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Case3:12-cv-02158-JSC Documentl FiledO4/30/12 Page2 of 17

IAN C. VOLKER. (CSB 1/63093) c„ce,.;1?)

DA.NII1, 'GARRETT-STEINMAN (CSI:3 P269146 M. BENJAMIT\11:::.ICIII,',NBERG (::!SB 8270893) LAW OFFICES OF S'I'EPIIAN 436 :kV Sttect, Sulk) 1300 OAdand, California 94612

510/496-0600 5 f 510/4-96-1366

j ■") ),(1\. C I I IC COAST FEDERAnaN OF FISMIZMEN'S

MSOC'IATIONS and SAN FRANCISCO CRAB BOAT OWNERS ASSOCIATION, 'INC.

1211/ f1'11) 2)11P.`21'

FOR1141:

1 ,0

1\C-111.1C, cnAS'.1- 11 1'1,17)1",R1:11'0Ai C4 Co/ FISHERMEN'S ASSOCIATIONS trim' SAN FRANCISCO CRAB BOA F OWNP,R.S COMil As sociAnoN, AND itIN,41UNCli'VE CLliSkf

Plaintiffs,

V.

UNTIED STATES DEPARTMENT OF JIF FNIT:RIOR, and U-NEITED STAIES BURT ,',A0 OF RECLAMATION,

De•Iutdants.

INTRODUCTION

I, Plaintiffs PACIFIC CO: Fl .',RADON OF FISt11.:RMEN'S

ASSOCIATIONS and SAN FRANCISCO CRAB BoAT OWNPRS ASSOCIATION, INC.

(col ect ively, "plaintiff's") hereby sue di: lendani:-, UNTIED STATES DEPARTMENT OF THE

INTERIOR and UNITED STATES BUR 7 I Oi RECL,AN4ATION (eollectivoly,

Reclamation") for vic.Ilitions of Nationid Lovironliwitud Policy Act ("NEPA . '), 42 U.S.C.

section 4321 et SC ro 2,1 improverficnI A ct c'cvpi. Pu blic

No. 102-5'75, 108 SL--.4. ; Title XX„XIV (1992).

2, IiruiiiiftH; overiurnimi Reclamation's

Complaint fin Do.littlitoty and tractive Relict' Case. No, 10 13.1:, ASSI( ;NH)

Case3:12-cv-02158-JSC Documentl Filed04/30/12 Page3 of 17

1- -al Assessment ("EA") and Finding of No Significant Impact ("FONS1") adopted

for eight water service contracts, referred to as the Three Delta Division and Five San Luis Unit

Service interim Renewal Contracts 2012-2014 (herei :er "interim contracts").'

4 pecifically, the EA and FOINS1 violate NI2PA because-they assume that Reclamation has no

discretion to (I ) reject the interim contracts; (2) reduce the quantities of water exported from the

Sacramento River Delta ("Delta"); or (3) increase the interim contracts' pricing structure to

7 educe water demand and thus reduce exports and their environmental impacts.

Reclamation's environmental review thus conveniently ignores the growing

environmental impacts its water exports are having,on the Delta's increasingly imperiled

10 a steelhead, sturgeon and other fish and wildlife affected by the signing of the interim

11 contracts. Because Reclamation considers continued water delivery - at present quantities

priceS be the environmental baseline. the EA and EONS.' conclude that water deliveries

13 under the il4en m contracts will have no elfect on the environment. Con!-;c(.11Icntly, the Bureau

14 failed to consider any alternatives or mitigation measures that would redlicc the interim

contracts impacts or even seriously to examine those impacts at all. To add insult to injury,

16 Reclamation's erroneous premise that it lacked any meaningful discretion regarding the interim

17 contracts was based on an outdated water needs assessment. which is not representative of

current conditions.

