The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge
Plaintiffs bring this action under the Endangered Species Act, 16 U.S.C. §§ 1531 et seq., and the Administrative Procedures Act, 5 U.S.C. §§ 701 et seq., challenging the issuance of a permit by the United States Army Corps of Engineers*fn1 to Del Norte County and the California Department of Fish and Game to breach the sand bar separating Lake Earl and Lake Talawa from the Pacific Ocean. Before the court are the parties' cross motions for summary judgment. Upon consideration of the motions, the oppositions thereto, and the administrative record, the court concludes that each motion must be granted in part and denied in part.
Lake Earl and Lake Talawa ("Lakes") are two interconnected lakes located several miles north of Crescent City in Del Norte County, California. The Lakes are separated from the Pacific Ocean by a narrow sand bar and together form a coastal lagoon area that is home to several endangered and threatened species, including the tidewater goby, the Oregon silverspot butterfly, the western snowy plover, the Southern Oregon/Northern California Coast ("SONCC") coho salmon, and the California brown pelican. For over 200 years, parties seeking to manipulate the level of water in the Lakes and the surrounding wetlands have periodically breached the sand bar separating the Lakes from the Pacific Ocean. Parties have artificially breached the sand bar (as opposed to a natural breach which occurs when the water level in the Lakes rises to such a height that the sand bar ruptures without any human intervention) for a variety of reasons, including erosion management, flood avoidance, irrigation, and the preservation of existing habitat and wildlife in the Lakes and the surrounding areas. A disagreement about the best time of year and ideal water height for artificial breaching lies at the crux of this case.
Pursuant to the Clean Water Act, 33 U.S.C. § 1251 et seq., and the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq., parties seeking to artificially breach the sand bar must first obtain a permit from the United States Army Corps of Engineers ("Corps"). In 2004, Del Norte County and the California Department of Fish and Game jointly applied to the Corps for a ten-year permit to artificially breach the sand bar when the Lakes are at 8-10 feet above mean sea level*fn2 ("msl"). As part of the permit process, the Corps is required, under the Endangered Species Act ("ESA"), to investigate any possible harm that the proposed action might cause to threatened and endangered species in the Lakes and the surrounding areas.
The ESA requires that the Corps investigate the effects of the proposed breaching action on listed species through consultations with either the National Marine Fisheries Service ("NMFS") or the United States Fish & Wildlife Service ("FWS"). The FWS administers the Endangered Species Act with respect to species under the jurisdiction of the Secretary of the Interior, such as the tidewater goby, the Oregon silverspot butterfly, the California brown pelican and the western snowy plover, while the NMFS administers the Endangered Species Act with respect to species under the jurisdiction of the Secretary of Commerce, such as the SONCC coho salmon. See 50 C.F.R. §§ 17.11, 222.101(a), 223.102, 402.01(b).
The Corps consulted with the NMFS about how the proposed breaching might affect the SONCC coho salmon and its habitat and with the FWS about how the proposed breaching would affect the tidewater goby, the western snowy plover, the California brown pelican, the Oregon silverspot butterfly, and their respective habitats. The NMFS concluded that "the proposed action may affect, but is not likely to adversely affect SONCC coho salmon and their critical habitat." NMFS Administrative Record ("NMFS AR") 2290. The FWS concluded that the proposed breaching "is not likely to jeopardize the continued existence" of any of the listed species and also that the "proposed action would not result in destruction or adverse modification of any proposed or designated critical habitat." FWS Administrative Record ("FWS AR") 192.
Based on these conclusions, the Corps issued a permit ("2005 permit") to Del Norte County and the California Department of Fish and Game to use a bulldozer to artificially breach the sand bar. Specifically, the ten-year permit permits artificial breaching when the water level of the Lakes reaches 8-10 msl between September 1 and February 15, and again on February 15 if the water level is 5 msl.
