PRATT, District Judge:
This case concerns Defendant-Appellee U.S. Fish and Wildlife Service's ("FWS") decision to enter into a Memorandum of Agreement ("MOA") with several non-federal entities who were subject to a Nevada State Order mandating a groundwater pump test. FWS anticipated that the pump test may affect an endangered species, the Moapa dace, and worked with the parties to obtain an agreement to implement a variety of conservation measures in advance of the groundwater pump test. FWS conducted a formal consultation under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., and determined in a Biological Opinion ("Biop") that FWS's execution of the MOA would not jeopardize the Moapa dace. Plaintiff-Appellant Center for Biological Diversity ("CBD") challenged the Biop and the district court granted summary judgment in favor of FWS and Intervenors-Defendants-Appellees Southern Nevada Water Authority ("SNWA") and Coyote Springs Investment, LLC ("CSI").
In this opinion, we resolve a challenge by FWS and Intervenors to CBD's standing. Because we conclude that CBD does have standing, we also resolve CBD's claims that the Biop was arbitrary and capricious because: (1) it unlawfully relies on conservation measures that are inadequate and unenforceable; (2) it was not based on the best available scientific information; and (3) it failed to evaluate all
The ESA "is a comprehensive scheme with the broad purpose of protecting endangered and threatened species." Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d 1101, 1106 (9th Cir.2012) (hereinafter "BLM") (citation and internal quotation marks omitted). This case centers on two provisions central to the ESA's protections: section 9, which imposes a blanket prohibition on the "take" of any endangered species,
Section 7(a)(2) of the ESA requires every federal agency to "insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence
During formal consultation, the FWS is obligated to use the "best scientific and commercial data available," 16 U.S.C. § 1536(a)(2), to "evaluate[] the effects of the proposed action on the survival of [the] species and any potential destruction or adverse modification of critical habitat." Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917, 924 (9th Cir. 2008) (citing 16 U.S.C. § 1536(b)). At the
The Moapa dace is a small, thermophilic fish found only in the Muddy River, and particularly in the warmer waters of the upper springs and tributaries of the Warm Springs area in Southeastern Nevada. Biop at 14-15. Reproduction occurs year-round and is confined to the upper, spring-fed tributaries where water temperatures vary from 84.2 to 89.9 degrees Fahrenheit. Id. at 15. Juveniles are found almost exclusively in the spring-fed tributaries, whereas adults, who have the greatest tolerance to cooler water temperatures, are also found in the mainstream of the Muddy River. Id.
The Moapa dace, a member of the North American minnow family, Cyprinidae, was listed as endangered under the Endangered Species Preservation Act of 1966 on March 11, 1967, and has been protected by the ESA since its inception in 1973. Native Fish & Wildlife, 32 Fed.Reg. 4001. Though critical habitat has not been designated for the species, FWS has assigned the Moapa dace the highest recovery priority because it is the only species in the genus Moapa, there is high degree of threat to its continued existence, and there is a high potential for its recovery. Biop at 14. Primary threats to the dace include non-native fishes, parasites, habitat loss from water diversions and impoundments, fire due to encroaching non-native plant species, and reductions to surface spring-flows resulting from groundwater development, which reduces spawning, nursery habitats, and the food base for the dace. Id. at 15.
In 1979, 106 acres of springs and wetlands located in the Warm Springs Area of the Upper Moapa Valley were designated as the Moapa Valley National Wildlife Refuge ("MVNWR") for the protection of the endangered Moapa dace. Id. at 17-18. The thermal headwaters of the springs on the MVNWR are some of the most productive Moapa dace spawning habitat in the area. Id. at 18. The MVNWR consists of three units encompassing the major spring groups: the Pedersen Unit, the Plummer Unit, and the Apcar Unit (also known as Jones Spring). Id. In 2005, it was estimated that throughout the approximately 5.6 miles of habitat in the upper Muddy River system, the population of dace was about 1,300. Id. at 24. Approximately 95% of this total population occurs within one major tributary that includes 1.78 miles of spring complexes that emanate from the three major spring groups and their tributaries. Id. About 28 percent of the Moapa dace population was located on the MVNWR, while approximately 55 percent occupied the Refuge Stream, which is supplied
CBD is a non-profit corporation actively involved in species and habitat protection issues throughout North America and the Pacific. Its members and staff live, work, visit, and recreate in areas of Nevada that serve as Moapa dace habitat.
