In Friends of the River v. National Marine Fisheries Service, the U.S. District Court for the Eastern District of California rejected challenges to Army Corps of Engineers and National Marine Fisheries Service decisions regarding the impact of dams, hydropower facilities, and water diversions along the Yuba River on listed fish species, the spring-run Chinook salmon (Oncorhynchus tshawytscha), the Central Valley steelhead (Oncorhynchus mykiss), and the North American green sturgeon (Acipenser medirostris). In so doing, the court addressed a number of issues that may arise in the course of consultations under section 7(a)(2) of the federal Endangered Species Act.
Among the issues before the court was whether the federal defendants used an appropriate environmental baseline when assessing the potential effects of the agency action. The agencies determined that prior dam construction and the future effects stemming from the existence of the dams were part of the environmental baseline, not part of the action, and the court concurred.
Additional issues before the court were whether the actions by the Corps of Engineers were nondiscretionary, and whether agencies were required to consult regarding nondiscretionary actions. Relying on the Supreme Court’s decision in National Association of Home Builders v. Defenders of Wildlife, the district court held that there is no requirement to consult regarding nondiscretionary actions under the federal Endangered Species Act. And, because the Corps of Engineers is obliged to complete dam inventory and safety inspections under federal law, the court affirmed the agency determination that these actions are nondiscretionary and not subject to the Endangered Species Act’s consultation requirement.
Yet another noteworthy issue before the court was the scope of the consultation pursuant to section 7 of the Endangered Species Act. Plaintiffs argued that the exclusion of certain activities, such as the administration of permits and contracts, from the proposed action subject to consultation was unlawful. While the court held that issuance of permits and contracts are actions for the purpose of Endangered Species Act section 7(a)(2), it also concurred with the federal defendants’ determination to classify these as individual actions rather than interrelated or interdependent actions, and therefore not part of the action subject to consultation.
Paul Weiland is chair of Nossaman’s Environment & Land Use Group. He focuses his practice on litigation, permitting, and compliance counseling. Paul’s clients include public agencies, publicly regulated utilities, private ...
Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.
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