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20 charade, devoid of any effective environmental review of the interim contracts' adverse effects,

21 and of alternatives and mitigations that would avoid or reduce those effects. Plaintiffs seek

speedy adjudication of this matter to address and reverse the accelerating decline of fish and

ildlifc caused by the water diversions authorized by the interim contracts and to curtail the

contracts authorize two years o.fwater delivery from Reclamation's Central Project ("CVP") to the City of Tracy, Valley Water Management Agency,

Santa Clara Valley Water District, Westlands Water District, Westlands Water District )istribution District 41, and Westlands Water District Distribution District #2 (collectively, le "interim contractors").

4. Reclamation's F,A process was thus reduced to nothing more than a meaningless

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Case No. TO RE ASSIGNED and Injunctive Inplaint for 1..)eelarator

Case3:12-cv-02158-JSC Documentl Filec104/30/12 Page4 of 17

worsening contamination of ground and surface water resources in the Central Valley resulting

urn the harmful irrigation practices that these contra .(-; perpetuate. Reclamation must start

anew by re-assessing the demand underlying the interim contracts, conducting meaningful

-lies of the impacts of the water deliveries -t ley authorized, and analyzing the results of those

igh environmental review that considers alternatives and miti gation to

6 ul d avoid orreduce such impacts.

addition to asking this Court to rule that Reclamation's NA for the interim

contracts is inadequate, plaintiffs ask this Court to compel Reclamation to complete the long-

overdue l'Alyironmental Impact Statement ("NIS' for the long-term contracts between

10 Reclamation and the 'West San Joaquin Division and San Luis [Omit contractors as required by

the CVPIA.' in passing the in 7992. i ingress required Reclamation to conduct a

thorough en irotirn Me impacts oI entering into long-term contracts and then to

into those con -ip -opriate mitigations based on that comprehensive review.

14 'wenty years later Reclamation still has not yet completed this task, relying instead on repeated

ene als of the interim contracts without adequate environmental review. The CVPIA did not

16 authorize Reclaraaation to enter into a potentially endless cycle of interim contracts purportedly

17 based on a series of superficial and therefore meaningless hAs. Reclamation's failure to

conduct a timely environmental review o long-term contracts thus violates tire CVPIA.

6 In sum, plaintilk ask the Court to rule that Reclamationmust complete the long-

- --‘ct environmental review that it should have completed many years ago, a Id in the

-neantime, to conduct adequate environmental reyie the interim contracts until analysis of

the long-term contracts is completed. Reclamation's continuationof its destructive water

'se ft

Itracts if and when completed, will authorize water de iyeries for 25 years for Pacheco Water District, Panache Water District, San Luis Water District, Westlands Water District, and Westlands Water District Distribution District #2, and for 40 years for the California Department of Fish and Game, City of Avenal, City of Coalinga, and

f Fluron (collectively. "long-term contractors" or "West San Joaquin and San )nit contractors"). In both the interim contract and long-term contract context,

Reclamation's contractual allocation of 1:150,000+ acre feet to Westlands is by far and away the majority of the water at issue.

Complaint for i?eelaratony and IMuncti Relief Case No. "1 .0 13E ASSICti

Case3:12-cv-02158-JSC Document]. Filed04/30/12 Page5 of 17

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exports from the Delta under a seemingly endless cycle of interim contracts lacking any

adequate environmental review violates both NEPA and the CVPIA. This Court should correct

Reclamation's erroneous claims of impotence to conduct an adequate environmental review o

the interim contracts and remedy Reclamation's failure to timely prepare an EIS addressing the

long-term consequences of the long-term contracts.

SURESDICTION AND VENUE

The Court has jurisdiction over this action under 28 U.S.C. sections 1331 (federal

, 1337 (regulation of commerce), 1346 (United States as defendant), 1361 (modaMus

against an officer of the United States), 2201 (declaratory judgment:), and 2202 (injunctive

relief), and under the Administrative Procedure Act ("APA"), 5 U.S,C. sections 701-706

review of final agency action) (compel agency action unlawfully withheld or unreasonably

delayed) because (1) the action arises under the APA, NEPA, and the CVPIA; (2) Reclamation

is an agency of the United States government and the individual defendants are sued in their

capacities as officers of the United States; (3) the action seeks a declaratory judgment

that Reclamation's EA and FONSI were inadequate; and (4) the action also seeks further

njunctive and mandamus relief requiring Reclamation to comply with the requirements of the

:VPIA.

