Ninth Circuit Rules That Plans for Dam Operation Do Not Require Annual Environmental Reviews

by Perkins Coie
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On August 13, 2012, the Ninth Circuit ruled in Grand Canyon Trust v. U.S. Bureau of Reclamation that the Bureau's preparation of statutorily mandated Annual Operating Plans for the Glen Canyon Dam in Arizona did not trigger the requirements of the National Environmental Policy Act or the Endangered Species Act.
  • The court held that annual approval of the operating plans for the Dam did not constitute a “major federal action” under NEPA. As a result, yearly environmental reviews were not required and the Bureau's previous programmatic Environmental Impact Statement, completed in 1995, was sufficient for purposes of NEPA compliance.
  • The court similarly found that Congress did not intend for the annual operating plans to be subject to the formal consultation requirement of the ESA. As with its ruling under NEPA, the court found that a programmatic approach was appropriate.
  • This decision is the third Ninth Circuit opinion of the summer touching on what constitutes “agency action” for purposes of triggering ESA consultation. 

Background

This litigation started in 2007, and due to the importance of the Dam's operations, all seven Colorado River Basin states intervened in the case, as did representatives for water and power users. The plaintiff, the Grand Canyon Trust, claimed that the Bureau – in completing Annual Operating Plans for the Glen Canyon Dam (and other Colorado dams and reservoirs) that were mandated by federal law – was required to complete an annual NEPA review and ESA Section 7 consultation. The Trust also challenged the Biological Opinion prepared by the U.S. Fish & Wildlife Service under the ESA to address the impacts of the Dam's operations on the endangered humpback chub. The district court rejected the first claim, but agreed with the second.

In response, the FWS issued a supplemental Biological Opinion in 2009, but the Trust successfully argued that the Incidental Take Statement associated with the BiOp was not numerically "linked to the take of the protected species." This resulted in a new Incidental Take Statement in 2010, which confirmed that a numeric incidental take limit for juvenile chub could not be established and instead used a surrogate limit based on the number of adult fish. The Trust launched another legal challenge, but this time it lost. The Trust then appealed to the Ninth Circuit, and while the appeal was pending the FWS prepared a new BiOp and Incidental Take Statement in 2011.

The Ninth Circuit's Opinion

The Ninth Circuit rejected all of the Trust's claims. The court first ruled that the Bureau was not required to consult yearly under the ESA for preparing congressionally mandated Annual Operating Plans. Judge Gould wrote that requiring ESA consultation for each operating plan would contravene congressional intent and “would be unduly cumbersome and unproductive in addressing the substance of environmental issues." The court also dismissed as moot the Trust's attack on the 2009 BiOp and the 2010 Incidental Take Statement, since these had been superseded by the issuance of a new BiOp and Incidental Take Statement in 2011. The court further held that the Bureau was not required to complete an environmental review for each Annual Operating Plan, because the plans are not “major federal action” triggering NEPA.

Conclusion

This decision is one of several this summer by the Ninth Circuit addressing what constitutes “agency action” for purposes of triggering consultation under the Section 7 of the ESA. On June 1, 2012 in Karuk Tribe of California v. U.S. Forest Service, 681 F.3d 1006 (9th Cir. 2012), an en banc panel found that the U.S. Forest Service's decision not to require small-scale recreational miners to submit a detailed plan of operations before proceeding under a Notice of Intent constituted "agency action." Thus, consultation was required to address potential impacts on the threatened Klamath River coho salmon. But on July 17, 2012, the Ninth Circuit reached the opposite result in Natural Resources Defense Council v. Salazar, __F.3d __, No. 09-17661, 2012 WL 2899095 (9th Cir. July 17, 2012). In that case, the court found that the Bureau of Reclamation's renewal of California Central Valley Project water delivery contracts was not "agency action" because of the Bureau's lack of discretion over the contracts. Thus, consultation was not required notwithstanding the potential impacts on the endangered delta smelt. This most recent decision again touches on the same issue, with the Ninth Circuit looking to the legislative history of the program governing Annual Operating Plans and determining that individual plans do not qualify as "agency action."

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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