 limit reverse flows in Old and Middle Rivers ("OMR") caused by the Jones and Banks pumping plants in order to "to reduce entrainment of pre-spawning adult delta smelt during December to March by controlling OMR flows during vulnerable periods" and "improve flow conditions in the Central and South Delta so that larval and juvenile delta smelt can successfully rear in the Central Delta and move downstream[,]" respectively. Id. at 280. The RPA does not limit reverse flows between July and September, id. at 280-85, in part because smelt are not thought to be able to transit that part of the delta in the summer because the temperatures are too high. See id. at 364 ("As temperatures rise, trawl data continue to show no fish in the Central and South Delta, and salvage does not occur, OMR flows will be allowed to become as negative as -5,000 cfs. When temperature rises and turbidity drops to levels likely to be inimical to delta smelt (> 25°C, turbidity <12 NTU), no further restrictions are needed as long as salvage remains at or close to zero."); see also id. at 151, 282, 358.

In a memorandum dated April 21, 2014, FWS determined that the effects of the 2014 Transfer Project summarized in the amended BA were covered by the consultation on the 2008 BiOp and that no additional adverse effects to delta smelt or designated critical habitat, or increased incidental take as a result of the 2014 transfers were anticipated to occur. See Allen Decl., Ex. 6 at 2.

G. Final EA on 2014 Transfer Project.

Following receipt of the April 21, 2014 concurrence memorandum from FWS, Reclamation issued a Final EA and FONSI on April 22, 2014, determining, among other things, that the incremental effects of the subject water transfers on special status fish species in the Delta, including delta smelt, would be less than significant. FONSI at 9. The Final EA states:

Final EA at 3-13 (emphasis added).

The EA/FONSI did not directly approve any water transfers. After issuing the FONSI, Reclamation began to receive written transfer requests and written proposals from the willing sellers for approval, which it is currently reviewing. See Woodley Decl. at ¶¶ 8-9. As of July 3, 2014, Reclamation anticipated approving four such transfers by as early as July 7, 2014. Second Declaration of Ronald Milligan, Doc. 67-1, at ¶ 2. Upon approval, Reclamation will begin adjusting CVP operations to make deliveries pursuant to the transfer agreements. Id. at ¶ 4. Shortly after commencement of transfer operations, Reclamation anticipates transfers will account for approximately 100 cfs of total CVP exports. Id. at ¶ 5. As more transfers are approved, transfers are anticipated to account for up to 300 cfs of exports at Jones Pumping Plant later in July through September. Id.

H. The Drought Operations Plan, May 2, 2014 SWRCB TUC Order, and FWS Review.

On April 8, 2014, state and federal agencies issued a Drought Operations Plan ("DOP") and Operational Forecast. See Declaration of Ronald Milligan, Doc. 47-1, at ¶ 13; Allen Decl., Ex. 7 at 3. The DOP outlined proposed operations for April and May, and two possible operational scenarios for June through November, varying the deployment of physical barriers in the Delta. See Lohoefener Decl. at ¶ 7; Allen Decl., Ex. 7 at 81. The DOP mentions that transfers may take place, but notes that increased pumping rates that may be necessitated by the transfers were not included in the description of the DOP. Allen Decl., Ex. 7 at 15. Reclamation transmitted this DOP and Operational Forecast, along with a biological assessment of the effects of implementing the DOP, to FWS on April 8, 2014, again seeking concurrence that drought response actions proposed by Reclamation and DWR in the DOP would result in no additional adverse effects to delta smelt or its critical habitat for the remainder of Water Year 2014 beyond those analyzed in the 2008 BiOp. Id. at 1. By memo dated April 8, 2014, FWS concurred with Reclamation's determination that the proposed modifications for April and May would have no additional adverse effects on delta smelt or its critical habitat, but requested additional information before making a determination for June onward. See Lohoefener Decl. at ¶ 7; Allen Decl., Ex. 8 at 8.

On April 29, Reclamation and DWR applied to the SWRCB for a further modification of the TUC Order. See Allen Decl., Ex. 20 at 1. Reclamation proposed to extend the modified 3,000 cfs NDOI requirement that had already been applied to February, March, and April into May and July. Id. at 2-3.