8

Venue is proper in thisjudicial district pursuant to 28 U.S.C. sections 1391(b)(2)

and 1391(e)(2) because a substantial part of the events giving rise to plaintiffs' claims occurred,

and a substantial part of property that is the subject of the action is situated, in this .judicial

istrict. For example, the Central Valley Project's C.W. "Bill" Jones Pumping Plant that harms

aintiffs by diverting Delta water south for use by CVP1A contractors is located in this judicial

district.

9. There exists now between the parties hereto an actual, justiciable controversy in

vhich plaintiffs arc entitled to have a declaration of their rights and of Reclamation's

obligations, and further relief because of the 'facts and circumstances hereinafter set fart

10, This Complaint is timely filed within the applicable six-year statute of limitations

Set brth in 28 U.S.C. section 2401(a).

- 4 - Case No. TO BE ASSIGNED Complain( for Declaratory and Injunctive Relied

Case3:12-cv-021.58-JSC Documen Filed04/30112 Page6 of 17

I I . Plaintiffs have standing to assert their claims because they suffer tangible harm

eclamation's violations ol' law as alleged herein, and have exhausted all applicable

need

4 I PAW'''. ES

12. IT PACIFIC COAST 1'l. El OF FISHERMEN'S

ASSOCIAFIONS ("PCFFA") is a non-profit, tax-exempt corporation which represents a

7 coalition of 14 fishermen's organizations in California, Oregon, and Washington with a

8 conibineu membership olf more than 750 fishing men and women. Each of its members

9 depends o -1 the ocean's fishes for his or her livelihood. PCITA has a vital and direct interest in

10 Reclamation's environmental review and management of the Central Valley Project because its

art of the Central Valley Project directly affects the health and population of anadromous

1? {fishes including salmon and steelhead on Whic.h PCH.:A's members rely for their sustainable

-st of the ocean's fishes. The interests of P(...:FFA and its members have been, arc being,

mless the relief requested herein is granted, will be adversely affected by Reclamation's

waif of the interim contracts without proper NEPA review, by the interim contracts'

~ILrent unexamined and inadequately mitigated impacts on the environment, and by

Rec. tion's failure to timely complete its environmental review of its ing long-term

contracts under the CVPIA,

13. Plaintiff SAN FRANCISCO CRAB BOAT OWNERS ASSOCIATION. INC.

'rab Boat Owners Association' a California corporal on whose members rely On a

arvest of crustaceans and fishes from the Pacific Ocean for their livelihoods. The

sat Owners Association has been protecting the rich seafood fisheries off - the coast of

isco since 1913. The Crab Boat Owners Association's members operate small, -Iltnaily

ned fishing boats that catch Dungeness crab, wild California king salmon, herring, and many

other fish species that live in the cold waters of the Pacific Ocean. Members are also actively

involved in community education, and fishing resource advocacy to ensure that the ich heritage

)mmereial fishing for Bay Area residents will survive for future generations. The interests

Crab Boat Owners Association and its members have been, are being, and unless the

Complaint l'or Declaratory and Injunctivc Case NO. TO 131-: ASSIGNED

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elief requested herei will continue to be adversely affected and injured by

eclamation's approval of the interim contracts without proper NEPA review, by the interim

ontra.cts' consequent unexamined and inadequately mitigated impacts on the environment, and

by Reclamation's failure to timely complete its environmental review of its pending long-term

contracts under the CVPIA,

14. Plaintiffs' injuries niflay tracable to Reclamation's actions. These injuries are

actual, concrete, and imminent and cannot be adequately remcdied by money damages.

aintiffs have no plain, speedy, or adequate remedy at law. Accordingly, plaintiffs seek

mctive, mandamus and declaratory relief from this Court to rectify Reclamation's unlawful

acts and thereby to address plaintiffs'

1.5. Defendant 121 Th,b ST hS DEPA771\41J ,TT OF THE, INTERIOR is the

United States tlam ted with un the(I;entral Wiley Project ("CVP"). T he

lnited States Department of the li or appioved the in erim contracts challenged in this

igation without an adequate environmental review, and failed to timely complete appropriate

environmental review for the longterm contracts.

