Opinion
2:24-cv-06854-SPG-AS
12-09-2024
SAN LUIS OBISPO COASTKEEPER, LOS PADRES FORESTWATCH, CALIFORNIA COASTKEEPER ALLIANCE, and THE ECOLOGICAL RIGHTS FOUNDATION, Plaintiffs, v. COUNTY OF SAN LUIS OBISPO, Defendant.
PRELIMINARY INJUNCTION ORDER
HON. SHERILYN PEACE GARNETT UNITED STATES DISTRICT JUDGE
On August 17, 2024, Plaintiffs San Luis Obispo Coastkeeper, Los Padres Forestwatch, California Coastkeeper Alliance, and Ecological Rights Foundation (“Plaintiffs”) filed a Motion for Preliminary Injunction (ECF No. 13 (“Motion”)), which came on for hearing before this Court on October 2, 2024. The Court granted, in part, Plaintiffs' Motion on November 27, 2024. See (ECF No. 54). In light of the ruling, and pursuant to Federal Rule of Civil Procedure 65 and the inherent equitable powers of the Court, the Court hereby ORDERS Defendant County of San Luis Obispo (“Defendant” or “the County”) to comply with the following:
1. By no later than December 23, 2024, the County shall submit a proposed plan for releasing flows from Lopez Dam into lower Arroyo Grande Creek for the 2024/2025 water year, i.e., from December 1, 2024, through September 30, 2025, (“Proposed Lopez Dam Flow Release Plan”) to the National Marine Fisheries Service (“NMFS”), U.S. Fish and Wildlife Service (“USFWS”), the Plaintiffs, and the Court. The County shall request NMFS and USFWS review and comment upon the Proposed Lopez Dam Flow Release Plan and specifically request that NMFS and USFWS provide their recommendations concerning flow releases from Lopez Dam for the 2024/2025 water year. In response to the County's proposed plan, Plaintiffs shall submit additional recommendations or suggestions, if any, to NMFS and USFWS for review. The County's Proposed Lopez Dam Flow Release Plan shall provide for one of the following two options for flow releases (the County's plan may propose both options as under consideration with a final choice as to which option to implement being deferred until the time to commence plan implementation):
(a) Option 1: the County shall calculate and release the volume of water from Lopez Dam that would be sufficient to create a minimum depth of 0.7 feet over 25% of all critical riffle cross-sections and at least 10% of
the contiguous width for each critical riffle as identified in Stillwater (2022) for at least 24 hours and such longer duration as shown by experts selected and retained by the County to be necessary to provide Steelhead with a sufficient migratory timeframe window as would reasonably be calculated to allow Steelhead time to migrate from the ocean to areas throughout the Arroyo Grande Creek watershed that are open to anadromy. This timeframe shall be calculated taking into account the reasonable time needed for Steelhead to transit from the ocean to locations where there is still suitable Steelhead spawning habitat in Arroyo Grande Creek given the swimming speed of Steelhead and other factors that would influence their migratory behavior.
(b) At the end of the pulse flow periods described above, the County may gradually reduce Lopez Dam flow releases by an hourly amount that would be representative of natural streamflow rescission rates in Arroyo Grande Creek, which, in the absence of any more definitive watershed specific data, the County can assume to be that which would reduce depth in the most Steelhead restrictive of Arroyo Grande Creek's critical riffles by no more than 1 inch per hour.
(c) Option 2: in the event that the County is unable to develop Option 1 due to any technical infeasibilities that arise or otherwise elects not to implement Option 1, it shall implement at least the following cubic feet per second (“cfs”) releases of flow from Lopez Dam:
Schedule of Pulse Flow Releases from Lopez Dam to Be Implemented During December 1 to June 30 Migration Season
Dry Water Year
Normal Water Year
Wet Water Year
1 managed release
2 managed releases
2 managed releases
20 cfs - 1 day*
20 cfs - 1 day
30 cfs - 1 day
10 cfs-3 days
10 cfs-3 days
50 cfs-1 day
40 cfs - 1 day
30 cfs - 1 day
20 cfs - 1 day 10 cfs - 1 day
* 1 day one 24-hour period.