Plaintiffs, a Del Norte water management company, and several residents of Del Norte County, bring this suit alleging that the Corps issued the 2005 permit in violation of the ESA.
The Endangered Species Act ("ESA") was enacted in order "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species." 16 U.S.C. § 1531(b). Once a species is listed as threatened or endangered, it receives substantial federal protection under the ESA. For example, § 9 of the ESA states that "with respect to any endangered species of fish or wildlife . . . it is unlawful for any person . . . to take any such species," where "take" means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1538(a)(1); 16 U.S.C. § 1532(19). The ESA's protection also extends to the species' habitats as the term "harm" has been construed to "include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." 50 C.F.R. § 17.3.
Federal agencies are subject to the ESA and, under § 7 of the ESA, must "insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species." 16 U.S.C. § 1536 (a)(2). To insure compliance with the ESA, any time a proposed federal agency action "may affect listed species or critical habitat," the agency must engage in either informal consultation or the preparation of a biological assessment.*fn3 50 C.F.R. § 402.14(a). Informal consultation is a "process that includes all discussions, correspondence, etc., between the Service*fn4 and the Federal agency . . . designed to assist the Federal agency in determining whether formal consultation or a conference is required." 50 C.F.R. § 402.13(a). If, after either the informal consultation or the preparation of the biological assessment, the federal agency determines "that the proposed action is not likely to adversely affect any listed species or critical habitat," then the agency's consultation obligations under the ESA are terminated. 50 C.F.R. § 402.14(b)(1). However, if the agency cannot conclude that the proposed action is "not likely to adversely affect" the listed species, then the federal agency must proceed to formal consultation. 50 C.F.R. § 402.12(a).
Formal consultation requires the preparation of a biological opinion as to whether the proposed agency action and its effects are "likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat." 50 C.F.R. § 402.14(h)(3). The biological opinion relies on the "best scientific and commercial data available," to evaluate "the current status of the listed species or critical habitat" and "the effects of the action and [its] cumulative effects on the listed species or critical habitat." 50 C.F.R. §§ 402.14(d), (g)(3), (g)(4). If the Service concludes that the proposed action is not likely to jeopardize or destroy a listed species or adversely modify a critical habitat, then this "no jeopardy biological opinion" must be accompanied by an incidental take*fn5 statement if any taking may occur as a byproduct of the proposed action. 50 C.F.R. §§ 402.14(g)(7), (i)(1).
The incidental take statement details the impact of the proposed action on the species, identifies the reasonable and prudent measures that are necessary to minimize this impact, and outlines the terms and conditions that must be followed in order to minimize the impact of the action on the species. 50 C.F.R. §§ 402.14(i)(i)-(iv). Provided that the federal agency follows these terms and conditions, any incidental take resulting from the agency action is not considered a violation of § 9 of the ESA. 16 U.S.C. § 1536(o)(2). However, if the incidental take that results from the agency action exceeds the amount of take specified in the incidental take statement, the agency must reinitiate formal consultation. 50 C.F.R. § 402.16(a).
The appropriate standard of review for an agency action challenged under the ESA is the Administrative Procedures Act's ("APA") "arbitrary and capricious" standard. Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678, 686 (D.C. Cir. 1982). Under the APA, a reviewing court shall set aside agency action it finds to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A). An agency rule is arbitrary and capricious if
the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). While the court's scope of review is narrow, as it "is not empowered to substitute its judgment for that of the agency," the court must still conduct "a thorough, probing, in-depth review" of the agency's decision. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-16 (1971).
Agency actions are presumed to be valid. See Ethyl Corp. v. EPA, 541 F.2d 1, 31 (D.C. Cir. 1976). As long as an agency considers relevant factors and can articulate a rational connection between the facts found and the choices made, then its decision will be upheld. See State Farm, 463 U.S. at 43; Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989) (holding that agency action will not be reversed absent a clear error of judgment). Moreover, when an agency's action relies on scientific and technical information touching upon the agency's area of expertise, a court is particularly deferential. See Marsh, 490 U.S. at 377; Hüls Am., Inc. v. Browner, 83 F.3d 445, 452 (D.C. Cir. 1996) ("we will give an extreme degree of deference to the agency when it is evaluating scientific data within its technical expertise.") (internal citations and quotations omitted).
