AquAlliance v. U.S. Bureau of Reclamation

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 AQUALLIANCE; CALIFORNIA No. 2:21-cv-01533 WBS DMC SPORTFISHING PROTECTION 13 ALLIANCE; and CALIFORNIA WATER IMPACT NETWORK, 14 ORDER RE: REQUEST FOR Plaintiffs, PRELIMINARY INJUNCTION 15 v. 16 THE UNITED STATES BUREAU OF 17 RECLAIMATION; U.S. DEPARTMENT OF THE INTERIOR; DEB HAALAND, in 18 her official capacity; and DOES 1 - 100, 19 Defendants. 20

22 ----oo0oo---- 23 Before the court is plaintiffs’ motion for a 24 preliminary injunction barring defendants from continuing with a 25 groundwater extraction project in the Sacramento River 26 Valley. (See Pls.’ Mot. for TRO and/or Preliminary Injunction 27 (“Mot.”) (Docket No. 6).) The court held a hearing on the on 28 1 September 9, 2021. 2 I. Factual and Procedural History 3 This case concerns a Voluntary Groundwater Pumping 4 Program (“program”) approved by the United States Bureau of 5 Reclamation (“Reclamation”) seeking to incentivize groundwater 6 pumping in lieu of obtaining water from the Sacramento River. 7 Under the program, Reclamation will provide funding to offset 8 costs to those who obtain water by groundwater pumping rather 9 than by drawing from surface water. 10 On July 7, 2021 Reclamation issued a draft 11 Environmental Assessment, evaluating the impacts of the project, 12 for public comment. After the comment period, Reclamation issued 13 a final Environmental Assessment (“EA”). (See Decl. of James 14 Thomas Brett, Ex. A, Environmental Assessment (Docket No. 9- 15 2).) On August 4, 2021, Reclamation issued a Finding of No 16 Significant Impact (“FONSI”), (see Decl. of Brett, Ex. D, Finding 17 of No Significant Impact (Docket No. 9-5)), determining that no 18 Environmental Impact Statement (“EIS”) was required. 19 Plaintiffs filed their complaint on August 26, 2021, 20 and a Motion for Temporary Restraining Order and/or Preliminary 21 Injunction on September 1, 2021. The motion for temporary 22 restraining order was heard on September 7, 2021 and denied on 23 September 8, 2021. A hearing on the request for a preliminary 24 injunction was held before the undersigned on September 9, 2021. 25 It is anticipated that the case will be finally submitted to the 26 court for decision on the merits, either by cross-motions for 27 summary judgment or after trial on the administrative record, 28 sometime before the December holidays. 1 II. Discussion 2 Injunctive relief is “an extraordinary and drastic 3 remedy, one that should not be granted unless the movant, by a 4 clear showing, carries the burden of persuasion.” Mazurek v. 5 Armstrong, 520 U.S. 968, 972 (1997) (per curiam). In order to 6 obtain a preliminary injunction, the moving party must establish 7 that (1) it is likely to succeed on the merits, (2) it is likely 8 to suffer irreparable harm in the absence of preliminary relief, 9 (3) the balance of equities tips in its favor, and (4) an 10 injunction is in the public interest. Winter v. Nat. Res. Def. 11 Council, Inc., 555 U.S. 7, 20 (2008); Cal. Trucking Ass’n v. 12 Bonta, 996 F.3d 644, 652 (9th Cir. 2021). “A plaintiff must make 13 a showing on all four prongs to obtain a preliminary 14 injunction.” A Woman’s Friend Pregnancy Res. Clinic v. Becerra, 15 901 F.3d 1166, 1167 (9th Cir. 2018) (internal quotation marks and 16 citations omitted). 17 A. Likelihood of Irreparable Harm 18 “Under Winter, plaintiffs must establish that 19 irreparable harm is likely, not just possible, in order to obtain 20 a preliminary injunction.” All. for the Wild Rockies v. 21 Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). The irreparable 22 harm alleged here is that approving and contracting for 23 additional groundwater extractions will result in, among other 24 things, damage to private and public property via land subsidence 25 and aquifer depletion, and harm to habitats of endangered 26 species. (Mot. at 21-22 (Docket No. 6-1).) In order to be 27 entitled to a preliminary injunction, it is not enough that 28 plaintiffs merely allege irreparable harm -- plaintiffs “must 1 demonstrate immediate threatened injury.” Caribbean Marine 2 Servs. Co. v. Baldridge, 844 F. 2d 668, 674 (9th Cir. 1998). For 3 the following reasons, the court concludes that plaintiffs have 4 failed to meet this burden. 