16. .Defendant UNITED STATES .6 61...EAU OF R.T-7 ./...M.ATION is the federal

t. encywithin the United States partment-o r the Tri.a: with managing the CVP.

The United States Bureau of Reclamation approved the interim contracts challenged in this

itigation without adequate environmental review and failed to timely complete appropriate

ivironmental review for the long-4am contracts.

BACKGROUND

Case3:12-cy-02158-3SO Documentl Filed04/30/12 Page7 of 17

Since passage of the CVPIA in 1992, the Sacramento River winter and spring run

24 Chinook salmon, Central Valley steelhead, North American green sturgeon and Delta smelt

25 'Ia.: , perilously close to extinction. Winter run Chinook salmon were initially listed

as a fe.crally threatened rrecies in 1990 (55 Fed. Reg 46515), and then due to continuing

population declines, d ,..Adanizered in 2005 (70 Fed. Reg. 3'71_60). Their critical habitat

in the Sacramento .River and its tributaries was designated in 1.993. 58 Fed Reg. 33212. Spring

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Case3:12-cv-02158-JSC Document! 1 2 0 30/12 PageS of 17

run Chinook salmon were listed as threatened, an critical habitat designated, in 2005. 70

d. Reg. 37160, 52488. Central Valley steclhead r were listed as threatened in 201)0 (65 Fed.

Reg. 52084) and their critical habitat was designated in 2005 (70 -Fed. Rea. 52488). The

S outhern Distinct Population Se 'nem ("DPS") of -North American green sturgeon was listed at

t tneatened in 2006 Fed. Reg. 17757) and their critical bitat was designated in 2008 (73

. Reg. 52084). Delta said ed as endangered in 1993 (58 Fed. Reg. 12854) and

7their eir critical habitat was designated 1994 (59 Fed, Reg. 65256). Seventeen species of fish

-nous to the Delta have already gone extinct; just 12 indigenous species remain, Habitat

) for the Sacramento River winter and spring run Chinook salmon, Central Valley steelhead,

10 Southern DPS of the green sturgeon, and the Delta smelt has suffered progressively worsening

1 1 degradation over the last several decades from excessive Delta water exports by the CVP and

the -State Water Project - ("SWP"). oris decrease frcsk ler flows. .111(i increase

13 salinity and :oncentration ofherbicides, pesticides and toxic agricultural runoff, in the

14 Delta.

18. On June 4, 2009, pursuant to its under section 7 of the

dangered Species Act ("ESA"), 16 1..1.S.0section 1536, the National -'.\,!arise Fisheries

rvice ("NMI'S") informed Reclamation that:

Based on the best available , and commercial information, NMES

[Biological] Opinion concludes that the CVP/SWP operations are likely to

jeopal the nued existence of Federally listed:

Endangered Sacramento River winter-run Chinook salmon (Oncorhynchus

rshawyt.s.cha),

Threatened Central Valley spring-run Chinook salmon . tshowyt.scha).

Threatened Central Valley steelhead (O. tnykiss),

Threatened Southern Distinct: Population Segment (DPS) of North American

sturgeon (Acipenser medtro,ytri ,and

Southern Resident killer whales (Orcinus (area) [who feed on the salmon"

N.-WS also concludes that the proposed action is likely to destroy or

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Complaint lot DQclaratory and Injunctive Relief 7 Case 1,4( 10 BE (1 (1

Case3:12-cv-02158-ISC Document' Filed04/30/12 Page9 of 17

advel

Ira] Valley s

Central Valley spri

lcsi~raated l habitats of

'un Chinook salmon,

a - on Chinook salmon, and

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Central Valley stcelhead, and

proposed critical habitat for the Southern of North American green

sturgeon.