On May 1, 2014, Reclamation transmitted a memorandum and additional information to FWS regarding the DOP. See Lohoefener Decl. ¶ 8; Allen Decl., Ex. 9. This information clarified that operations in June through November would be implemented as described in the DOP's scenario that did not include any physical delta barriers. Allen Decl., Ex. 9 at 1, 3. It also assumed approval by the SWRCB of a TUC Order that would extend the modified 3,000 cfs NDOI requirement into May and July. Id. at 4. Risks to smelt from the modifications were discussed, including potential habitat constraints due to the upstream tidal excursion of higher salinity water, id. at 6-7, and the potential for additional entrainment at the pumps, id. at 10. The memorandum also contained real-time data from April 2014 showing "that the majority of the adult population" were then located in the Sacramento Deep Water Shipping Cannel, "outside of the influence of the export facilities." Id. at 11, 13-14. The report acknowledged that a limited distribution of smelt larvae were being entrained at the pumps, but explained these individuals would be lost to the population regardless of pumping because of the high temperature "off-ramp" to RPA Action 3 at the end of June, id. at 12, 15, and in any event, "Delta Smelt[, including juveniles,] do not use the South Delta as habitat during the [summer and fall] months." Id. at 15.

In a May 1, 2014 response memorandum, FWS concurred with Reclamation that the proposed modifications for June through November, including a minimum monthly NDOI of 3,000 cfs for the month of July, and a change in the Salinity Standard compliance location to Three Mile Slough, would have no additional adverse effects on delta smelt or its critical habitat beyond those previously analyzed in the 2008 BiOp. See Lohoefener Decl. at ¶ 8; Allen Decl., Ex. 10 at 3-4. On May 2, 2014, the SWRCB issued its amended TUC Order adopting the changes Reclamation and DWR had proposed. Allen Decl., Ex. 20 at 1.

I. Plaintiffs' Request for Supplemental NEPA Review.

On May 30, 2014, Plaintiffs, through counsel, sent Reclamation a letter requesting supplemental NEPA review of the 2014 Transfer Project. Doc. 10, Ex. 1. The letter asserted that the SWRCB May 2, 2014 TUC Order constituted "changed circumstances" requiring a supplemental EA. Id. at 1. In addition, the letter pointed to a "Review of Summer 2014 Water Transfers Federal Environmental Assessment, Report by Tom Cannon, May 29, 2014," in support of the assertion that the SWRCB's May 2, 2014 TUC Order would cause the LSZ to shift further to the east, thereby exposing delta smelt to adverse conditions and higher mortality. Id. at 6-7. The letter asserted that Tom Cannon's May 29, 2014 Report, constituted "new information" not previously analyzed in the April 22, 2014, FONSI. Id. at 1.

Reclamation solicited two expert biologists in the field to review Mr. Cannon's May 29 Report. Allen Decl., Ex. 26 at 1. Those two experts concurred that the concerns outlined in Mr. Cannon's May 29 Report were without merit. Ms. Frances Brewster opined, in pertinent part:

Id. at 1. Dr. Erwin Van Nieuwenhuyse agreed:

Id. at 2. Based on these comments, Reclamation determined that the impacts of the information provided were already covered in the existing EA and that no changes were warranted. Id. at 3.

On June 10, 2014, Plaintiffs' counsel again wrote Reclamation pointing to a second report by Mr. Cannon purporting to show that NDOI "grossly overestimates actual Delta outflow." Doc. 10, Ex. 2 at 3. Plaintiffs again asserted this report constituted new information requiring supplemental NEPA analysis. Id. Plaintiffs filed this lawsuit the next day, on June 11, 2014. Doc. 1.

IV. DISCUSSION

A. Likelihood of Success on the Merits.

1. Applicable Legal Standards.

a. NEPA.

"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). "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 does not explicitly provide for a private right of action. Therefore, claims alleging that a federal agency acted contrary to NEPA must be brought under and are governed by the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. See Morongo Band of Mission Indians v. F.A.A., 161 F.3d 569, 573 (9th Cir. 1998).

b. APA Deference Applied to Analyzing Likelihood of Success on the Merits in the Context of Injunctive Relief.