5 The court does not expect plaintiffs to be able to 6 predict with scientific exactitude the harm which will result if 7 defendants are not enjoined. But the court does expect more than 8 the kind of vague generalizations and unquantified conclusions 9 presented here. For example, plaintiffs rely on the declarations 10 of Michael Billiou and Kit Custis to support their claim that 11 groundwater pumping will damage property “due to ongoing and 12 worsening land subsidence, and aquifer depletion.” (Mot. at 21- 13 22 (Docket No. 6-1).) However, the best that Billiou has to 14 offer is that he “believes” prior data shows declines in ground 15 surface elevation due to pumping that began in 2010, which is the 16 underlying cause of damage to irrigation infrastructure on his 17 ranch. Yet he provides no specific evidence of a causal link 18 between the pumping and damage, or of the similarity of the past 19 pumping to the current program. (See Decl. of Michael Billiou at 20 2 (Docket No. 6-2).) 21 Further, Billiou expresses concern that prior pumping 22 led to subsidence and the need for a replacement well on his 23 property, but he provides no evidence of how Reclamation’s short- 24 term project would lead to similar problems. (See id. at 3.) 25 Similarly, Custis discusses in detail the effects of prior 26 pumping, but does not even attempt to quantify the predicted 27 effect of the current program. (See Decl. of Kit Custis at 4–7 28 (Docket No. 6-3).) Such generalizations are not enough to 1 demonstrate immediate irreparable harm. 2 Plaintiffs further allege in conclusory terms that 3 groundwater-dependent ecosystems and endangered species are 4 “likely to be harmed” (Mot. at 22 (Docket No. 6-1) (emphasis 5 added)), and Custis expresses concern regarding the adequacy of 6 the monitoring program for groundwater-dependent ecosystems but 7 provides no basis to anticipate any specific harm that may occur 8 to these ecosystems. (See Decl. of Kit Custis at 4–11 (Docket 9 No. 6-3).) Plaintiffs appear to rely on the declaration of 10 Barbara Vlamis to establish irreparable harm to endangered 11 species, but Vlamis simply expresses “grave[ ] concern” about the 12 impact of endangered species without elaborating upon any 13 specific and immediate consequences. (See Decl. of Barbara 14 Vlamis at 3 (Docket No. 6-5).) Again, plaintiffs’ conclusory 15 statements are not sufficient to demonstrate the imminence of the 16 harm to groundwater-dependent ecosystems and endangered species. 17 Plaintiffs claim the project incentivizes groundwater 18 pumping via contracts that will lead to “new historic groundwater 19 lows.” (Mot. at 22 (Docket No. 6-1).) However, plaintiffs do 20 not provide information on the baseline of the groundwater 21 pumping currently occurring, nor do they provide any information 22 on the increase that will result from the program, if any.1 23 Defendants represented during oral argument that the funding will 24 be provided to partially offset the cost of groundwater pumping 25