FWS is a federal agency that is part of the Department of the Interior. Its responsibilities include implementing the ESA and administering the National Wildlife Refuge System. Pursuant to Permit No. 56668, FWS owns a Nevada State water right certificate (the "FWS Water Right") for a flow rate of not less than 3.5 cubic feet per second ("cfs") as measured at the Warm Springs West flume for maintenance of the habitat of the Moapa dace and other wildlife purposes. The priority date for the FWS water right is August 15, 1991.
Several entities own permitted water rights with appropriation priorities senior to the FWS Water Right. SNWA is a political subdivision of the State of Nevada, which owns 9,000 acre feet per year ("afy")
On March 8, 2002, the Nevada state engineer issued Order 1169, which held in abeyance all applications for additional groundwater appropriation from Coyote Spring Valley pending a study of the impacts of pumping groundwater pursuant to already-existing water rights. In particular, the state engineer ordered that several entities owning water rights in the area, including SNWA, CSI, and the Moapa Valley Water District ("MVWD"),
Prior to and after the issuance of Order 1169, FWS was concerned that groundwater pumping in Arrow Canyon (by MVWD), in the Coyote Springs Valley hydrographic basin (by SNWA and CSI), and in the California Wash hydrographic basin (by the Tribe), was causing or would cause spring flows to decline in the Warm Springs area, creating potentially negative effects for the Moapa dace. In 2004, FWS began meeting with the various water-rights holders to identify conservation measures to aid Moapa dace survival in light of the anticipated pump test. On April 20, 2006, FWS, SNWA, CSI, MVWD, and the Tribe executed the MOA at issue in this case, based on their "share[d] common interest in the conservation and recovery of the Moapa dace and its habitat," as well as in each signatory's right to the "use and enjoyment of its water rights and entitlements." In furtherance of this common interest, the MOA contains a variety of "monitoring, management and conservation measures," which can loosely be grouped into two categories — measures designed to reduce pumping and dedicate water rights for Moapa dace conservation and measures designed to restore and improve Moapa dace habitat.
In the first category of conservation measures, the MOA signatories agreed that: (1) MVWD's Jones Water Right will be dedicated to maintaining in-stream flows in the Apcar Stream; (2) 460 afy of the CSI Water Rights, plus 5% of any future water rights obtained by CSI, will be dedicated to the survival and recovery of the Moapa dace and its habitat; and (3) pumping would be slowed or ceased at various sites if water flow, as measured at the Warm Springs West flume, fell below certain "Trigger Ranges." In the second category of conservation measures, the MOA signatories agreed to provide funding for Moapa dace habitat restoration and recovery measures, including $750,000 from SNWA to restore Moapa dace habitat on the Apcar Unit; $125,000 from both FWS and SNWA to investigate effects of habitat change on the ecology of the Moapa dace; $50,000 from SNWA to construct fish barriers to help eliminate predatory fish from Moapa dace habitat; $25,000 from SNWA to implement programs to eradicate non-native fish in the Warm Springs area; and $50,000 per year for four years from CSI to FWS for restoration of Moapa dace habitat outside the boundaries of the MVNWR. The parties additionally agreed: (1) to establish a Recovery Implementation Program ("RIP") to identify, prioritize, and fund measures designed to protect the Moapa dace and facilitate its recovery; (2) to establish a Hydrologic Review Team to coordinate
The MOA provides that the "Parties desire that FWS engage in consultation and prepare a formal biological opinion" under ESA § 7 prior to execution of the MOA. Although the MOA neither authorizes nor approves any groundwater pumping, it nonetheless states that FWS's consultation "shall consider the effects on the Moapa dace from the pumping of 9,000 afy under the SHWA Water Rights, 4,600 afy under the CSI Water Rights, and 2,500 afy by the Tribe . . . together with the implementation of the monitoring, management and conservation measures" identified in the MOA.