From January 7, 2025 to June 30, 2025, and from December 1 to June 30 in any subsequent years during which this Preliminary Injunction remains in place, these pulse flows shall be triggered when two predicate events have occurred: the sandbar berm at the mouth of Arroyo Grande Creek has been naturally breached such that Arroyo Grande Creek is connected to the ocean, and streamflows at the Arroyo Grande gage (USGS 11141500) have equaled or exceeded 100 cfs. Such pulse flows shall occur on no fewer than the number of managed releases set forth in the table above during the applicable water year type.
At the end of the pulse flow periods listed above, the County may gradually reduce Lopez Dam flow releases by no more than 0.5 cfs per 24-hour period until the County has reduced Lopez Dam flow releases to the applicable Base Flow level set forth below.
Schedule of Base Flow' Releases from Lopez Dam
Dry Water Year
Normal Water Year
Wet Water Year
5.9 cfs
7.9 cfs
7.9 cfs
At all times while this Preliminary Injunction remains in effect, the County shall release at least these Base Flow amounts from Lopez Dam. For purposes of this order, a Dry Water Year shall mean a water year in which Lopez Reservoir storage is less than 20,000 acre-feet of water on December 1 of that water year, a Normal Water Year shall mean a water year in which Lopez Reservoir storage equals or exceeds 20,000 acre-feet of water but is less than 40,000 acre-feet of water on December 1 of that water year, and a Wet Water Year shall mean a water year in which Lopez Reservoir storage equals or exceeds 40,000 acre-feet of water on December 1 of that water year.
2. By no later than January 8, 2025, the County shall adopt a Final Lopez Dam Flow Release Plan to govern interim releases of flow from Lopez Dam for the 2024/2025 water year. The Final Plan shall specify all federal or state regulatory approvals (hereinafter, “regulatory approvals”) necessary to implement the Plan. The Final Plan must also outline a timely schedule for any necessary steps to obtain such regulatory approvals for implementation of the Plan. In adopting the Final Lopez Dam Flow Release Plan, the County shall consider any comments and recommendations on revisions to the Proposed Lopez Dam Flow Release Plan provided by NMFS, USFWS, or the Plaintiffs. In adopting its Final Plan, the County shall amend its Final Lopez Dam Flow Release Plan to incorporate any NMFS recommended revisions to the Plan, including any of Plaintiffs' recommendations that NMFS endorses, to the extent that the recommended revisions are not inconsistent with any recommendations by USFWS. In the event that NMFS and USFWS provide written conflicting recommendations concerning flow releases from Lopez Dam and the agencies do not subsequently reconcile their conflicting recommendations, the County shall not be required to make any revisions to its Final Lopez Dam Flow Release Plan.
3. By no later than January 15, 2025, the County shall commence implementing the Final Lopez Dam Flow Release Plan and shall continue to implement the Plan (as it may be modified pursuant to paragraphs 7 and 8) throughout the duration of this Preliminary Injunction.
The County must, at minimum, commence implementation of the Flow Release Plan by January 15, 2025, to the extent that commencing implementation does not unlawfully violate applicable regulations. The County shall file a status report as soon as it is aware of applicable regulations that prohibit it from commencing implementation of the Flow Release Plan, so the Court may adjust the implementation deadline, if need be. The County shall also make all diligent efforts, in good faith, to obtain any necessary regulatory approvals in a timely manner to implement the Plan and shall promptly apprise the Court about the status of obtaining necessary regulatory approvals.