26 1 The court is cognizant of plaintiffs’ claim that Reclamation itself does not provide a current baseline, but 27 nonetheless it remains the plaintiffs’ burden to demonstrate irreparable harm. 28 1 to program participants. However, because the funding will not 2 cover the entirety of the cost groundwater users will incur, it 3 is unclear to what extent Reclamation’s incentivization efforts 4 will be successful, making the program’s impact speculative at 5 this stage. 6 Finally, plaintiffs are complaining of a harm that is 7 already occurring in the program’s absence. The purpose of a 8 preliminary injunction is to stop or prevent harm that will occur 9 in the absence of preliminary relief between the time of the 10 request and the resolution of the case. The groundwater 11 extraction project does not allow groundwater pumping for the 12 first time; rather, it merely funds an activity that is already 13 occurring. Further, plaintiffs admit that the problem of land 14 subsidence and aquifer depletion is “ongoing,” so there is no 15 showing of any new immediate harm that would occur if an 16 injunction is not granted. (Mot. at 21 (Docket No. 6-1).) 17 Moreover, Reclamation is not committing the alleged 18 harm -- third parties are currently pumping groundwater and will 19 continue do so regardless of the outcome of this program. 20 Indeed, plaintiffs concede that Reclamation has no power to stop 21 landowners from pumping. It is unclear at this stage what 22 effect, if any, Reclamation’s program will have on the amount of 23 groundwater to be pumped. Since the payments to the users of 24 groundwater will not even cover the full additional costs they 25 will incur for pumping groundwater instead of using surface 26 water, it is not even clear that the program will result in any 27 additional pumping of groundwater. That is entirely speculative 28 at this stage. 1 For all of the foregoing reasons, plaintiffs have 2 failed to demonstrate the likelihood of irreparable harm, and for 3 that reason alone the court would be required to deny their 4 request for a preliminary injunction. 5 B. Likelihood of Success on the Merits 6 Even assuming plaintiffs were able to show a likelihood 7 of irreparable harm, they nonetheless fail to show a likelihood 8 of success on the merits. 9 The court reviews plaintiffs’ National Environmental 10 Policy Act (“NEPA”) claims challenging Reclamation’s decision 11 under the Administrative Procedure Act (“APA”). Lands Council v. 12 Powell, 395 F.3d 1019, 1026 (9th Cir. 2005) (reviewing NEPA 13 claims under APA); Ocean Advocs. v. U.S. Army Corps of 14 Eng’rs, 402 F.3d 846, 858 (9th Cir. 2005) (same). Under the APA, 15 5 U.S.C. § 706(2)(A), the reviewing court must set aside agency 16 actions found to be “arbitrary, capricious, an abuse of 17 discretion, or otherwise not in accordance with the law.” See 18 Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 376-77 (1989). 19 An agency action may be deemed arbitrary or capricious 20 if the agency “has relied on factors which Congress has not 21 intended it to consider, entirely failed to consider an important 22 aspect of the problem, offered an explanation for its decision 23 that runs counter to the evidence before the agency, or is so 24 implausible that it could not be ascribed to a difference in view 25 or the product of agency expertise.” Pac. Coast Fed’n of 26 Fishermen’s Ass’ns, Inc. v. Nat’l Marine Fisheries Serv., 265 27 F.3d 1028, 1034 (9th Cir. 2001) (quoting Motor Vehicle Mfrs. 28 1 Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 2 (1983)). 3 The court must ask “whether the agency considered the 4 relevant factors and articulated a rational connection between 5 the facts found and the choice made.” Nat. Res. Def. Council v. 6 U.S. Dep’t of the Interior, 113 F.3d 1121, 1124 (9th Cir. 1997) 7 (internal quotation marks omitted). The court should conduct 8 this review based on the administrative record presented by the 9 agency. See Ctr. for Biological Diversity v. U.S. Fish & 10 Wildlife Serv., 450 F.3d 930, 943 (9th Cir. 2006) (“When 11 reviewing an agency decision, the focal point for judicial review 12 should be the administrative record already in existence, not 13 some new record made initially in the reviewing court.”) 14 (internal quotations and citations omitted). 