On January 30, 2006, FWS issued a document entitled "Intra-Service Programmatic Biop for the Proposed Muddy River Memorandum of Agreement Regarding the Groundwater Withdrawal of 16,100 Acre-Feet per Year from the Regional Carbonate Aquifer in Coyote Spring Valley and California Wash Basins, and Establish Conservation Measures for the Moapa Dace, Clark County, Nevada" (the "Biop"). The Biop provides:
Biop at 1.
Due to "the number of impending actions by different entities included in the proposed action," FWS employed a tiered-programmatic approach in preparing its Biop. Id. at 2. Thus, the required consultation was intended to take place in two stages: the first stage (the January 30, 2006 Biop) would "evaluate landscape-level effects," while a series of later second-stage Biops would "result[] in the completion of project-specific documentation that addresses the specific effects of each individual project." Id. at 2-3. Under this approach, second-stage consultations performed for specific action items in the MOA would "tier" to the first-stage document by incorporating portions of it by reference. Id. at 3 ("Thus each action has
Consistent with its stated approach, the Biop analyzes anticipated effects on the Moapa dace from the cumulative withdrawal of 16,100 afy from the Coyote Spring Valley and the California Wash, finding that the "Moapa dace will be directly affected by the proposed groundwater withdrawals since those actions are likely to affect the spring flows upon which the dace depends." Id. at 44-55. Among other things, the Biop opines that, if inflow at the Warm Springs gauge drops to 2.7 cfs due to groundwater pumping, the result could be 31% loss of spawning habitat at the important Pedersen Unit, though "much of the available spawning habitat on the Plummer and Apcar Units, and the Refuge Stream would not be as affected by groundwater pumping since they are lower in elevation and would continue to provide adequate spawning habitat." Id. at 54-55. Additionally, reductions in temperature from loss of flow in the Pedersen Unit could also extend downstream and "further impact Moapa dace by restricting its reproductive potential and make it more vulnerable to catastrophic events such as wildfire." Id.
The Biop next analyzes the anticipated effectiveness of the conservation measures in the MOA, noting that such measures "include the removal of non-native fishes, enhancing, and restoring habitat and restoring instream flows (Apcar Unit) to increase the amount of habitat available for use by all life stages of the species." Id. at 55. The Biop predicts that the MOA's conservation measures will, among other things, "increase thermal habitat and the reproductive potential of the species in the Apcar and Refuge streams," "reduce potential for fire and restore the overall spawning and rearing habitat sufficient to sustain several hundred Moapa dace on the Apcar Unit of the MVNWR," "provide more secure habitat should water flows decline from groundwater development activities in the future," "improve habitat throughout the range of the species," "reduce the species vulnerability to catastrophic events," and "expan[d] the species within its range and increase its current population size." Id. at 59-60; see also id. at 56 ("The overall expected outcome of these measures is an increase in the species distribution and abundance throughout the range of the species."). The Biop explains that since the MOA provides that most of the conservation measures would be implemented before significant groundwater pumping was to occur, the Moapa dace population would likely "respond positively, increasing in its distribution and abundance above current conditions. Therefore, the conservation benefits to the species would be realized prior to and would off-set the effect of groundwater development." Id. at 126, 130.
In conclusion, the Biop states as follows: "It is [FWS's] biological opinion that [FWS] becoming signatory to the MOA, as proposed and analyzed, is not likely to jeopardize the continued existence of the endangered Moapa dace." Id. at 61. Regarding an Incidental Take Statement ("ITS"), the Biop provides:
Id. at 62.