4. By no later than January 21, 2025, the County shall develop and submit to NMFS, the USFWS, the Plaintiffs, and the Court a proposed plan for a comprehensive study of the effect of implementation of the Final Lopez Dam Flow Release Plan on Steelhead in Arroyo Grande Creek (“Proposed Steelhead Monitoring Plan”). The Proposed Plan shall include studying, inter alia, how the County's Lopez Dam flow releases are impacting Steelhead passage conditions (upstream and downstream) at the known critical riffles in Arroyo Grande Creek and actual SCCC Steelhead migration behavior (such as timing of entry into the Creek from the ocean and upstream Steelhead passage to spawning habitats in the Creek and its tributaries). The study shall be sufficient to provide information for refinement of the County's HCP by pointing to the need for potential changes to, or refinement of, the County's flow releases from Lopez Dam. The Proposed Steelhead Monitoring Plan shall incorporate the Steelhead monitoring strategies outlined in NMFS's 2013 Recovery Plan for Steelhead, including establishing counting and lifecycle monitoring stations at these locations: Creek crossings of Highway 1, Highway 101, and Lopez Drive. The Proposed Plan shall include a schedule for implementation of the study with the study commencing no later than February 3, 2025. The County shall request NMFS and USFWS review and comment upon the Proposed Steelhead Monitoring Plan and specifically request that NMFS and USFWS provide recommendations concerning monitoring the effects of flow releases from Lopez Dam on Steelhead for the 2024/2025 water year. In response to the County's proposed plan, Plaintiffs shall submit additional recommendations or suggestions, if any, to NMFS and USFWS for review.
5. By no later than February 5, 2025, the County shall adopt a Final Steelhead Monitoring Plan to govern monitoring the effects of flow releases from Lopez Dam on Steelhead for the 2024/2025 water year. The Final Plan shall specify all regulatory approvals necessary to implement the Plan. The Final Plan must also outline a timely schedule for any necessary steps to obtain such regulatory approvals for implementation of the Plan. In adopting the Final Steelhead Monitoring Plan, the County shall consider any comments and recommendations on revisions to the Plan provided by NMFS, USFWS, or the Plaintiffs. In adopting its Final Plan, the County shall amend its Proposed Steelhead Monitoring Plan to incorporate any NMFS, or NMFS and USFWS collectively, recommended revisions to the Plan, including any of Plaintiffs' recommendations that NMFS endorses. 6. By no later than February 10, 2025, the County shall commence implementing the Final Steelhead Monitoring Plan and shall continue to implement the Plan until September 30, 2025.
7. By no later than October 30, 2025, the County shall develop and submit a comprehensive report to NMFS, USFWS, the Plaintiffs, and the Court concerning the results of the County's implementation of the Final Steelhead Monitoring Plan (“Steelhead Monitoring Report”). The Report shall include the County's findings concerning the effects of its Lopez Dam flow releases on Steelhead and other listed species and recommendations for any revisions to the Final Lopez Dam Flow Release Plan necessary to avoid take of Steelhead in ensuing water years. The County shall request NMFS and USFWS comments on the Steelhead Monitoring Report and that NMFS and USFWS indicate whether they have any recommendations for changes to the Final Lopez Dam Flow Release Plan.
8. By no later than November 30, 2025, the County shall amend the Final Lopez Dam Flow Release Plan to reflect any changes to Lopez Dam flow releases that the County has deemed warranted based on the study results set forth in its Steelhead Monitoring Report or that NMFS, or NMFS and USFWS collectively, have recommended. In no case shall the County modify the Final Lopez Dam Flow Release Plan to provide for flow releases less protective of Steelhead than recommended by NMFS.
9. The County shall continue to implement the Final Lopez Dam Flow Release Plan developed, pursuant to paragraph 8, throughout the duration of this preliminary injunction.
10. Commencing on December 17, 2024, and continuing throughout the duration of this preliminary injunction, the County shall regularly monitor and as necessary clear any debris or blockages from the double arch culvert at Biddle Park access road. Specifically, the County shall inspect the culvert at least once every two weeks during this time period and following any rain event equaling or exceeding 0.25 inches in a 24-hour period and remove any debris or blockages from the culvert.
11. By no later than March 30, 2025, the County shall develop and submit to NMFS, USFWS, the Plaintiffs, and the Court a proposed plan for installing a fish screen on the spillway at Lopez Dam to prevent non-native species that prey on and/or compete with Steelhead from escaping Lopez Lake into downstream Steelhead habitat in Arroyo Grande Creek (“Spillway Fish Screen Plan”). The County shall include a schedule in the Proposed Plan for installing the proposed fish screen. The County shall request NMFS and USFWS review and comment upon the Proposed Spillway Fish Screen Plan and specifically request that NMFS and USFWS provide recommendations concerning implementation of a spillway fish screen. In response to the County's proposed plan, Plaintiffs shall submit additional recommendations or suggestions, if any, to NMFS and USFWS for review.