15 NEPA, which “exists to ensure a process, not particular 16 substantive results,” Hells Canyon Alliance v. U.S. Forest 17 Service, 227 F.3d 1170, 1177 (9th Cir. 2000), imposes additional 18 requirements. Specifically, where a federal agency recommends or 19 reports on “proposals for legislation and other major Federal 20 actions significantly affecting the quality of the human 21 environment,” the agency must include “a detailed statement . . . 22 on (i) the environmental impact of the proposed action.” 42 23 U.S.C. § 4332(2)(C). 24 “Where an EIS is not categorically required, the agency 25 must prepare an Environmental Assessment to determine whether the 26 environmental impact is significant enough to warrant an 27 EIS.” Ocean Advocs., 402 F.3d at 864. If, after preparation of 28 the EA, the agency determines that it is not, the agency must put 1 forth a “convincing statement of reasons [in the form of a FONSI] 2 that explain why the project will impact the environment no more 3 than insignificantly.” Id. (citation omitted); see also 40 4 C.F.R. § 1508.13 (listing requirements for a FONSI). For an 5 agency’s decision to satisfy NEPA, the record must show that the 6 agency took a “hard look” at the project’s potential impact. 7 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 8 (1989). 9 In their motion for a preliminary injunction, 10 Plaintiffs raise six ways in which they contend the EA and FONSI 11 are deficient and therefore inadequate under NEPA. The court 12 addresses each of these in turn. 13 1. Failure to Describe Existing Conditions 14 Plaintiffs first contend that the EA fails to describe 15 current environmental conditions, thereby providing an inadequate 16 baseline against which to measure potential harms attributable to 17 the program. (Mot. at 6-7 (Docket. No. 6-1).) This claim is 18 without merit. 19 The EA includes a proposal to use water years 2014 and 20 2015 as a baseline against which to measure the project’s effects 21 on groundwater levels. (EA at 15-16, 20-21.) Public comments 22 submitted in response to a draft version of the EA do not contest 23 the adequacy of the use of this proposed baseline. (See Decl. of 24 Brett, Ex. B, Comments and Reponses (Docket No. 9-3) (“Comments 25 and Responses”); Decl. Brett, Ex. E Comment Letters (Docket No. 26 9-6).) The EA justifies the use of the 2014 and 2015 years by 27 noting that these water years were “critical drought years” that 28 represented “historic lows.” (EA at 15, 16.) Reclamation 1 contends that the failure to object to this approach results in 2 the waiver of plaintiffs’ ability to raise the argument in this 3 litigation. (Opp. to Pls.’ Motion for TRO at 10-11 (Docket. No. 4 14).) 5 Even assuming that formal waiver does not apply, the EA 6 and FONSI’s omission of a more current baseline may be fairly 7 attributed to Reclamation’s rational opinion that data 8 representing recent historic lows would be adequate for the 9 purposes of this limited project.2 Accordingly, plaintiffs’ 10 challenge to the EA on the basis that it lacks a description of 11 existing groundwater levels does not demonstrate that Reclamation 12 failed to take the requisite hard look at the project’s potential 13 impacts. 14 This conclusion receives additional support from the 15 fact that the project provides incentives for the pumping of 16 60,000 additional acre feet (“AF”) of water, which the EA and 17 FONSI emphasize is a low amount compared with average annual 18 groundwater use (2.25 million AF) and groundwater pumped during 19 dry years (4.5 million AF). (EA at 20; FONSI at 6; see also 20 Comments and Responses at 3 (raising this point in response to 21 public comment).) The FONSI further notes that adverse effects 22 are likely to be brief due to the action’s short term, which runs 23 24 2 One public comment includes a passing reference to 25 current water levels being “below 2014-2015 historic lows.” Comments and Reponses at 1. It is unclear, however, and public 26 comments do not address, whether this differential renders the 27 2014 and 2015 data inadequate for use in this project.