On August 23, 2010, CBD filed a Complaint for Declaratory and Injunctive relief against FWS and Sally Jewell,
CBD appeals only the district court's grant of summary judgment on its ESA claim. In particular, CBD maintains that FWS's Biop violated § 7 of the ESA by: (1) failing to ensure against jeopardizing the continued existence of the Moapa dace; (2) failing to consider the best available scientific information; and (3) failing to evaluate all consequences of the action it purports to review.
The district court's grant of summary judgment is reviewed de novo. Pac. Coast Fed'n of Fishermen's Ass'ns. v. U.S. Bureau of Reclamation, 426 F.3d 1082, 1090 (9th Cir.2005). A Biop is a final agency action within the meaning of the Administrative Procedure Act ("APA") and is reviewed under § 706 of the APA. Bennett v. Spear, 520 U.S. 154, 178-79, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Section 706(2)(A) of the APA requires a reviewing court to uphold agency action unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). An agency action is arbitrary and capricious if the agency has:
Pac. Coast Fed'n of Fishermen's Ass'ns, Inc. v. Nat'l Marine Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir.2001) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). Under this standard, factual determinations must be supported by substantial evidence. Dickinson v. Zurko, 527 U.S. 150, 162, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999). An agency action will be sustained if "the agency has articulated a rational connection between the facts found and the conclusions made." Pac. Coast Fed'n of Fishermen's Ass'ns, 426 F.3d at 1090.
The arbitrary or capricious standard is a "highly deferential" standard of review, though our inquiry must nonetheless "be searching and careful." Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); Jewell, 747 F.3d at 601. The agency's decision, however, is "`entitled to a presumption of regularity,' and we may not substitute our judgment for that of the agency." Id. (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). This traditional deference to the agency is at its highest where a court is reviewing an agency action that required a high level of technical expertise. Marsh, 490 U.S. at 377, 109 S.Ct. 1851.
FWS, SHWA, and CSI challenge our jurisdiction to hear the present appeal, arguing that CBD lacks standing. As the plaintiff in the underlying action, CBD has the burden of proving the existence of Article III standing at all stages of the litigation. See Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 255, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994). To fulfill this obligation, CBD must demonstrate: (1) the existence of an injury-in-fact that is concrete and particularized, and actual or imminent; (2) the injury is fairly traceable to the challenged conduct; and (3) the injury is likely to be redressed by a favorable court decision. Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1224-25 (9th Cir.2008) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).
To satisfy the injury-in-fact requirement of Article III, "`a plaintiff asserting a procedural injury must show that the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing.'" Salmon Spawning, 545 F.3d at 1225 (quoting Citizens for Better Forestry v. U.S. Dep't of Agric., 341 F.3d 961, 969 (9th Cir.2003)). Here, CBD alleges that its members have scientific, aesthetic, personal, spiritual and work-related interests in the continued survival of the Moapa dace and other species with habitats in the MVNWR. They are concerned that if the Moapa dace population is imperiled or permitted to decline, these interests will be harmed. We have previously held that the consultation procedures of ESA § 7 are designed to protect "concrete interests" such as those asserted by CBD by "advanc[ing] the ESA's overall goal of species preservation, and thus the groups' specific goals as to [species] preservation, by ensuring agency compliance with the ESA's substantive provisions." Salmon Spawning,
While appellees do not dispute that CBD has alleged an injury-in-fact, they argue that causation and redressability are lacking. Specifically, appellees assert that any threat to the Moapa dace's survival is caused exclusively by non-federal entities pumping groundwater pursuant to a non-federal pump test order, not by the conservation measures in the MOA, which were designed to protect the species. As to redressability, appellees claim that CBD's injury is not redressable because the pump test, and its correspondent negative effects on the Moapa dace, could continue unabated even if the Biop and MOA were vacated.