12. By no later than April 30, 2025, the County shall adopt a Final Spillway Fish Screen Plan for installing a fish screen on the spillway at Lopez Dam to prevent non-native species that prey on and/or compete with Steelhead from escaping Lopez Lake into downstream Steelhead habitat in Arroyo Grande Creek. In adopting the Final Spillway Fish Screen Plan, the County shall consider any comments and recommendations on revisions to the Plan provided by NMFS, USFWS, or the Plaintiffs. The Final Plan shall specify all regulatory approvals necessary to implement the Plan. The Final Plan must also outline a timely schedule for any necessary steps to obtain such regulatory approvals for implementation of the Plan. In adopting its Final Plan, the County shall amend its Proposed Spillway Fish Screen Plan to incorporate any NMFS and USFWS recommended revisions to the Plan, including any of Plaintiffs' recommendations that NMFS endorses.
13. The County shall implement the Final Spillway Fish Screen Plan as soon as fish screen installation is feasible given Creek flow, weather conditions, compliance with applicable contracting requirements (provided that the County shall pursue entering into effective and timely contracts in good faith), and the issuance of any necessary regulatory approvals.
14. By no later than May 30, 2025, the County shall develop and submit to NMFS, USFWS, the Plaintiffs, and the Court a proposed plan for removal or modification of the specified Steelhead passage barriers in lower Arroyo Grande Creek listed in Attachment 1 to this Order (“Proposed Steelhead Passage Barriers Plan”). The Plan shall specify any necessary steps for obtaining any needed regulatory approvals or access agreements for implementation of the Plan. The Plan shall further provide for a schedule (including appropriate interim milestones) to complete implementation of steelhead passage barrier removal or modification. The County shall request NMFS and USFWS review and comment upon the Proposed Steelhead Passage Barriers Plan and specifically request that NMFS and USFWS provide recommendations concerning removal or modification of Steelhead passage barriers in Arroyo Grande Creek. In response to the County's proposed plan, Plaintiffs shall submit additional recommendations or suggestions, if any, to NMFS and USFWS for review.
15. By no later than June 30, 2025, the County shall adopt a Final Steelhead Passage Barriers Plan for removal or modification of the specified Steelhead passage barriers in lower Arroyo Grande Creek listed in Attachment 1 to this Order and owned, operated, and/or maintained by the County. In adopting the Final Steelhead Passage Barriers Plan, the County shall consider any comments and recommendations on revisions to the Plan provided by NMFS, USFWS, or the Plaintiffs. In adopting its Final Plan, the County shall amend its Proposed Steelhead Passage Barriers Plan to incorporate any NMFS and USFWS recommended revisions to the Plan, including any of Plaintiffs' recommendations that NMFS endorses.
16. The County shall implement the Final Steelhead Passage Barriers Plan according to the schedule set forth in the Final Plan.
17. By no later than March 3, 2025, the County shall develop and submit to NMFS, USFWS, the Plaintiffs, and the Court a proposed plan for implementing appropriate best management practices to reduce sediment loading into tributaries to Arroyo Grande Creek (“BMP Plan”). In developing the Proposed Plan, the County shall consider such sediment loading reduction BMP measures as installing sediment fences, jute netting, planting and maintaining vegetation, and constructing settling basins (detention ponds). The Proposed Plan shall include a schedule for implementation of the specified BMP measures. The County shall request NMFS and USFWS review and comment upon the Proposed BMP Plan and specifically request that NMFS and USFWS provide recommendations concerning BMP measures to reduce sediment loading to Arroyo Grande Creek. In response to the County's proposed plan, Plaintiffs shall submit additional recommendations or suggestions, if any, to NMFS and USFWS for review.
18. By no later than March 31, 2025, the County shall adopt a Final BMP Plan for implementing appropriate best management practices to reduce sediment loading into tributaries to Arroyo Grande Creek. In adopting the Final BMP Plan, the County shall consider any comments and recommendations on revisions to the Plan provided by NMFS, USFWS, or the Plaintiffs. In adopting its Final Plan, the County shall amend its Proposed BMP Plan to incorporate any NMFS and USFWS recommended revisions to the Plan, including any of Plaintiffs' recommendations that NMFS endorses. The Final Plan shall specify all regulatory approvals necessary or access agreements to implement the Plan. The Final Plan must also outline a timely schedule for any necessary steps to obtain such regulatory approvals or access agreements for implementation of the Plan.
