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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."
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