"A showing of procedural injury lessens a plaintiff's burden on the last two prongs of the Article III standing inquiry, causation and redressibility." Salmon Spawning, 545 F.3d at 1226 (citing Lujan, 504 U.S. at 572 n. 7, 112 S.Ct. 2130). Thus, because CBD is asserting a procedural injury, it "`must show only that [it has] a procedural right that, if exercised, could protect [its] concrete interests.'" Id. (emphasis in original) (quoting Defenders of Wildlife v. U.S. EPA, 420 F.3d 946, 957 (9th Cir.2005)). "Plaintiffs alleging procedural injury can often establish redressibility with little difficulty, because they need to show only that the relief requested—that the agency follow the correct procedures—may influence the agency's ultimate decision of whether to take or refrain from taking a certain action. This is not a high bar to meet." Id. at 1226-27 (internal citation omitted). Nonetheless, "the redressibility requirement is not toothless in procedural injury cases." Id. at 1227.
While we agree that state-ordered groundwater pumping is an ultimate cause of CBD's injury, CBD more broadly claims that a legally deficient Biop caused FWS to execute an MOA that contained inadequate conservation, monitoring, and mitigation measures to ensure the continued existence of the Moapa dace in the face of such groundwater pumping. CBD contends its injury is redressable because if the Biop and MOA are vacated, FWS would be obligated to reinitiate consultation. According to CBD, this consultation, if conducted in compliance with the ESA § 7 procedures here challenged, "may influence [FWS's] ultimate decision as to whether to participate in the MOA," and on what terms. Moreover, CBD contends that the MOA federalizes groundwater withdrawals by non-federal parties and that those withdrawals harm the Moapa dace and its members' interests in the species. We agree with CBD that it has sufficiently demonstrated standing under these circumstances. See Natural Res. Def. Council v. Jewell, 749 F.3d 776, 783 (9th Cir.2014) (en banc) ("Because Plaintiffs allege a procedural violation under Section 7 of the ESA, they need only show that, if the Bureau engages in adequate consultation, the DMC Contracts could better protect Plaintiffs' concrete interest in the delta smelt than the contracts do currently."); Alliance for the Wild Rockies v. U.S. Dep't of Agric., 772 F.3d 592, 598-99 (9th Cir.2014) (concluding that an environmental group had standing to challenge federal agencies' approval of non-federal helicopter flights that might harass Yellowstone grizzly bears).
CBD contends that the MOA fails to ensure against jeopardy to the Moapa
In BLM, we held that the ESA's statutory scheme requires that "a conservation agreement entered into by the action agency to mitigate the impact of a contemplated action on listed species must be enforceable under the ESA" to factor into a biological opinion's jeopardy determination. BLM, 698 F.3d at 1117. In that case, Ruby Pipeline L.L.C. ("Ruby") sought a right-of-way to build a gas pipeline that would cross several thousand acres of federal land supporting numerous endangered and threatened fish species. Id. at 1106. FWS's analysis of the pipeline project determined it would adversely affect multiple endangered species and critical habitats. Id. FWS then evaluated "several `voluntary' conservation actions Ruby had indicated it would facilitate implementing," which were contained in a Conservation Action Plan (the "CAP measures"). Id. at 1109. Although the CAP measures contained no binding time line for implementation and were expressly not incorporated into the pipeline project plan,
We concluded that the CAP measures were not cumulative effects; instead, they were "unequivocally interrelated" to the pipeline project "in that the promises regarding the conservation measures were dependant on approval of the project." Id. at 1118. In fact, the CAP measures "fit squarely within the definition of `conservation measures' in the ESA Handbook." Id. at 1118. Since interrelated actions are, by definition, part of the "effects of the action," we set aside the biological opinion as arbitrary and capricious:
Id. at 1116, 1119.
