Friday, August 17, 2012

Ninth Circuit Issues Opinion Regarding ESA Consultation & NEPA Review

In an opinion issued on August 13, 2012, the federal Ninth Circuit Court of Appeals held that the issuance of an annual operating plan for the Glen Canyon Dam by the Bureau of Reclamation (“Reclamation”) is not subject to the consultation requirements of the Endangered Species Act (“ESA”), nor the environmental review requirements of the National Environmental Policy Act (“NEPA”).

The appeal in Grand Canyon Trust v. U.S. Bureau of Reclamation (9th Cir. Case No. 11-16326) involved a challenge to Reclamation’s issuance of an annual operating plan for operation of the Glen Canyon Dam, which impounds the Colorado River. Pursuant to the Colorado River Basin Project Act of 1968 (“CRBPA”), the Secretary of the Interior (“Secretary”) is required to adopt criteria for the long-term operation of the Glen Canyon Dam (“Dam”) and to transmit annual operating plans (“AOPs”) for the Dam to Congress and the Colorado River Basin States. The AOPs must describe the actual operation under the adopted criteria for the preceding water year and the anticipated project operation for the current water year.

In Grand Canyon Trust, the primary issues on appeal were: 1) whether the issuance of an AOP for the Glen Canyon Dam is a discretionary act that triggers the ESA’s consultation requirement; and 2) whether the issuance of an AOP is a major federal action that triggers NEPA’s environmental review requirements. Under section 7(a)(2) of the ESA, a federal agency must consult with the appropriate fish and wildlife agency if the agency action may affect any species listed under the ESA. Under NEPA, a federal agency must prepare an environmental impact statement (“EIS”) for every major federal action significantly affecting the quality of the human environment.

The factual history of the Grand Canyon Trust case is critical to understanding the Court’s holdings. In 1995, Reclamation prepared an EIS in which it evaluated several operational alternatives for managing the Dam, including a modified low fluctuating flow (“MLFF”) regime and a seasonally-adjusted steady flow regime. In 1996, the Secretary selected MLFF as the Dam’s specific operating criteria in a NEPA-required Record of Decision. In 2008, the Grand Canyon Trust filed its original complaint against Reclamation, alleging that Reclamation violates the ESA by not consulting with FWS on the development of each AOP for the Dam and that Reclamation violates NEPA by not preparing an environmental assessment (“EA”) or EIS for each AOP. After three summary judgment decisions and two remands by the district court, the issue of whether an AOP is subject to NEPA and the ESA consultation requirement finally reached the Ninth Circuit.

ESA Section 7 Consultation
In addressing the issue of whether the issuance of an AOP is a discretionary act that triggers the ESA’s consultation requirement, the Court began its analysis by stating the rule that the consultation requirement only applies to federal action in which there is discretionary Federal involvement or control. The Court concluded that in issuing an AOP, Reclamation does not exercise discretion signifying agency action requiring ESA consultation because the CRBPA requires Reclamation to prepare an AOP which describes Dam operations under the adopted criteria. The Court emphasized that Reclamation does not have the discretion to select different operating criteria for the Dam by saying so in an AOP because Reclamation has a specific, non-discretionary obligation to implement the adopted criteria, which in this case, is the MLFF selected in the 1996 Record of Decision. Thus, the Court held that Reclamation does not violate the ESA by issuing an AOP without formally consulting with the Fish and Wildlife Service because Reclamation does not exercise discretion that inures to the benefit of a listed species in preparing an AOP.

NEPA Environmental Review
In addressing the issue of whether the issuance of an AOP is a major federal action triggering NEPA review, the Court stated that an agency must prepare an EIS if an ongoing project undergoes changes which themselves amount to “major Federal actions.” However, the Court concluded that Reclamation is not making material changes to the operating criteria for the Dam when it prepares and issues an AOP. The Court stated that the time for Reclamation to take a “hard look at the environmental consequences” should be at the points where Reclamation established the operating criteria for the Dam, or embarks on some significant shift in direction in operating policy, not merely when there is routine and required annual reporting. Thus, the Court held that AOP preparation does not trigger compliance with NEPA’s procedural requirements.

The Grand Canyon Trust decision provides instructive Ninth Circuit authority regarding the type of federal actions which trigger the ESA consultation requirement and NEPA review. The decision warrants careful review by any federal litigator or administrative practitioner.

For additional information regarding the Grand Canyon Trust decision, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult.

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