28 1 from August to October 2021.3 (FONSI at 6.) Under these 2 circumstances, Reclamation’s determination that a current and 3 exact baseline was not required to adequately mitigate harm 4 appears reasonable. 5 2. Effects to Third-Party Groundwater Users 6 Plaintiffs next claim that the EA inadequately 7 evaluated the possibility of adverse effects on third-party 8 groundwater users, thereby creating the possibility of 9 “significant adverse effects to third party property.” (Mot. at 10 8 (Docket. No. 6-1).) Specifically, plaintiffs contend that 11 “land subsidence[ ] and impacts to groundwater wells[ ] might 12 occur” as a result of the increased groundwater pumping the 13 program seeks to incentivize. (Id.) This claim also lacks 14 merit. 15 Here, the EA acknowledges these possible impacts to 16 ground wells and possible subsidence, noting rates of subsidence 17 measured in recent decades and expressly attributing this to 18 “groundwater pumping and subsequent consolidation of loose 19 aquifer sediments.” (EA at 19.) The EA further acknowledges 20 that “[e]xtraction of groundwater used in lieu of diverting 21 surface water to make surface water available could decrease 22 groundwater levels, increasing the potential for 23 subsidence.” (Id. at 20.) Nevertheless, the EA also explains 24 that Reclamation will continuously monitor pumping at 25 participating wells to evaluate the impact of additional 26

27 3 A portion of this period has already elapsed, meaning the true project period would be shorter. 28 1 production through a hybrid approach, tracking groundwater levels 2 regionally and at individual wells. (Id.) The EA goes on to 3 explain how, pursuant to the program, Reclamation will suspend 4 individual wells’ participation in the program, and suspend 5 incentive payments accordingly, if local groundwater levels drop 6 below acceptable levels. (Id.) 7 This monitoring plan reflects a considered response on 8 Reclamation’s part to the acknowledged risks posed by additional 9 groundwater pumping, offering “sufficient detail to ensure that 10 environmental consequences have been fairly evaluated,” see S. 11 Fork Band Council of W. Shoshone of Nev. v. U.S. Dep’t of 12 Interior, 588 F.3d 718, 727 (9th Cir. 2009) (citation omitted), 13 and thus withstands “hard look” review as to third-party 14 effects. In seeking to use mitigation measures to soften a 15 proposed action’s impact, “agenc[ies] must provide an assessment 16 of whether the proposed mitigation measures can be effective and 17 whether anticipated environmental impacts can be 18 avoided.” Protect Our Cmtys. Found. v. Jewell, 825 F.3d 571, 582 19 (9th Cir. 2016) (internal quotation and alteration marks 20 omitted). Reclamation has specifically done so here. (See EA at 21 20 (stating that if problems arise due to pumping promoted by the 22 action, “large portions of the production well network will be 23 shut down and not allowed to participate in the voluntary program 24 until the monitoring network recovers”); FONSI at 7 (same).) 25 The EA also notes that this monitoring will occur 26 “prior to, during, and following” pumping. (EA at 6.) That this 27 monitoring will, in part, occur “prior to” participants’ 28 additional groundwater pumping contradicts plaintiffs’ claim that 1 “Reclamation will only consider effects to third parties after 2 they occur.” (Mot. at 9 (Docket. No. 6-1) (emphasis in 3 original).) Given that no contracts have yet been entered into 4 for additional pumping under the program, Reclamation retains the 5 opportunity to follow through on this commitment prior to the 6 commencement of additional pumping -- a commitment it reaffirmed 7 at oral argument –- and as a steward of critical public resources 8 this court expects that it will do so. 9 3. Impacts to Groundwater-Dependent Ecosystems, Hydrology, and Threatened Species 10 11 Plaintiffs next complain that Reclamation used data 12 from the Yuba County Groundwater Sustainability Plan (“Yuba 13 Sustainability Plan”) in determining that the project was 14 unlikely to significantly impact shallow groundwater in the 15 Sacramento River Valley, arguing that the two areas are 16 different. (Mot. at 11 (Docket. No. 6-1).) The EA explains, 17 however, that because a Groundwater Sustainability Plan for the 18 project area has not yet been completed, the Yuba Sustainability 19 Plan provides the most comparable analysis available in light of 20 the two areas’ similarities. (EA at 14.) Under the 21 circumstances, Reclamation’s comparison suffices to constitute a 22 hard look on this point. 