NM . S letter to defendant Donald R. Glaser transmitting final Biological

operations me 4, 2009, at pages 1-2 (emphasis added).

mento River winter and spring run Chinook salmon, Central

Southern DPS of the green sturgeon and Delta smelt are all indicator species ft

health o Bay-Delta ecosystem and for the other special status •Ilsh species that inhabit this

'ra rtlt„ is tt 3 l y . These species are pot at 'inrther risk by Reelarnati m's continuing :failure

duct a serious environmental impact nalysis for the CVP's short- and long-term water

ts. Among tlae other special status Delta species impacted by this ack of analysis are the

acra Tient() splittail, Longfin smelt, and White sturgeon.

20. In addition to harming: many fish s he Delta, the use of the water

authorized Reclamation pollutes ground- and surface water resources in the San Joaquin

Vtd liey , ation leaches pollutants from the toxic soils underlying many of the farms that

receive water under the contracts challenged herein. The resultant drainage water Lrani farms

dischar es pollutants including selenium, uP;citic, be on, mercury, urar ium, chromium,

molybdenum and sodium sulfates and thereby contaminates the Bay-Delta and its tributaries.

Indeed, this pollution threatens some of Cal tornia's .most critical ecological resources. It

degrades water quality in the Ba:-Delta and thereby exacerbates the threats to endangered and

threatened fish species there, including the delta smelt, salmon, steelhead, and sturgeon. The

Project's polluted discharge is also drawn into drinking water supplies through the CVP and

State Water Project ("S WY") thereby degrading drinking water for

11. CVP1A

21, The CVPIA was enacted on October

million Californians.

1992 for t Ie express

- 8 - t»nlaint or claraton rtrid Injunctive Relief' Case No. TO 1=-311 ASSIGNED

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Case3:12-cv-02158-JSC Document], Filed04/30/12 Pagel° of 17

purpose ofamelioratin g the adverse environmental impacts that result from CVP operations.

CVPIA, supra §§ 3402(a)-(b), 3406(b). In order "Itlo address impacts of the Central Valley

-oject on fish, wildlife and associated habitat," the CVPIA requires environmental review ---

including the preparation of an Environmental Impact Statement ("I IS") under NEPA beibre

any long-term water service contract can be renewed by Reclamation. CVPIA §§ 3402(a),

3404(c)(1). Despite the fact that Congress enacted the CVPIA almost 20 years ago,

nation has not yet completed its NEPA review of the long-term contracts for the Vest

oaquin and San Luis Unit contractors. Instead, it has repeatedly issued short-term,

interim" contract renewals devoid of adequate environmental review series of near

lea! LAs.

111. Short-Te Contract EA

shot-term, interim contra,..ts were autherezed by the .A to bridge the

is between pirati • n of previous long terin contracts and the completion of environmental

revie w for, and finalization of, the new long-term contracts. The informed approval or

oval -- of these short-term, interim contracts is within the discretion of Reclamation.

'IA § 3404(0(1). Specifically, the CVPIA states:

(e) Renewal of Existing Long- .1:erm. Contracts. Notwithstanding the provisions of the

Act of 2, 1956 (70 Stat. 483), the Secretary shell, upon request, renew any existing

long-term repayment or water service contract for the deliver) , of water from the Central

Valley Project for a period of 25 years and may renew such contracts for successive

periods of up to 25 years each.

(1) No such renewals shall be authorized until appropriate environmental rev

including the preparation of the environmental impact statement required in

section 3409 of this title, has been completed. Contracts which expire prior to the

completion of the environmental impact statement required by section 3409 may

he renewed for cm interim period not to exceed three years in length, and for

successive interim periods of not more than two years in length, until the

environmental impact statement required by -section 3409 has been finally

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Case3:12-cv-02150 JSC Document1 Filed04/30/12 Page11 of 17

completed , at which time such interim renewal ntracts shall he eligible fbr

long-term renewal as provided above.