In assessing the likelihood of success on the merits in a case such as this, where all claims are governed by the APA, 5 U.S.C. § 701, et seq., the court applies the deferential arbitrary and capricious standard of review. Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917 (9th Cir. 2008). Under the APA, reviewing courts may reverse agency action only if it is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Courts should defer to the agency on matters within the agency's expertise unless the agency completely failed to address a factor that was essential to making an informed decision. Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 422 F.3d 782, 798 (9th Cir. 2005). A court "may not substitute its judgment for that of the agency concerning the wisdom or prudence of [the agency's] action." River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010). As the Ninth Circuit continued in River Runners:

Id. at 1070.

Reviewing courts must be at their "most deferential" when an agency makes predictions, "within its area of special expertise, at the frontiers of science." Baltimore Gas & Elec. Co. v. Natural Res. Defense Council, 462 U.S. 87, 103 (1983). In particular, an agency's "scientific methodology is owed substantial deference." See Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1066 (9th Cir. 2004). The deferential nature of a court's inquiry into the merits is not altered at the preliminary injunction stage. Ranchers Cattlemen Action Legal Fund v. U.S. Dep't of Agric., 415 F.3d 1078, 1093 (9th Cir. 2005) (finding that, in granting a preliminary injunction, "the district court committed legal error by failing to respect the agency's judgment and expertise").9

"The deference accorded an agency's scientific or technical expertise is not unlimited." Brower v. Evans, 257 F.3d 1058, 1067 (9th Cir. 2001). Deference is not owed if "the agency has completely failed to address some factor consideration of which was essential to making an informed decision," id., and courts are not required to defer to an agency conclusion that runs counter to that of other agencies or other individuals with specialized expertise in a particular technical area. See, e.g., Am. Tunaboat Ass'n v. Baldrige, 738 F.2d 1013, 1016-17 (9th Cir. 1984) (agency decision under the Marine Mammal Protection Act was not supported by substantial evidence because agency ignored data that was product of "many years' effort by trained research personnel").

2. Plaintiffs' Challenges to the Content of the EA.

Plaintiffs allege that Reclamation's Final EA and FONSI are arbitrary and capricious because both documents "incorrectly assume the fish are not present in the Delta in July and August" and that this assumption contradicts the 2008 BiOp's explanation of the LSZ and its connection to delta smelt distribution. Doc. 8 at 14-15.

a. Federal Defendants' Threshold Objections.

(1) Waiver.

Federal Defendants10 argue that Plaintiffs have waived this challenge to the EA/FONSI by failing to raise it during the administrative process. Doc. 33 at 13-14. The applicable 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 (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. Comments submitted by third parties may form the basis of a NEPA lawsuit, so long as the comments brought sufficient attention to the issue. Pac. Coast Fed'n of Fishermen's Associations v. U.S. Dep't of Interior, 2014 WL 496906, *10, ___ F. Supp. 2d ___ (E.D. Cal. Feb. 6, 2014).

AquAlliance, through counsel Thomas Lippe and Executive Director Barbara Vlamis, submitted comments on the EA. Federal Defendants correctly point out that Mr. Lippe's comments are exclusively focused on air quality impacts of the proposed transfers. See Allen Decl., Ex. 2 at 115-21, Doc. 133. However, as Federal Defendants acknowledge, Ms. Vlamis's comments referenced Thomas Cannon's 2013 analysis of the impacts of summer water transfers on delta smelt, stating:

Allen Decl., Ex 2 at 134 (emphasis added) (footnote omitted).

Federal Defendants do not in fact argue that this comment failed to give the agency enough notice of the challenge now before the Court. In fact, Federal Defendants admit they responded to the comment. See Doc. 33 at 5 (citing Allen Decl, Ex. 2 at 1165-67). What Federal Defendants do assert is that no commentator ever challenged the 2008 BiOp's premise that delta smelt are generally not in the Delta during the proposed transfer period. Id. at 5. This is technically true. Plaintiffs no not actually contradict the assertion that delta smelt are "generally" not in the Delta during the transfer period. But, Ms. Vlamis's letter clearly does assert that in dry years, such as this one, delta smelt are "stuck within the Delta and threatened by warm water." Allen Decl., Ex 2 at 134. The issue may not have been raised using "precise legal formulations" but it has not been waived. Plaintiffs claim will rise or fall on the merits in the form Plaintiffs give it.

(2) Federal Defendants' Argument that Plaintiffs' "Challenge to the BiOp Must Be Brought Pursuant to the ESA."

