Endangered Species Law & Policy

On February 21, 2017, the U.S. Court of Appeals for the Ninth Circuit held that the San Luis & Delta-Mendota Water Authority and Westlands Water District (collectively, Water Contractors) lacked Article III standing to pursue an Endangered Species Act (ESA) claim against the U.S. Department of the Interior and U.S. Bureau of Reclamation (collectively, the Federal Defendants) in connection with the Federal Defendants’ water flow augmentation for the Lewiston Dam.  San Luis & Delta-Mendota Water Authority v. Haugrud, Case Nos. 14-17493, 14-17506, 14-17515, and 14-17539.

The Water Contractors alleged that the Federal Defendants failed to conduct formal consultation under ESA section 7 for their 2013 release of Trinity River water from the Lewiston Dam in an amount that exceeded the designated applicable water release schedule for the dam, thereby causing economic injury to the Water Contractors and their members.  In particular, the Water Contractors alleged that the Federal Defendants’ action would cause the imposition of more stringent regulations on the operations of the Central Valley Project, restricting water deliveries to their members and adversely impacting the agricultural industry, in the event that the reduction of cold water storage resulted in insufficient flows and adversely impacted winter run and spring run salmon egg incubation.

The Court declined to find that the Water Contractors had standing to pursue their ESA claim, holding that the alleged injuries were speculative and not traceable to the Federal Defendants.

The Court did not reach the question of whether economic injury is an interest that is protected under ESA section 7.