CVPIA § 3404(c)(I) (emphasis added). Thus, under the CVPIA's plain language, Reclamation

lacks discretion to disapprove the initial long-term contract renewals, but retains full discretion

to disapprove or alter the interim contracts, which "mm' be renewed for an interim period." Id.

(emphasis added).

23. On or about February 29, 2012, Reclamation issued a FONSI and CA purportedly

addressi the "Three Delta Division and Five San Luis Unit Water Service Interim Renewal

Contracts 2012-2014." Based on that FONSI and EA, Reclamation approved eight interim

enewal contracts, including contracts with the City of Tracy. Pajaro Valley Water Management

\gency, Santa Clara Valley Water District, Westlands Water District, Westlands Water District

stril>ution District #1, and Westlands Water District Distribution District #2. Water delivery

ant to Reclamation's contracts commenced on March 1, 2012

24. In its EA for the interim contracts, Reclamation ignored the CVPIA language

ion to disapprove the interim contracts and claimed that it lacked any

discretion to reject the contracts or even to reduce deliveries. Based on this faulty premise, the

EA analyi.cs only two alternatives, the Proposed Action and the No Action Alternative, both of

which continue water diversions and deliveries in the scene amounts. Because the EA considers

continued water delivery to be the environmental baseline, it concludes that the signing of the

interim contracts will ave no effect on the environment. Similarly, the EA concludes without

substantive analysis that the interim contracts will not violate any other federal environmental

laws on the grounds that Reclamation lacks discretion to disapprove them, or to reduce

deliveries of water if they are approved.

25.!'he EA improperly limits its Study Area for the interim contracts to their delivery

or service areas. ■ ti dom e Reclamation ignored the interim contracts' principal

environmental impacts, including their impacts on the CVP's source watersheds — including the

American, Trinity,and Sacramento rivers — and their imperiled fish and wildlife, and on the

Delta itself.

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Complaint for Declaratory and Injunctive Case No. TO 13G ASSIGNED

Case3:12-cv-02158-JSC Document1 Filed04/30/12 Page12 of 17

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9 CVMA § 3409. The CVPIA also requires Reclamation to undertake "appropriate

|0 environmental review" before entering into any long-term contract renewals. CVPIA §

11 3404(c)(1),

Reclamation completed a Programmatic -Environmenta Impact Statement ("PETS") in

13October 1999, four years after thc required statutory deadline. In it, Reclamation generally

14 .eviewed the impacts of implementing various aspects of the CVPIA on a regional level, but did

IS. not address the environmental impacts of the long-term contracts. Thereafter, Reclamation

16 began the process of preparing project-level EISs for long-term contract renewal. Accordingly,

17 in September 2005, Reclamation prepared and released a Draft EIS for long-term contract

18renewals for the West San Joaquin Division and San Luis Unit contractors,

19 Since 2005, k_celamation has done nothing to complete its environniental review of the

20 ong-term contracts to enter into the long-term contracts despite the clear intent of Congress in

the CVPIA to conduct "appropriate environmental review" for the - long-term contracts in an

22 expeditious manner.

23 FIRST CLAIM FOR RELIEF

24 (Violation of the National Environmental Policy Act — Inadequa e EA)

2:5 (Against All Defendants)

26. The paragraphs set forth above are realleged and incorporated herein by

27 reference.

28 27. NEPA requires the preparation of an EIS if a proposed major federal action has

IV. Long-Term Contract Environmental Review -

The CVP1A required Reclamation to expeditiously conduct environmental review of the

long-term contract renewals. First, the CVPIA states:

Not later than three years after the date of enactment of this title, the Secretary shall prepare and complete a programmatic environmental impact statement pursuant to the National Environmental Policy Act analyzing the direct and indirect impacts and benefits of implementing this title, including all fish, wildlife, and habitat restoration actions and the potential renewal of all existing Central Valley Project water contracts. Such statement shall consider impacts and benefits within the Sacramento, San Joaquin, and Trinity River basins, and the San Francisco Bay/Sacramento-San Joaquin River 'Delta Estuary.