When a final agency action is challenged, the court's review is limited to the administrative record and the grounds for decision invoked by the agency. See Camp v. Pitts, 411 U.S. 138, 142 (1973); SEC v. Chenery Corp., 332 U.S. 194, 196 (1947). "Summary judgment is an appropriate procedure for resolving a challenge to a federal agency's administrative decision when review is based upon the administrative record, even though the Court does not employ the standard of review set forth in Rule 56, Fed. R. Civ. P." Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995) (internal citation omitted).
Plaintiffs challenge the Corps' issuance of the 2005 permit on four grounds: 1) the Corps' consultation with the NMFS was arbitrary and capricious; 2) the Corps' consultation with the FWS was arbitrary and capricious; 3) neither the NMFS nor the FWS submitted an appropriate incidental take statement; and 4) the 2005 permit has resulted in the illegal taking of an endangered species. Defendants rejoin that the Corps, FWS, and NMFS fully complied with the ESA's consultation requirements, submitted appropriate incidental take statements, and that there is no illegal taking of an endangered species. The court addresses each of plaintiffs' arguments in turn.
A. The Corps' Consultation with the NMFS
Plaintiffs contend that the Corps' issuance of the 2005 permit was arbitrary and capricious because it relied on a flawed informal consultation with the NMFS about the effects of the proposed breaching on the coho salmon and its habitat. Plaintiffs maintain that the consultation with NMFS was flawed for three reasons: 1) the consultation involved a reversal of prior findings; 2) the consultation was not based on sound science; and 3) the consultation failed to consider relevant facts.
1. The NMFS Reasonably Modified its Prior Findings
Plaintiffs first argue that the NMFS changed its position with respect to the effects of artificial breaching of the sand bar on the coho salmon. Plaintiffs contend that the NMFS consistently found from 1999 through 2005 that breaching the sand bar at 8-10 msl was harmful to the coho salmon. Pls.' Mem. in Supp. of Mot. for Summ. J. ("Pls.' Mem.") 25, 28. Plaintiffs assert that in the informal consultation at issue, the NMFS unjustifiably changed its position to hold that breaching the sand bar at 8-10 msl had "no effect" on the coho salmon. Id. at 25, 28. Defendants do not contest that the NMFS's position changed. Mem. of Law in Supp. of Federal Defs.' Cross-Mot. for Summ. J. and Opp'n to Pls.' Mot for Summ. J. ("Defs.' Mem.") 27. Defendants maintain, however, hat the NMFS reasonably changed its position after receiving new information, including presence/absence surveys and post-breach surveys indicating that coho salmon were not likely to be in the area at the time of the proposed breaching. Id.
"Agencies are free to change course as their expertise and experience may suggest or require, but when they do so they must provide a 'reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored.'" Ramaprakash v. F.A.A., 346 F.3d 1121, 1124-25 (D.C. Cir. 2003) (quoting Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir.1970)); Fund for Animals v. Babbitt, 903 F. Supp. 96, 116 (D.D.C. 1995). "[A]gency action is arbitrary and capricious if it departs from agency precedent without explanation." Ramaprakash, 346 F.3d at 1124. A court "must accord deference to an agency's reasonable interpretation of its own precedents." Global Crossing Telecomm., Inc. v. F.C.C., 259 F.3d 740, 746 (D.C. Cir. 2001).
In 1999, the NMFS stated that artificial breaching at the 8-10 msl "could trap coho juveniles in Lake Earl" and that "information has not surfaced to suggest that any coho trapped would survive the summer or later successfully complete their life cycle if they did survive." NMFS AR 779. These concerns ...