The Yuba County Water Agency ("YCWA") today delivered a 60-day notice of intent to sue to the National Marine Fisheries Service ("NMFS"), also known as NOAA Fisheries, and the U.S. Army Corps of Engineers ("Corps"). The letter declares that these agencies have violated the Endangered Species Act ("ESA"), the Administrative Procedure Act ("APA"), and the National Environmental Policy Act ("NEPA"). The violations stem from the issuance and intended implementation of a 2012 biological opinion for the operation and maintenance of Englebright Dam and Reservoir and Daguerre Point Dam on the Yuba River.
ESA issues on the Yuba River have been brewing for several years and have apparently reached a boil. An earlier 2007 biological opinion issued by NMFS concluded that the operations of Englebright and Daguerre dams would not jeopardize the Central Valley spring-run Chinook salmon, Central Valley steelhead, and southern distinct population segment of the North American green sturgeon. The 2007 BiOp was challenged as insufficiently protective by environmental groups. In July 2010, the United States District Court for the Eastern District of California (J. Karlton) ruled that NMFS had not supported its conclusions and invalidated the 2007 BiOp, sending NMFS back to the drawing board to prepare a new one. (South Yuba River Citizens League v. NMFS, 723 F.Supp.2d 1247)
NMFS issued the new BiOp in February of 2012. In the 2012 BiOp, NMFS reversed course and concluded that the proposed operations of Englebright and Daguerre would jeopardize the listed species and adversely modify their critical habitat. Consequently, to comply with the ESA, the 2012 BiOp imposed requirements known in ESA parlance as reasonable and prudent alternatives ("RPA"), ostensibly to offset the jeopardizing effects of the action. The RPA was extensive. A separate press release and Frequently Asked Questions pamphlet distributed by YCWA indicate that the cost of implementing the RPA could be as high as $1 billion. YCWA's press release and letter also fault NMFS for failing to adequately involve affected water users on the Yuba River and the Corps in the ESA consultation.
YCWA's 60-day notice letter states that the 2012 biological opinion's fundamental flaw is that it treats as effects of the proposed action numerous conditions and factors that are actually part of the environmental baseline. Under the ESA regulations, an action agency may be held accountable only for effects caused by the discretionary portions of its proposed action. Effects of the action therefore, do not include non-discretionary actions the agency must take because of prior legal, contractual, or other requirements. Effects of the action also can not include the effects of other factors or actions that are not caused by agency's proposed action. For example, the existence of a dam authorized by Congress and constructed years before the ESA was passed may impede salmonid passage upstream, but the existence of the dam and the effects of its existence (e.g., foreclosing access to upstream spawning grounds) are not effects of the action.
The ESA requires that a 60-day notice be delivered to the agencies prior to filing a citizen suit to enable the agencies to remedy their violations without court intervention. In its press release, however, YCWA indicates that it still seeks and hopes to cooperatively work with NMFS and the Corps to resolve these issues outside of the courthouse. Time will tell if such efforts are fruitful.
YCWA's letter, press release, and FAQ can be viewed by clicking the following links:
60-day notice letter
YCWA press release
For additional information regarding this post, please contact Hanspeter Walter or the KMTG attorney with whom you normally consult.