The present case is plainly distinguishable from BLM. Here, the conservation measures in the MOA are not only "included as part of the project" consulted upon; they actually are the project consulted upon. Indeed, pursuant to the ESA regulations, the only activity reviewed in the Biop that even arguably qualifies as an "action" is FWS becoming signatory to the MOA. See 50 C.F.R. § 402.02 ("Action means all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States. . . . Examples include, but are not limited to: (a) actions intended to conserve listed species or their habitat."). Moreover, the Biop expressly provides that "reinitiation of formal consultation is required where. . . there is a failure to meet any of the measures or stipulations in the MOA." Biop at 63. Thus, this is simply not a case where there is no ESA recourse whatsoever if a non-federal party fails to implement its promised conservation actions. See BLM, 698 F.3d at 1114. Under these circumstances, it is apparent that the MOA is enforceable "under the ESA," as required by BLM.
The negative effects of groundwater pumping also do not qualify as "effects of the action" by virtue of being "interrelated or interdependent with [the action]." Indeed, the record does not support a conclusion that would satisfy the "but for" test of interrelatedness, i.e., "but for the federal project [(execution of the MOA)] these activities [(groundwater pumping)] would not occur." BLM, 698 F.3d at 1113 (quoting Sierra Club v. Marsh, 816 F.2d 1376, 1387 (9th Cir.1987)); 50 C.F.R. § 402.02 ("Interrelated actions are those that are part of a larger action and depend on the larger action for their justification."). Neither is there any evidence that the groundwater pumping has "no independent utility apart from the action under consideration," as required to be interdependent. 50 C.F.R. § 402.02. It appears then, perhaps somewhat ironically in light of CBD's reliance on BLM, that the effects of groundwater pumping are best characterized as "cumulative effects," i.e., they are "effects of future State or private activities, not involving federal action, that are reasonably certain to occur within the action area of the Federal action subject to consultation."
The ESA requires an agency to use "the best scientific and commercial data available" when formulating a Biop. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(g)(8). This standard does not require the agency to "conduct new tests or make decisions on data that does not yet exist." San Luis & Delta-Mendota Water Authority v. Locke, 776 F.3d 971, 996 (9th Cir.2014) (citing Am. Wildlands v. Kempthorne, 530 F.3d 991, 998-99 (D.C.Cir. 2008)). Rather, "[t]he best available data requirement `merely prohibits [an agency] from disregarding available scientific evidence that is in some way better than the evidence [it] relies on.'" Kern Cnty. Farm Bureau v. Allen, 450 F.3d 1072, 1080 (9th Cir.2006) (quoting Sw. Ctr. for Biological
CBD argues that the Biop fails to satisfy the best science requirement because FWS has "conceded that the Conservation Measures' flow reduction trigger scheme—the foundation for the [Biop's] no jeopardy finding—is based not on science but on expediency." In support of this claim, CBD cites a statement by FWS Office Field Supervisor Bob Williams that the flow reduction triggers in the MOA "were negotiated, not biologically based, and believed to be reasonable for the purpose of off-setting the affects to the species."
CBD argues that the Biop is arbitrary and capricious because the record does not support a conclusion that the MOA's conservation measures are effective or adequate to insure against jeopardy to the Moapa dace. CBD also asserts that we owe no deference to the Biop's conclusions because FWS failed to address its own "scientists' unanswered and uncontroverted concerns" regarding the effectiveness of the MOA's conservation measures in avoiding jeopardy to the Moapa dace.
First, CBD criticizes the MOA's flow triggers, and particularly the lowest 2.7 cfs flow trigger, which if reached, requires the MOA signatories to reduce pumping in the Coyote Spring Valley and the California Wash to 724 afy and 1,250 afy, respectively. CBD points out that in a separate § 7 consultation relating to construction of a pipeline (the "pipeline project") in the MVNWR, FWS hydrologist Tim Mayer expressed "strong doubt" about whether even a higher 3.0 cfs minimum flow threshold would adequately protect the Moapa dace or support a non-jeopardy determination, stating: "Biologically, do the flows proposed by SNWA protect the dace (does it support a non-jeopardy opinion)? We have no evidence that they do, since they have not been that low previously. Our proposed flows (of 3.3 cfs) seek to protect existing conditions so we assume that it won't jeopardize the species." CBD also points out that the FWS Water Right was already being impacted by pre-MOA groundwater pumping, and that even the intermediate flow triggers of the MOA, ranging from 2.8 to 3.2 cfs, permit more groundwater to be pumped than was pumped prior to the MOA.