Case No. TO LIL: ASSIGNED '."m»|amtknooummvrymu|njmmi,, 'll-

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Case3:12-cv-02158-jSC Documentl Pilec104/30/12 Page13 of 17

e potential to significantly affect the quality of'the human environment. 42 U.S.C. § 4332,

project's risks of environmental harm are uncertain, if they are potentially significant,

required. City of.Dovis v. Coleman, 521 F.2d 661 ., 676 (9th Cir. 1975).

28. However, a proper finding by an agency that a proposed action will produce no

significant impact on environment relieves the agency of its duty to prepare an EIS. 40

;RR., §1501.4(c). But an agency cannot simply issue a conclusory statement claiming the

absence of significant impacts, Instead, the agency must support each finding of "no significant

impact" with a "concise public document," known as an environmental assessment, or EA.. 40

Z. § 1501.4(a)-(b), 1508.9. The EA must "Nrielly 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) (emphasis added). Although an EA need not

be as thorough as an EIS, the agency must still conduct a "comprehensive assessment of the

expected effects of a proposed action'' to determine if that action is significant. Foundation on

Economic Trends. v Weinberger, 610 F,Supp, 829, 837 (D.C.D.C. 1985) (quoting Lower .

Alloways Creek 12.), v Public Service Elec,, 687 F.2d 732, 740 (3rd Cir. 1982)). Reclamation

-d to do so here.

29. Reclamation based its EA and CrESI for the interim contracts on the false

premise that in renewing the interim contracts it had no discretion to reduce-ter eliminate water

deliveries. The plain language of the CVPIA — with which Reclamation attempts to support this

false premise demonstrates to the contrary that Reclamation's approval of the interim

contracts is discretionary and thercfbre a full review of the environmental impacts of the interim

contract renewals is required by NEPA.

30. Further, Reclamation's claimed lack of discretion is based on an outdated water

needs assessment, which was prepared in 2006. Since 2006, the contractors' water needs have

changed significantly, based in part on retirement of farmland caused by drainage problems.

Without an accurate and current picture of' the contractors' water demands, Reclamation's

analysis of purpose and need violates NEPA. Reclamation's purported justification for its

claimed lack of discretion in selecting alternatives or rejecting the contract altogether is

- 12 - Case No, TO BE ASSIGNED Complaint for Declaratory and Injunctive Relief

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nsupportablc.

. Reclamation's claim that it lacked discretion to disapprove the interim contract

3 or reduce their deliveries caused it to ignore and trivialize the interim contracts' environmenta

4 impacts, and the alternatives that would. avoid or reduce these impacts, rendering its EA an

5 empty exercise. The EA's defects include the following errors and omissions, among others:

6 The EA fails to A'y and analyze the interim contracts' principal

environmental iinpats because it assumes incorrectly that Reclamation's

continued delivery of water in the same quantities is the baseline or background

against which to measure the interim contracts' impacts. Consequently, the EA

failed to compare the environmental impacts of Reclamation's proposal to divert

and deliver massive quantities of water with the reduced impacts of halting or

reducing those diversions and deliveries

The EA fails to consider a reasonable r;:tny . of alternatives. It considers only two

alternatives, the Proposed Action and the No Action Alternative. The No Action

Alternative, however, is the same project as the Proposed Action with only one

small pricing difference. Under both so-called "alternatives," Reclamation would

COnljnVe otk)iver )) , ter the same amounts to the inierin? contractors. The No

Action A 7ei.11ati -ve railed 1 o r,',onsid tany-i:mewat of the contracts, contrary to the

e'e'css.ly discretionary terms of the CVPIA. Alternatives proposing a reduced

quantity of viatci ,...liveries were likewise improperly eliminated from

consideration, as were alternatives that increased prices and thereby reduced the

min) caatfootatts) demand for CVP miter.

c. The EA ignores the environmental impacts of the interim contracts' water

deliveries on the source watersheds -- including the American, Trinity, and

Sacramento Rivers --- and their imperiled fish and wildlife, and on the Delta itself,