23 Plaintiffs also contend that Reclamation failed to take 24 a hard look at whether the program would succeed in its goal of 25 increasing surface water availability by incentivizing the use of 26 additional groundwater in lieu of surface water, or at whether 27 additional groundwater use would result in a temporary decrease 28 1 to surface water flows. At oral argument, however, Reclamation 2 clarified that program contracts would obligate participants to 3 forgo using an amount of surface water equal to the amount of 4 additional groundwater they pump as a condition of receiving 5 incentive payments. Even without such a guarantee, Reclamation 6 could reasonably conclude that additional groundwater pumped due 7 to program incentives would likely achieve this result. (See id. 8 at 5-6; FONSI at 6.) 9 Next, Plaintiffs contend that Reclamation failed to 10 take a hard look at the project’s impact on two species listed as 11 threatened, the Western Yellow-Billed Cuckoo and the Valley 12 Elderberry Longhorn Beetle. (Mot. at 13 (Docket. No. 6- 13 1).) However, the EA addresses both, noting that in both cases 14 agricultural lands on which these species rely will not be 15 impacted by the program, based on Reclamation’s estimation that 16 pumping does not significantly impact shallow groundwater levels 17 in these areas. (EA at 15.) Reclamation’s treatment of these 18 concerns survives “hard look” review. 19 4. Mitigations Measures 20 In its EA, Reclamation includes groundwater monitoring 21 as a mitigation measure to evaluate performance. (See id. at 22 20.) Reclamation is not required to include a completely 23 developed mitigation plan as part of its program. See Robertson 24 v. Methow Valley Citizens Council, 490 U.S. 332, 352-53 (1989). 25 Rather, a “reasonably thorough discussion of mitigation measures” 26 is enough to satisfy the “hard look” standard. See City of 27 Carmel-by-the-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1154 28 (9th Cir. 1997) (“Mitigation must be discussed in sufficient 1 detail to ensure that environmental consequences have been fairly 2 evaluated.”). 3 Plaintiffs claim the mitigation measure lacks data 4 demonstrating that it will be effective in avoiding potentially 5 adverse impacts. (See Mot. at 16 (Docket No. 6-1).) Reclamation 6 does plan to consider analytical data provided by a regional 7 groundwater monitoring network to evaluate performance in 8 comparison to the baseline data from 2014 and 2015. (See EA at 9 6, 20-21.) Based on this data, if groundwater drops below 10 expected levels, Reclamation will shut down portions of the 11 production well network until the network performs consistently 12 with expectations. (See id. at 6, 20.) Reclamation’s use of 13 data provided by the regional networks demonstrates the informed 14 nature of Reclamation’s program. 15 Plaintiffs next claim Reclamation omits consideration 16 of long-term damage. (Mot. at 16 (Docket No. 6-1).) However, 17 Reclamation’s mitigation plan accounts for the need to stop any 18 potential long-term damage by shutting down portions of the 19 production well network that are not meeting expectations or 20 impacting third-party wells. (See EA at 20-21.) Further, the 21 monitoring will concur “prior to, during, and following” the 22 pumping. (See id. at 6.) Reclamation’s plan for monitoring 23 demonstrates that it considered the long-term effects of the 24 program. 25 Plaintiffs also contend that Reclamation impermissibly 26 fails to prescribe monitoring of third-party wells, groundwater- 27 dependent ecosystems, surface waters, or threatened species. 28 However, the EA states Reclamation will receive and consider 1 complaints regarding third-party impacts. (See id. at 21.) 2 Plaintiffs’ contention, if correct, would require Reclamation to 3 examine the program’s impact on an extensive list of things that 4 may be impacted, but this would be unfeasible, especially for a 5 short-term project. An indirect change to the environment is not 6 enough to require a “hard look” at every aspect. See Native 7 Ecosystems Council v. Weldon, 697 F.3d 1043, 1053 (9th Cir. 2012) 8 (quoting Tri-Valley CAREs v. U.S. Dep’t of Energy, 671 F.3d 1113, 9 1129 (9th Cir. 2012)) (“We do not require the agency ‘to compile 10 an exhaustive examination of each and every tangential event that 11 could impact the local environment.’”). Here, Reclamation 12 appropriately considered a mitigation plan to overcome effects of 13 the program. 