CBD's second critique of the Biop is that it assumes, without any support, that reducing or halting groundwater pumping will address any observed decline in spring flows. According to CBD, this conclusion is the "linchpin" of the Biop's no jeopardy conclusion because if Moapa dace habitat will continue to be lost after the cessation of groundwater pumping, the conservation measures of the MOA are ineffective. CBD points to three draft comments by FWS's scientists in this regard that it claims were not addressed in the final Biop. First, hydrologist Tim Mayer stated: "I don't want to be put in a position of saying that the flows are going to stop declining at 2.7 cfs—this seems to be the conclusion of our BO and our basis for the non-jeopardy although the hydrological analysis doesn't say anything like that." Second, Mayer stated in a comment on the pipeline project that "stopping pumping at 2.7 cfs doesn't mean the flow reductions cease—springs may continue to decline even without pumping." Third, Rick Wadell, whose position with FWS is unclear, stated in comments to the Biop that "[i]mpacts to the dace population may occur more rapidly than the water supply can be re-established."
Finally, CBD urges that the other conservation measures of the MOA, i.e., those unrelated to flow triggers, "are of limited effectiveness in avoiding loss of high quality Moapa dace habitat in the higher elevation Pedersen Unit spring complex." For instance, one FWS scientist expressed concern that MVWD's dedication of 1.0 cfs to the Apcar Unit was "being oversold." Another FWS scientist noted that it was unclear how CSI dedicating 460 afy would benefit the dace unless it could be "transferred to in-stream rights for dace . . . the small reduction in pumping from carbonates that this dedication might represent would only delay the impact a short time."
We disagree with CBD's assertion that the Biop fails to address or assuage Mayer's concerns that even a 3.0 cfs flow rate would be insufficient to protect the
The Biop also does not, as CBD contends, assume with no support that reducing or ceasing groundwater pumping will slow the decline in spring flow at the Warm Springs West flume. While the Biop explicitly recognizes that "the response of the aquifer to a reduction or cessation of pumping is not known and has not been tested," Biop at 46, FWS still possessed sufficient data to make an informed prediction. As noted, the Biop provided an extensive evaluation of the regional carbonate aquifer system. Biop at 15-17. In so doing, it explains that "[g]roundwater inflow or recharge" to the system is "primarily through precipitation." Biop at 16. Consistent with this understanding of the system's most likely recharge source, the Biop also recognizes that "groundwater levels have generally increased recently, likely in response to the extremely wet winter experienced by the region in 2005." Id. at 48. After exploring the currently observed groundwater impacts and trends and a variety of flow models, the Biop then assumes a correlation between groundwater withdrawals and a decline in water levels in the system. Given this data, there was clearly a rational connection between the data available to FWS and its "assum[ption] that reducing and ceasing the pumping will slow the decline in water levels." Id. at 46-47.
Because the record does not support a conclusion that FWS ignored its own scientists' concerns, we reject CBD's best science claim in this regard. The claim additionally fails because CBD has not pointed to any evidence supporting a conclusion that: (1) the "concerns" of FWS scientists were supported by better science that used in the Biop; or (2) FWS disregarded scientific information that was better than the evidence upon which it relied.