Federal Defendants second threshold objection is confusing but warrants some discussion. They assert:

Doc. 33 at 14. Reclamation relies upon the 2008 BiOp in its EA. Federal Defendants argue that if Plaintiffs wants to challenge the 2008 BiOp's characterization of delta smelt distribution during summer months, they must do so through a direct challenge to the 2008 BiOp under the ESA. Id. No ESA challenge has been presented in this lawsuit and FWS is not a party to this suit. Moreover, the substance of the 2008 BiOp has been upheld by the Ninth Circuit. See San Luis v. Jewell, 747 F.3d at 616-34.

It is unclear whether Federal Defendants imply by their argument that Plaintiffs' NEPA challenge is somehow faulty because Plaintiffs have not brought a simultaneous challenge to the BiOp. Federal Defendants do not cite and the Court cannot locate any authority for the proposition that a party cannot bring a NEPA challenge to a NEPA document simply because that NEPA document relies upon reasoning in an ESA document without simultaneously challenging that ESA document. As such, the lack of a parallel ESA challenge is not a procedural bar to Plaintiffs' NEPA suit. The extent to which Reclamation may rely upon the 2008 ESA BiOp to support its NEPA document is discussed below.

b. The Merits of Plaintiffs' EA Challenge.11

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 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 "[b]riefly provide sufficient evidence and analysis for determining whether to prepare an [EIS] or a [FONSI]." 40 C.F.R. § 1508.9(a)(1); see also Bob 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 EA "need not conform to all the requirements of an EIS, [but] it must be sufficient to establish the reasonableness of the decision not to prepare an EIS." Ctr. for Biological Diversity v. Nat'l Hwy. Traffic Safety Admin., 538 F.3d 1172, 1215 (9th Cir. 2008) (quotations and alteration omitted).

Tri-Valley CAREs v. U.S. Dep't of Energy, 671 F.3d 1113, 1129 (9th Cir. 2012). The EA must only "provide the public with sufficient environmental information, considered in the totality of the circumstances, to permit members of the public to weigh in with their views and thus inform the agency decision-making process." Native Ecosystems Council v. Weldon, 697 F.3d 1043, 1053 (9th Cir. 2012) (internal citation and quotation omitted). A court must "defer to agency decisions so long as those conclusions are supported by studies [] the agency deems reliable." Id. (internal citation and quotation omitted).

Here, Plaintiffs take issue with the EA's assumption that "[s]pecial status fish species," such as the delta smelt, "are generally not in the Delta during the transfer period." There is nothing inaccurate, per se, about this statement. The 2008 BiOp concurs that delta smelt are "rarely" in the Delta during the transfer period. 2008 BiOp at 229. What Plaintiffs really protest is the fact that the EA assumes that this general statement applies in this uniquely dry year, during which Plaintiffs maintain delta smelt in fact will be present in the Delta. Plaintiffs maintain that the Bureau's EA is insufficient because it fails to acknowledge this fact and therefore fails to acknowledge potentially significant impacts that will result from the smelt being present in the Delta. Specifically, Plaintiffs' comments on the Draft EA suggest that in dry years the smelt will be "stuck within the Delta and threatened by warm water."12

The EA first addresses impacts on "special status species" like the delta smelt in its explanation of conditions that will persist in the absence of the 2014 Transfer Project under the "No Action Alternative":

Final EA at 3-12. The Final EA then addresses, generally, the impact of the proposed transfers on special status species:

Id. at 3-13. The Final EA also addresses Plaintiffs' specific comment as follows:

Allen Decl, Ex. 2 at 175.

Although the reasoning in the EA itself is brief and summary in nature, it is permissible for Reclamation to incorporate by reference the reasoning contained the 2008 BiOp, an ESA document. See Nw. Envtl. Def. Ctr. v. Nat'l Marine Fisheries Serv., 647 F.Supp.2d 1221, 1247 (D. Or. 2009). As mentioned above, the 2008 BiOp discussed the potential effects of transferring up to 600,000 AF of water in "critical" and "dry" years, and anticipated that transfers would be limited to the months of July through September, when "delta smelt are rarely present in the Delta[.]" 2008 BiOp at 229. The 2008 BiOp also indicates "the location of the delta smelt population follows changes in the location of the LSZ." Id. at 147. Plaintiffs assert that these two assertions are inherently inconsistent because: (1) the LSZ is drawn into the Delta during low flow periods; and (2) if the delta smelt follow the LSZ, they too must be drawn into the Delta during low flow periods, where they will be exposed to, among other things, lethal temperature conditions.