14 5. Greenhouse Gas Emissions 15 Plaintiffs also claim Reclamation failed to take a hard 16 look at effects of greenhouse gas emissions resulting from the 17 program. However, Reclamation’s EA explicitly lists the 18 pollutants that are emitted by groundwater pumping. (See EA at 19 9-10.) Further, Reclamation relies on data regarding the 20 greenhouse gas emissions to determine the environmental impact 21 and concludes that emissions would not be significant. (See id. 22 at 10-11.) Reclamation also ensures the program’s compliance 23 with local rules and regulations concerning air quality and 24 greenhouse gas emissions. (See id.) Reclamation’s inclusion of 25 these items demonstrates that it took a hard look at greenhouse 26 gas emissions. 27 6. Cumulative Effects 28 Lastly, plaintiffs argue that Reclamation fails to 1 consider any cumulative effects the program may have. Yet, 2 Reclamation examined the groundwater pumping already occurring in 3 the region to determine cumulative effects. The proposed pumping 4 was found to be insignificant relative to the total groundwater 5 pumping in the area, leading to no significant cumulative effect. 6 (See id. at 20, 22-23.) Under these circumstances, Reclamation 7 adequately considered the cumulative effect of the program. 8 For the foregoing reasons, plaintiffs have not met 9 their burden of showing a likelihood of success on the merits, 10 and for that additional reason their request for preliminary 11 injunctive relief must be denied. 12 C. Balance of Equities and Public Interest 13 When the government is a party, the balance of equities 14 and public interest factors merge. Drakes Bay Oyster Co. v. 15 Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (citing Nken v. 16 Holder, 556 U.S. 418, 435 (2009)). To determine the balance of 17 equities, the court must “balance the interests of all parties 18 and weigh the damage to each.” Stormans, Inc. v. Selecky, 586 19 F.3d 1109, 1138 (9th Cir. 2009) (citation omitted). Here, both 20 sides seek to preserve important environmental resources, 21 demonstrating a strong public interest, but propose different 22 means of achieving those interests. 23 As discussed above, the harm that plaintiffs allege 24 will occur to property, groundwater-dependent ecosystems, 25 threatened species, and the water supply, absent injunctive 26 relief, is largely speculative. On the other side, Reclamation 27 is attempting to deal as best it can with the critical problem of 28 too little water to meet the essential needs of all of the users 1 in the Sacramento River Valley. In addressing that problem, 2 Reclamation seeks to achieve a more balanced use of surface and 3 groundwater. As Reclamation explained in the EA, the FONSI, and 4 at oral argument, the benefits of preserving available surface 5 water are many and include ensuring availability of drinking 6 water for the public, water for migratory birds, fresh water to 7 repel saltwater intrusions into the Sacramento River Delta, and 8 cold water to aid the survival of salmon during upcoming seasonal 9 runs.4 (See EA at 2; FONSI at 1; Opp. at 2 (Docket No. 14).) 10 Reclamation’s proposal appears to be in the public interest. 11 It also appears to be in the best interest of the 12 public to implement the program as soon as possible in order to 13 reduce the amount of surface water being used during a period of 14 serious drought. Because Reclamation’s program is only in effect 15 from August to October, 2021 -- a portion of which has already 16 elapsed, with no implementation thus far -- further delay risks 17 entirely precluding the project’s implementation, and therefore 18 its expected beneficial impact. On balance, given the project’s 19 short time frame -- now effectively from September to October -- 20 and the need for increased surface water availability, the 21 balance of equities and public interest appear to weigh against 22 the issuance of an injunction. 23

24 4 As noted above, project contracts will obligate participants to forgo use of surface waters in an amount equal to 25 the additional groundwater they pump, ensuring that additional pumping done under the project will result in reduced surface 26 water use. In other words, to the extent that participants pump 27 additional ground water pursuant to the project, Reclamation will achieve its stated goal of increasing surface water availability. 28 eee DE OR III III III NE I OS EI OSE OOD EE

1 Because plaintiffs have not met their burden on any of 2 the Winter injunctive relief factors, IT IS HEREBY ORDERED that 3 Plaintiffs’ Motion for Preliminary Injunction (Docket No. 6) be, 4 and the same hereby is, DENIED. 5 | Dated: September 14, 2021 Aitteom th Ld. be—~ WILLIAM B. SHUBB 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19