19. The County shall implement the Final BMP Plan according to the schedule set forth in the Final Plan.
20. By no later than January 30, 2025, the County shall develop and submit to NMFS, the Plaintiffs, and the Court a proposed plan for completing a thorough study of means to secure volitional Steelhead passage past Lopez Dam into upper Arroyo Grande Creek (“Proposed Steelhead Volitional Passage Study Plan”). The County shall include in the plan a schedule for completing its study of feasibility of alternative means to secure volitional Steelhead passage past Lopez Dam. The County shall request NMFS review and comment upon the Proposed Steelhead Volitional Passage Study Plan and specifically request that NMFS provide its recommendations concerning evaluating volitional Steelhead Passage past Lopez Dam. In response to the County's proposed plan, Plaintiffs shall submit additional recommendations or suggestions, if any, to NMFS for review.
21. By no later than February 28, 2025, the County shall adopt a Final Steelhead Volitional Passage Study Plan to assess the feasibility of volitional Steelhead passage past Lopez Dam into upper Arroyo Grande Creek. In adopting the Final Steelhead Volitional Passage Study Plan, the County shall consider any comments and recommendations on revisions to the Plan provided by NMFS or the Plaintiffs. In adopting its Final Plan, the County shall amend its Proposed Steelhead Volitional Passage Study Plan to incorporate any NMFS recommended revisions to the Plan, including any of Plaintiffs' recommendations that NMFS endorses.
22. The County shall implement the Final Steelhead Volitional Passage Study Plan according to the schedule set forth in the Final Plan. In addition, the County shall thereafter implement one of the feasible alternatives identified in the Final Steelhead Volitional Passage Study according to the schedule set forth in the Final Plan, taking into consideration any necessary steps for obtaining any needed regulatory approvals to implement volitional Steelhead passage past the present location of Lopez Dam.
23. The County shall thoroughly and expeditiously develop the HCP and ESA § 10 incidental take permit applications for operation of the Project. The County shall respond promptly and thoroughly to requests for information from NMFS and USFWS that the agencies indicate they need to review and consider the County's HCP and incidental take permit applications.
24. By no later than October 1, 2025, submit complete applications (ready for the institution of environmental review under the National Environmental Policy Act and California Environmental Quality Act) for ESA § 10 incidental take permits to NMFS and USFWS for operation and maintenance of the Project. These applications shall include proposals for volitional Steelhead passage to the upper Arroyo Grande Creek watershed above Lopez Dam and otherwise minimizing take of Steelhead consistent with ESA directives to include reasonable and prudent measures for reducing take of listed species in any authorization for species take, appropriate monitoring of compliance with ESA § 10 permit terms and conditions, and adaptive management to alter HCP implementation as needed to avoid jeopardy to survival and recovery of Steelhead or take of Steelhead in excess of ESA § 10 incidental take authorization.
25. By no later than March 3, 2025, the County shall develop and submit to NMFS, USFWS, the Plaintiffs, and the Court a proposed plan for a habitat restoration project for Arroyo Grande Creek that will offset take of Steelhead (“Proposed Habitat Restoration Plan”). The Proposed Habitat Restoration Plan shall include beneficial components such as (a) placement of gravel substrate into the Arroyo Grande Creek channel bed suitable for Steelhead spawning, (b) planting of new riparian vegetation that provides shade canopy to keep Arroyo Grande Creek water temperatures low and within suitable range for Steelhead and reduces sediment loading to Arroyo Grande Creek, and (c) addition of large woody material in the Creek that provides suitable stream geomorphology for Steelhead habitat needs. The Plan shall also specify performance of the steps needed to obtain and comply with all necessary regulatory permits and authorizations to implement the Plan. The Plan shall include a schedule for implementation of these restoration measures. The County shall request NMFS and USFWS review and comment upon the Proposed Habitat Restoration Plan and specifically request that NMFS and USFWS provide recommendations concerning Arroyo Grande Creek habitat restoration. In response to the County's proposed plan, Plaintiffs shall submit additional recommendations or suggestions, if any, to NMFS and USFWS for review.