As to the first of these assertions, the report by Tom Cannon referenced in Plaintiffs' comments on the Draft EA opines that in low flow conditions observed in 2013, the LSZ was drawn into the Delta in mid to late July. First Declaration of Tom Cannon ("First Cannon Decl."), Doc. 9, Ex. 2, at 17. Federal Defendants do not appear to dispute this assertion. See Doc. 33 at 16, 20 (citing Allen Decl., Ex. 9 for the proposition that D-164 may shift X2 eastward, which could shift the center of the LSZ).13

The second of Plaintiffs' assertions is disputed. Cannon insists that the smelt will move with the LSZ into the Delta. For example, although his report acknowledges that, at least in 2013, no smelt were salvaged in July (i.e., no smelt were collected at the pumping plants' fish screens), Cannon opines that this is because "[n]o smelt were able to survive passage to the South Delta export salvage facilities because of lethal water temperatures in the Central and South Delta." First Cannon Decl, Ex. 2 at 17-18. In contrast, the 2008 BiOp concludes that the delta smelt population simply does not follow the LSZ into the Central and South Delta during the transfer period. Among the five RPA components included in the 2008 BiOp, Components 1 and 2 limit OMR reverse in order to "to reduce entrainment of pre-spawning adult delta smelt during December to March by controlling OMR flows during vulnerable periods" and "improve flow conditions in the Central and South Delta so that larval and juvenile delta smelt can successfully rear in the Central Delta and move downstream[,]" respectively. 2008 BiOp at 282. The RPA does not limit reverse flows between July and September, id. 280-85, in part because smelt are not thought to be able to transit that part of the Delta in the summer because the temperatures are too high. 2008 BiOp at 151 ("warmer temperatures >25°C restrict distribution more than colder water temperatures"), 358 (setting temperature "offramp" for spring OMR restrictions), 364 ("As temperatures rise, trawl data continue to show no fish in the Central and South Delta, and salvage does not occur, OMR flows will be allowed to become as negative as -5,000 cfs. When temperature rises and turbidity drops to levels likely to be inimical to delta smelt (> 25°C, turbidity <12 NTU), no further restrictions are needed as long as salvage remains at or close to zero."). FWS reaffirmed this reasoning in its April 21, 2014 concurrence memorandum, which found the effects of the 2014 Transfer Project were encompassed by the analysis in the 2008 BiOp and concluded that no additional adverse effects to delta smelt or designated critical habitat were anticipated to occur. See Allen Decl., Ex. 6 at 2.14

This amounts to a dispute between Plaintiffs' chosen expert, Tom Cannon, and FWS, the agency with relevant expertise in the impacts of water project operation on the delta smelt.15 In such a circumstance, the court must defer to the expert agency's determinations. For example, in Greenpeace Action v. Franklin, 14 F.3d 1324, 1333 (9th Cir. 1992), the National Marine Fisheries Service ("NMFS") approved a plan to regulate fishing in an area populated by the Stellar sea lion. While Greenpeace's evidence demonstrated that there was uncertainty as to how the fishing would affect the sea lion and that NMFS did not prove harm to the sea lion was impossible, the Ninth Circuit refused to set aside NMFS's decision because to do so would require the Court to decide that the views of Greenpeace's experts have more merit than those of NMFS. Id. at 1333. In Greenpeace, the Ninth Circuit relied upon Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976 (9th Cir. 1985), which upheld a decision by FWS not to prepare an EIS in connection with the issuance of a permit allowing some development in an area occupied by and endangered butterfly species. In response to plaintiff's argument that FWS based its decision on faulty data, the Ninth Circuit held that "NEPA does not require that we decide whether an [environmental assessment] is based on the best scientific methodology available, nor does NEPA require us to resolve disagreements among various scientists as to methodology." Id. at 986.

Greenpeace and a long line of cases, including San Luis v. Jewell, 747 F.3d 581, emphasize that a court should defer to agency experts. A court "may not substitute its judgment for that of the agency concerning the wisdom or prudence of [the agency's] action." River Runners, 593 F.3d at 1070.