It unlawfully excludes these directly intpted natural resources from the EA's

unduly narrow Study Area, which is improperly restricted solely to the service

areas of the interim contractors,

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Case3:12-cv-02158-JSC Documenti Filed04/30/12 Page15 of 17

d. The EA failed to consider the effects of diverting and delivering massive

quantities of water, versus halting or reducing those deliveries, on Reclamation's

compliance with other environmental laws such as the Endangered Species Act

(16 U.S.C. section 1531 et seq.), the Clean Water Act (33 U.S.C. section 1251 et

seq.) and the Migratory Bird Treaty Act (16 U.S.C. section 703 et seq.).

c.

The EA's analysis likewise ignores the cumulative impacts of all of the interim

contract renewals.

32. Reclamation's failure to prepare a legallyadequate EA and FONSI for the interim

contracts is arbitrary and capricious, a failure to proceed in the manner required by law, not

supported by substantial evidence, and thus in violation of NEPA and the APA.

SECOND CLAIM FOR RELIEF

(Violation of National Environmental Policy Act — Failure to Prepare an EIS for Interim Contracts)

(Against All Defendants)

Plaintiffs incorporate by reference all preceding paragraphs.

34. Approval of each of the interim contracts is a major federal action that may

significantly affect the quality of the human environment. Therefore, Reclamation should have

prepared an EIS addressing each of the contracts' significant impacts. Because it failed to do

so , .Zeclamation's approval of the interim contracts is arbitrary and capricious, a failure to

proceed in the manner required by law, not supported by substantial evidence, and thus in

violation of NEPA and the APA.

CLAIM FOR RELIEF

Violation of the Central Valley Project Improvement Act — Fai tire to Timely Prepare EIS for Long-Term Contract Renewals}

(Against All Defendants)

The paragraphs set forth above are realleged and incorporated herein by

-fcrence..

36. The APA authorizes federal courts to "compel agency action unlawfully withheld

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or unreasonably delayed." 5 U.S.C. § 706(1).

37. In 1992, with the passage of the CVPIA, COngress required Reclamation to enter

into long-term contracts with the West San Joaquin and San Luis Unit contractors after

completion of"appropriate environmental review," Despite the fact that the CVPIA was passed

n cady 20 years ago, Reclamation has failed to complete its environmental review of the West

San Joaquin Division and San Luis Unit long-term contracts. During Reclamation's long delay,

environmental conditions affected by the contracts have continued to decline with many fish

species on the brink of extinction. Continued delay in preparation of this required

environmental review could cause irreveryible impacts to many of these natural resources and

thus render subsequent review of the contracts' impacts ineffectual or even moot. Reclamation

has unreasonably delayed its completion of the environmental review of the long-term contract

renewal required by the CVPIA.

PRAYER FOR RELIEF

38. As relic!' for the above violations of law, plaintiffs respectfully request the

following:

A declaration that defendants acted contrary to law by issuing a FONSI for the

interim contract renewals based on an EA that is legally inadequate and without

preparing the EIS that is required.

4. An order requiring defendants to withdraw their FONSI for the interim contract

renewals until such time as defendants have prepared an adequate EA and EIS as

required by NEPA and the APA.

• An injunction requiring Reclamation to complete its environmental review ofthe

long-term contracts for the West Sari Joaquin Division and San Luis Unit

contractors in an expeditious manner, as required by the CVPIA and NEPA.

4 An award of costs and reasonable attorney's fees and expenses incurred in the

litigation of this action under the Fiqual Access to Justice Act, 28 U.S.C. section

2412, and any other applicable fee recovery law or doctrine.

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5. Any other relief that this Court deems just and proper.

Dated: April 30, 2012 Respectfully submitted,

/s/ Stephan C. Volker _ STEPHAN C. VOLKER Attorney for Plaintiffs PACIFIC COAST FEDERATION OF FISIIFRIVIEN'S ASSOCIATIONS and SAN FRANCISCO CRAB BOAT OWNERS ASSOCIATION, INC.

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