Justificación

Defendants argue that there are sufficient NEPA documents in the record to meet the Corps’ and BOR’s obligations under NEPA. The Corps’ ROD addressed NEPA in two paragraphs. ACE_0000010 (ROD at 9). In the first paragraph, the Corps listed several NEPA documents as “relevant” to its decision to adopt and implement the 2014 BiOp: (1) unidentified

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To the extent the decision to conduct discrete EISs with narrow scopes, such as the DCCO EIS, is entitled to deference and should be reviewed under the arbitrary and capricious standard, for the same reasons the Court finds reliance on the discrete EISs to be unreasonable, the Court finds them to be arbitrary and capricious.

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(2) 1992 Columbia River Salmon Flow Improvement Measures Options Analysis EIS (“Flow EIS”); (3) 1993 Supplemental Flow EIS; (4) 1997 System

Operation Review EIS; (5) 2002 Lower Snake River Juvenile Migration Feasibility Report EIS; (6) 2006 Upper Columbia Alternative Flood Control and Fish Operations EIS; (7) 2011 Albeni Falls Flexible Winter Operations EA; and (8) 2014 Inland Avian Predation Management Plan and EA. In the second paragraph, the Corps concluded that it

believes that the effects of the action are within the range of the analyses conducted in the existing NEPA documents. For studies of certain future structural modifications and operations, or other actions, such as future estuary habitat actions, hatchery reform actions, and elements of the strategy to further reduce avian predation, the Corps will complete additional NEPA analysis.

Id.

BOR’s 2014 ROD is a “supplemental” decision document, and it does not specifically mention NEPA. BR0000002-11. It does, however, attach BOR’s 2010 Supplemental Decision Document, which discusses NEPA in footnote eight, noting that BOR considered the following previous NEPA documents as relevant: (1) 1992 Flow EIS; (2) 1993 Supplemental Flow EIS; (3) 1997 System Operation Review EIS; (4) 2006 Upper Columbia Alternative Flood Control and Fish Operations EIS; (5) Lake Roosevelt Incremental Storage Release Project FONSI and EIS; and (6) 2004 Banks Lake Drawdown EIS. BR0000024 (2010 Supplemental ROD at 9). BOR also acknowledged that future “site-specific” EISs might be necessary. Id.

Plaintiffs argue that these documents are unreasonably outdated and the more recent documents are either irrelevant or too narrow in scope to constitute compliance with NEPA for the RODs. The Court agrees.

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The Court notes the Corps’ AR also includes a 2004 Juvenile Bypass EIS and 2005 Caspian Tern EIS, among some older EAs and other NEPA documents.

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a. The older documents are unreasonably stale.

The 1992, 1993, and 1997 EISs relate to the FCRPS and are relevant. Plaintiffs argue, however, that they fail to meet the Action Agencies’ NEPA obligations in this case because they are outdated and do not consider all of the actions in the RPA.

For purposes of NEPA compliance, relying “on data that is too stale to carry the weight assigned to it may be arbitrary and capricious.” N. Plains 668 F.3d at 1086 (citing Lands

Council, 395 F.3d at 1031 (finding that six-year-old data, without updated habitat surveys, was

too stale)). Notably, the Council of Environmental Quality, which promulgates the NEPA

regulations, has emphasized that NEPA documents more than five years old should be “carefully reexamined” for supplementation. See Council on Environmental Quality, Executive Office of the President, Publication of Memorandum to Agencies Containing Answers to 40 Most Asked Questions on NEPA Regulations, 46 Fed. Reg. 18026-01 at *18036 (1981) (“CEQ FAQ”) (“32. Q. Under what circumstances do old EISs have to be supplemented before taking action on a proposal? A. As a rule of thumb, if the proposal has not yet been implemented, or if the EIS concerns an ongoing program, EISs that are more than 5 years old should be carefully reexamined to determine if the criteria in Section 1502.9 compel preparation of an EIS supplement.”).

Defendants argue that the older NEPA documents are not too stale because there is no new information bearing on the proposed action or its effects and the physical environment has essentially remained unchanged. Defendants, however, do not cite to any scientific studies or record testimony supporting this conclusion. To the contrary, throughout this case Defendants have argued that the RPA actions, both as already implemented and expected to be implemented, make significant changes to the physical environment and the effects of the FCRPS. Part of Defendants’ arguments regarding whether the RPA actions adversely modify critical habitat is

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that the RPA actions significantly improve the mainstem habitat for fish and do not maintain the status quo. Defendants’ opposite contention for purposes of NEPA is without merit.

The 2000, 2004, 2008, and 2014 BiOps discuss actions taken over the past 20 years that affect the physical environment. Moreover, several new species have been listed and much additional habitat has been designated as critical habitat. Defendants do not explain how the EISs from the 1990s properly addressed impacts to species that were not yet listed. Cf. Friends of the

Clearwater, 222 F.3d at 558 (finding agency violated NEPA by failing to consider whether the

listing of seven new species as sensitive species required a supplemental EIS). Furthermore, since the 1990s there has been significant new scientific information relating to climate change and its effects. All of this information supports a finding that the relevant physical environment has changed and thus the EISs prepared in the 1990s are no longer current.

Additionally, even if the physical environment remained unchanged, the Court agrees with the Ninth Circuit’s analysis in N. Plains that Defendants do not show how such a fact “necessarily and logically leads to the conclusion that the information regarding habitat and populations of numerous species remains the same as well.” N. Plains, 668 F.3d at 1086; see also

Lands Council, 395 F.3d at 1031 (“Evidence of the current habitat conditions, and any

degradation or improvement in the last thirteen years, is relevant evidence in analyzing and determining what, if any, impact the current Project will have on the cumulative effect of current and past timber harvesting on trout habitat and on trout population. Instead, the Forest Service predicted the Project’s impact on the Westslope Cutthroat Trout (and its habitat) using stale habitat data.”). It strains credulity to assert that information regarding habitat and fish populations remains the same in 2014 as it did in the 1990s.

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Moreover, in addition to requiring a supplemental EIS when there are significant new circumstances or information relevant to environmental concerns, NEPA regulations also require that an agency prepare a supplemental EIS when “[t]he agency makes substantial changes in the

proposed action that are relevant to environmental concerns.” 40 C.F.R. § 1502.9(c)(1)(i)

(emphasis added). After arguing that the 2008 and 2014 BiOps make numerous, significant changes to, among other things, habitat, predation, and dam operations and facilities in order to avoid jeopardy and adverse modification of habitat, the Court finds it disingenuous for

Defendants to argue for purposes of NEPA, that no changes to the proposed action have been made since the 1990s. The Court gives this argument no credence.

The existing NEPA documents relevant to the FCRPS from 1992 to 1997 are too stale. The Action Agencies’ reliance on them was unreasonable, arbitrary, and capricious. More importantly, however, those documents do not address the RODs because they are not parallel in scope and thus supplementation of those documents would not be sufficient. A new EIS is required for the 2014 BiOp RPA, as discussed further below.

b. The recent documents are insufficient

Regarding the more recent, discrete NEPA documents, such as the avian predation and narrowly-focused flood control EISs, the Court finds that they are insufficient to meet the Corps and BOR’s NEPA obligations. Some of these documents involve measures that are unrelated to the 2014 BiOp RPA and are thus irrelevant (such as the Albeni Falls operations EA). Others, such as the avian predation plan or Lower Snake River juvenile migration plan, are relevant but too narrow in scope to meet the Action Agencies’ NEPA obligations, as discussed further below.