In National Wildlife Federation v. National Marine Fisheries Service, we stated:
524 F.3d at 930.
As we explained supra, the only "action" in this case, as that term is defined by the ESA and its implementing regulations, is FWS's participation in the MOA. CBD does not, however, point to a single provision in the MOA that causes even a de minimus deterioration in the Moapa dace's pre-action condition. Indeed, the Biop makes clear that the negative effects to the Moapa dace discussed therein are the result of State-mandated groundwater pumping—which under the facts of this case fit squarely within the ESA's definition of "cumulative effects." 50 C.F.R. § 402.02. The conservation measures in the MOA, on the other hand, are expected to result in an "increase in the species distribution and abundance throughout the range of the species." Biop at 56. While CBD points to concerns by FWS scientists that some of the measures were being oversold, the Biop's observation that the conservation measures will improve conditions for the Moapa dace would hold true even assuming that some provisions of the MOA do not ultimately result in as high a level of benefit as anticipated in the Biop.
CBD's objections to the Biop and MOA in this case can appropriately be characterized as claiming that the MOA does not do enough to ensure the survival of the
We additionally conclude that CBD has failed to demonstrate that the Biop's no jeopardy conclusion is arbitrary and capricious because CBD has not shown that the action, even together with the cumulative effects, causes jeopardy to the "continued existence" of the Moapa dace. 16 U.S.C. § 1536(a)(2). CBD has not challenged the Biop's conclusions as they relate to the survival of all Moapa dace; rather, CBD narrowly and improperly focuses on the claimed ineffectiveness of the conservation measures in only the Pedersen Unit. See FWS Consultant Handbook at 4-36 ("The determination of jeopardy or adverse modification is based on the effects of the action on the continued existence of the entire population of the listed species[.]"). In so doing, CBD fails to even acknowledge the Biop's conclusions that various non-flow related conservation measures are anticipated to "increase [Moapa dace] distribution and abundance over and above current conditions" before any groundwater pumping even occurs. Biop at 56. Such measures, among other things, "would reduce the potential for fire and restore the overall spawning and rearing habitat [at Jones Spring] sufficient to sustain several hundred Moapa dace," as well as increase the security of habitat throughout the species range by removing non-native fishes and reducing species vulnerability to catastrophic events. Id. at 57-60. It is proper for FWS to rely on mitigation and offsets in its jeopardy analysis, and it may view the effect of all such efforts on the species as a whole, rather than requiring a tit-for-tat offset in every subsection of species habitat. See Rock Creek Alliance v. FWS, 663 F.3d 439, 443 (9th Cir. 2011) (approving no jeopardy finding where mitigation plans were expected to offset adverse effects to endangered species,
CBD argues that, by failing to issue an ITS, FWS acted arbitrarily and capriciously by failing to evaluate all foreseeable consequences of the proposed action. In particular, CBD objects to the Biop's deferral of analysis of potential take until second stage consultations, contending that "if a jeopardy analysis is possible in a programmatic consultation, analysis and quantification of potential take through an incidental take statement . . . must also be possible."
Section 1536(b)(4) provides: "If after consultation . . . [FWS] concludes that— the taking of an endangered species . . . incidental to the agency action will not violate [§ 1536(a)(2)'s requirement that federal agencies avoid jeopardizing the continued existence of any endangered species] . . . [FWS] shall provide the Federal agency . . . with [an ITS]." (emphasis added). As we have stated, the "agency action" that is evaluated in the Biop is "the execution of the MOA by [FWS]." Biop at 62. While execution of the MOA presumes that groundwater withdrawals, and resultant take of Moapa dace, will occur consistent with Order 1169, the Biop correctly states that the execution of the MOA "in and of itself, does not result in the pumping of any groundwater." Id. CBD points to no evidence that incidental take was likely to occur merely because FWS executed the MOA, and we do not believe the record supports such a conclusion. Thus, there was no necessity that FWS issue an ITS.
We find no evidence in the record that FWS relied on improper factors, failed to consider important aspects of the problem, offered explanations for its decision that were counter to the evidence before it, or offered implausible explanations for its decision. Accordingly, for the reasons explained