Id. at 1070. A court must "defer to agency decisions so long as those conclusions are supported by studies [] the agency deems reliable." Native Ecosystems, 697 F.3d at 1053 (internal citation and quotation omitted).

Here, as described above, FWS has determined in the 2008 BiOp that delta smelt do not follow the LSZ into the interior Delta during the transfer period. The 2008 BiOp has been subject to extensive scrutiny and ultimately was upheld by the Ninth Circuit. The Court must defer to FWS's opinion in the 2008 BiOp. The Court expresses no opinion as to the relative strength of Tom Cannon's theory that smelt do not pass through areas of high temperature to the salvage facilities (one place where they can be counted) because they are killed along the way. The Court only finds that the expert agency disagrees with Cannon's theory and that the Court must defer to the agency.

Yet, the 2008 BiOp is an ESA, not a NEPA, document. As Plaintiffs point out, NEPA and the ESA have different standards: an EIS is required under NEPA "where there are substantial questions about whether a project may cause significant degradation of the human environment," while the ESA requires evaluation of whether a project will "jeopardize the continued existence of" a listed species or "adversely modify" that species' critical habitat. See Doc. 65 at 3-4.

Nw. Envtl. Def. Ctr., 647 F. Supp. 2d at 1247. (internal citations and quotations omitted). Nevertheless, an ESA document can be helpful in determining whether the degree of impact to a species will be significant under NEPA. See Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1012 (9th Cir. 2006) (approving of EA that relied upon FWS "no jeopardy" BiOp regarding northern spotted owl to conclude that "[w]hile the Selected Alternative may affect habitat and has the potential to affect individual northern spotted owls, it will not be significant under [NEPA]."). Here, Reclamation is relying on the 2008 BiOp for the general proposition that during the transfer period, even if the LSZ is drawn into an area where temperatures are dangerously high, delta smelt do not follow the LSZ under such circumstances. Moreover, Reclamation relied on FWS's April 21, 2014 concurrence determination regarding the 2014 Transfer project, in which FWS concluded no additional adverse effects to delta smelt or designated critical habitat, or increased incidental take as a result of the 2014 transfers were anticipated to occur. See Allen Decl., Ex. 6 at 2. If the 2014 Transfer Project will not cause any "additional adverse effects," the Court cannot fathom how it could cause a "significant" impact, nor how there could be "substantial questions" regarding the presence of a significant impact. This conclusion is bolstered by the further conclusion in the EA that "[w]ater transfers are a small portion of total Project deliveries during the summer months." Allen Decl., Ex. 2 at 175. Moreover, the Cannon report relied on by Plaintiffs in their comments upon the Draft EA makes absolutely no specific mention of water transfers, thereby failing to address the relative contribution of water transfers to the conditions Cannon observed in 2013.

Plaintiffs argue that the EA should be rejected because it failed to provide the public with the information necessary to review and comment on the 2014 Transfer Project. An EA 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." 40 C.F.R. § 1508.9(a)(1). An EA must provide the public with sufficient environmental information, considered in the totality of circumstances, to permit members of the public to weigh in with their views and thus inform the agency decision-making process. Bering Strait Citizens for Responsible Res. Dev. v. U.S. Army Corps of Engineers, 524 F.3d 938, 953 (9th Cir. 2008). An EA is "unacceptable" if it is "indecipherable to the public." Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 996 (9th Cir. 2004). As noted above, standing alone, the EA does not provide enough detail to the public regarding impacts to the smelt. However, the EA appropriately incorporated by reference the 2008 BiOp, which contains sufficient support for the EA's conclusions that the 2014 Transfer Project will not have significant impacts on the smelt.

Plaintiffs make much of the fact that some of the assumptions that underpinned the 2008 BiOp have changed. Among other things, the SWRCB's TUC Orders relaxed D-1641 water quality standards in light of the current drought. But, the Bureau sought the opinion of FWS on the impacts to smelt of every D-1641 modification. In each case, FWS concurred that none of these changes will cause "additional adverse effects on delta smelt" beyond that which was evaluated in the 2008 BiOp. Although these further consultations are not explicitly mentioned in the EA, the EA does note that "[b]ecause of the extremely dry conditions, Reclamation is consulting frequently with [FWS] on CVP and SWP operations relative to the [2008 BiOp] and special status fish species in the Delta" and indicates that the "current operational parameters applicable to conveyance of transfer water include. . . . the [SWRCB TUC] Petition approved on January 31, 2014, as may be amended." Final EA at 2-4. Documents pertaining to Reclamation's consultations with FWS about the TUC Order are publicly available on Reclamation's website.16 Therefore, the Final EA references publicly available documentation of FWS's conclusions that additional changes to the operational parameters would not cause any additional harm to the smelt.