26. By no later than March 31, 2025, the County shall adopt a Final Habitat Restoration Plan for a habitat restoration project for Arroyo Grande Creek that will offset take or Steelhead. In adopting the Final Habitat Restoration Plan, the County shall consider any comments and recommendations on revisions to the Plan provided by NMFS, USFWS, or the Plaintiffs. In adopting its Final Plan, the County shall amend its Proposed Habitat Restoration Plan to incorporate any NMFS or USFWS recommended revisions to the Plan, including any of Plaintiffs' recommendations that NMFS endorses.
27. The County shall implement the Final Habitat Restoration Plan according to the schedule set forth in the Final Plan.
28. By no later than March 30, 2025, the County shall develop and submit to NMFS, USFWS, the Plaintiffs, and the Court a proposed plan for removal of Steelhead competitor and predator non-native species from Arroyo Grande Creek (“Predator Removal Plan”). The County shall include the measures for controlling Steelhead predators and competitors recommended in NMFS's 2013 Steelhead Recovery Plan, including development and implementation of a watershed-wide plan to assess the impacts of non-native species and develop control measures, a non-native species monitoring program, and a public educational program on nonnative species impacts. The Predator Removal Plan shall include a schedule for implementation. The County shall request NMFS and USFWS review and comment upon the Predator Removal Plan, and specifically request that NMFS and USFWS provide recommendations concerning measures to control Steelhead predators and competitors. In response to the County's proposed plan, Plaintiffs shall submit additional recommendations or suggestions, if any, to NMFS and USFWS for review.
29. By no later than April 30, 2025, the County shall adopt a Final Predator Removal Plan to remove Steelhead competitor and predator non-native species from Arroyo Grande Creek. In adopting the Final Predator Removal Plan, the County shall consider any comments and recommendations on revisions to the Plan provided by NMFS, USFWS, or the Plaintiffs. In adopting its Final Plan, the County shall amend its Proposed Predator Removal Plan to incorporate any NMFS or USFWS recommended revisions to the Plan, including any of Plaintiffs' recommendations that NMFS endorses. The Final Plan shall specify any necessary steps for obtaining any needed regulatory approvals for implementation of the Predator Removal Plan, and the County shall diligently and in good faith pursue those steps.
30. The County shall implement the Predator Removal Plan according to the schedule set forth in the Final Predator Removal Plan provided the County has acquired any necessary regulatory approvals to implement the Plan.
This Preliminary Injunction shall remain in effect until entry of a final judgment on the merits, unless otherwise subsequently ordered.
IT IS SO ORDERED.
ATTACHMENT 1
Barrier
Location
Arroyo Grande Creek
1. Biddle Park double
Biddle Park access road crossing over Arroyo Grande arch culvertCreek.
2. Abandoned dam and diversion footings
At or about stream mile 11.22 from confluence with ocean.
3. “S” Rip-rap Dam
At or about stream mile 9.31 from confluence with ocean. Downstream from Talley Fanns Rd crossing and upstream of former Cecchetti Rd crossing (washed out) over Arroyo Grande Creek.
4. Concrete Dam
At or about stream mile 5.82 from confluence with ocean. Downstream from confluence of Tar Spring Creek with Arroyo Grande Creek, and upstream of Strother Park.
5. Rip-rap Dam
About 2,000 feet upstream of Arroyo Grande stream gage station at mile 5.35 from confluence with ocean. Downstream from Strother Park.
6. Two concrete dams
Adjacent to Woodland Drive, upstream from Arroyo Grande Creek confluence with Los Berros Creek. Located at or about mile 2.88 from confluence with ocean and about 0.5 miles downstream from Fair Oaks Crossing.
Los Berros Creek
7. Grade Control Structured
Upstream of confluence with Arroyo Grande Creek and ownstream of Valley Road crossing.
8. Los Berros double culvert
Crossing over Los Berros Creek at 1950 Los Berros Road at the intersection of Los Berros Creek Road.