An EA may be invalidated where it "fails to address certain crucial factors, consideration of which is essential to a truly informed decision whether or not to prepare an EIS." In Def. of Animals, Dreamcatcher Wild Horse & Burro Sanctuary v. U.S. Dep't of Interior, 751 F.3d 1054, 1072 (9th Cir. 2014). But this is not a circumstance in which the agency has failed to consider a crucial factor. In Foundation for the North American Wild Sheep v. U.S. Department of Agriculture ("USDA"), 681 F.2d 1172, 1174-75, 1178-80 (9th Cir. 1982), the USDA issued an EA approving the reconstruction of two mining access roads through an area occupied by one of the few remaining herds of desert bighorn sheep. Among other things, the EA failed to estimate the amount of traffic expected on the road or consider the fact that the road passed close to a "mineral lick" used by the bighorn. Id. at 1178-79. "The absence of this crucial information render[ed] a decision regarding the sheep's reaction to the traffic on [the road] . . . is necessarily uninformed." Id. at 1181.

Here, Plaintiffs contend that the EA failed to examine a "crucial factor" in that it failed to consider that smelt were likely to be drawn into areas of the Delta where high temperatures could cause them adverse harm. As discussed above, the EA, by incorporating the 2008 BiOp, did in fact address this issue and disagreed with Plaintiffs' contention. The EA could have made its reliance on the 2008 BiOp for this point more explicit and clear, but NEPA does not require perfection. The Final EA was intelligible on the subject and did not fail to examine a "crucial factor." Moreover, while the EA could have been improved, its discussion was not so insufficient as to "frustrate NEPA's goal of ensuring that relevant information is available to the wider audience participating in agency decision-making." Laguna Greenbelt, Inc. v. U.S. Dep't of Transp., 42 F.3d 517, 527 (9th Cir. 1994).

3. Plaintiffs' Demand for a Supplemental EA.

Plaintiffs also argue that Reclamation acted unlawfully by refusing to supplement the EA and FONSI in light of (1) the SWRCB's May 2, 2014 TUC Order relaxing Delta water quality standards; and (2) an analysis performed by Tom Cannon and presented to Reclamation in a June 10, 2014 letter that purports to demonstrate that the methodology used by the Bureau to measure Delta outflow (a key component to estimating where the LSZ will be and how much export pumping is permissible) grossly overestimates actual delta outflow.

a. Applicable Legal Standard.

Agencies are required to supplement an existing EA only where there are "substantial changes to the proposed action" or "significant new circumstances or information" relevant to environmental concerns. 40 C.F.R. § 1502.9(c)(1)(i)-(ii); Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 372 (1989).

Greer Coal., Inc. v. U.S. Forest Serv., 470 F. App'x 630, 633-34 (9th Cir. 2012).

"[A]n agency need not supplement an EIS every time new information comes to light after the EIS is finalized" because to so hold "would render agency decisionmaking intractable, always awaiting updated information only to find the new information outdated by the time a decision is made." Marsh, 490 U.S. at 373. Rather, the agency must apply a "rule of reason" that looks to "the value of the new information to the still pending decisionmaking process." Id. at 374. To trigger a supplemental EIS, the changes or new information must present "a seriously different picture of the likely environmental harms stemming from the proposed action." Airport Communities Coal. v. Graves, 280 F.Supp.2d 1207, 1218 (W.D. Wash. 2003) (quoting Wisconsin v. Weinberger, 745 F.2d 412, 420 (7th Cir. 1984)). Moreover, an agency's decision not to prepare a supplemental EIS will not be overturned absent a "clear error of judgment." Marsh, 490 U.S. at 377-78 (internal citation and quotation omitted).

b. The SWRCB's May 2 TUC Order.

The May 2, 2014 TUC Order was just one in a line of TUC Orders issued this year, making incremental changes to the D-1641 standards. Reclamation consulted with FWS every time any such changes were proposed. On May 1, after some back and forth between the agencies, FWS issued a concurrence memorandum, indicating that the proposed changes to D-1641 would not cause any additional adverse effects on delta smelt or critical habitat. In light of the Court's conclusions on the merits of Plaintiffs' challenge to the EA, this Concurrence eliminates the possibility that the May 2, 2014 TUC Order presents "a seriously different picture of the likely environmental harms stemming from the proposed action."

c. Tom Cannon's Analysis of the Method Used to Measure Delta Outflow.

Plaintiffs also offer an analysis prepared by Tom Cannon on or about June 9, 2014, which compares the Net Delta Outflow Index ("NDOI"), the methodology prescribed by the SWRCB to measure Delta outflow for regulatory purposes, against US Geological Survey measurements of actual Net Delta Outflow ("NDO"). Doc. 10, Ex. 6. After comparing NDOI against NDO for July 2013 and May 2014, Cannon concluded that NDOI "grossly overestimates" Delta outflow. Id. For example, while the NDOI estimated outflow at 3505 cfs in May 2014, USGS flow data indicates actual outflow was -45 cfs. Id.

Federal Defendants argue that this is not new information because SWRCB has been using NDOI to regulate Delta flows for 14 years and Plaintiffs had access to information (shown by the fact that Cannon's comparison used 2013 data) from which he could have made his comparisons well before the EA comment deadline passed. See Stop H-3 Ass'n v. Dole, 740 F.2d 1442, 1464 (9th Cir. 1984) (holding plaintiffs' supplementation claim had "little merit" when the information they alleged was "new" was in fact available prior to the release of the NEPA document).

Cannon maintains that the discrepancy between NDOI and NDO is an "emerging concern" in the field. In his reply declaration, he indicates that the issue was discussed at a May 5, 2014 workshop of the Delta Stewardship Council, which produced the following report/summary:

Reply Declaration of Tom Cannon, Doc. 62, at ¶ 22. Cannon then declares that "[a]fter learning of this developing issue, I ran the numbers for May of 2014 (this data [ ] was not available before the Bureau's April 22, 2014 FONSI), and found strong confirmation that NDOI seriously overestimates actual Delta outflow as measured by NDO in the currently very dry conditions." Id. at ¶ 23. But, the report above indicates that these concerns are not at all new, citing 20-year old report. The fact that Cannon was not aware of the issue until after the May 5, 2014 workshop does not make it new information.

Moreover, as the quotation from the Delta Stewardship Council workshop indicates, there are reasons why NDOI is used over NDO. Among other things, the extreme changes in flow direction at the four NDO measuring points due to tidal shifts (300,000-400,000 cfs per day) magnifies gauge errors, while the NDOI metric is considered more reliable and reproducible. Moreover, the SWRCB mandates that Reclamation use NDOI when complying with D-1641. An agency is afforded considerable discretion in its choice of methodology in such circumstances. See San Luis v. Jewell, 747 F.3d at 618-19, 626-27 (reversing several instances in which the district court found the agency utilized an inappropriate measuring/calculating methodology, including one instance in which the methodological choice was thought to have potentially overestimated the movement of X2).

B. Conclusion Re: Likelihood of Success on the Merits.

The Court concludes that Plaintiffs are not likely to succeed on either of the NEPA claims discussed above. Nor do Plaintiffs' arguments present "serious questions" going to the merits, as such questions are those that are "substantial, difficult, and doubtful, as to make them a fair ground for litigation and thus for more deliberative investigation." Marcos, 862 F.2d at 1362. "Serious questions" do not need to "promise a certainty of success, nor even present a probability of success, but must involve a fair chance of success on the merits." Id. (citation and internal quotation marks omitted). Even with respect to the challenge to the content of the EA, Plaintiffs do not present a "fair chance of success on the merits" because their dispute boils down to a disagreement with an expert agency as to the likelihood that the 2014 Transfer Project will draw smelt into areas of the Delta where they will be subject to dangerously high temperatures. This Court must defer to the agency on such matters. It is therefore unnecessary to discuss the presented evidence pertaining to the balance of the harms.

V. CONCLUSION AND ORDER

For the reasons set forth above, Plaintiffs' motion for preliminary injunction is DENIED.

IT IS SO ORDERED.