Yesterday, Judge James Redden of the District Court for the District of Oregon invalidated the 2004 Biological Opinion (2004 BiOp)for the operation of the Federal Columbia River Power System (FCRPS). Specifically, he granted the motions of plaintiff National Wildlife and intervenor-plaintiff State of Oregon and denied all other motions for summary judgment.

In invalidating the 2004 BiOp, Judge Redden wrote, "I find that the 2004 BiOp is legally flawed in four respects: (1) the improper segregation of the elements of the proposed action NOAA deems to be nondiscretionary; (2) the comparison, rather than the aggregation, of the effects of the proposed action; (3) the flawed critical habitat determinations; and (4) the failure to consult adequately on both recovery and survival in the jeopardy determination."

Judge Redden did not order any specific remedy to address his concerns with the BiOp. In 2003, he found the 2000 Biological Opinion for the FCRPS invalid but allowed it to remain in effect during remand to NOAA Fisheries.

Judge Redden announced that he retains jurisdiction over this matter, and in a separate order, he scheduled oral argument on the plaintiff's motion for a preliminary injunction for June 10, 2005 at 9:00 AM.

More information about this ruling, including a copy of the opinion, is available at www.salmonrecovery.gov.

Final Columbia River Biological Opinion

November 30, 2004

On November 30, 2004, NOAA Fisheries released its biological opinion entitled Consultation on Remand for Operation of the Federal Columbia River Power System and 19 Bureau of Reclamation Projects in the Columbia Basin ("Biological Opinion on Remand").

The biological opinion concludes that operations of the Federal Columbia River Power System, as defined in the Action Agencies' Final Updated Proposed Action for the FCRPS Biological Opinion Remand ("UPA"), will not jeopardize listed salmonid stocks on the Columbia and Snake Rivers or adversely affect their critical habitat.

The Biological Opinion on Remand and UPA, as well as a Letter to the Region and a news release, are available at http://www.salmonrecovery.gov/.

Draft Biological Opinion On Columbia River Power Operations

September 14, 2004

On September 9, 2004, NOAA Fisheries issued a draft Biological Opinion that concludes that operation of the Federal Columbia River Power System (FCRPS) will not be likely to jeopardize ESA-listed stocks of salmon and steelhead.

A 2000 Biological Opinion (2000 BiOp) had concluded that the FCRPS would jeopardize these stocks and proposed more than 100 Reasonable and Prudent Alternatives (RPAs) that aimed to avoid jeopardy. In 2001, the National Wildlife Federation sued the National Marine Fisheries Service (NMFS) in Oregon District Court, arguing that NMFS' issuance of the 2000 BiOp was arbitrary and capricious. In May 2003, Judge James Redden granted summary judgment in favor of the plaintiffs. He specifically held that the 2000 BiOp contained RPAs that were not reasonably certain to occur, as required by Endangered Species Act regulations. He remanded the BiOp and ordered the agency to correct its deficiencies within one year.

>During the remand process, the agency (now known as NOAA Fisheries) reassessed the strength of the salmon and steelhead stocks that move through the FCRPS and concluded that nearly all ESA-listed populations of salmon and steelhead have significantly improved from the numbers counted in 2000 and are well above the 10 year average returns. These numbers were among the factors that have led NOAA Fisheries to preliminarily conclude in the draft BiOp that the proposed operations of the FCRPS will not be likely to jeopardize ESA-listed fish.

NOAA Fisheries is obligated to issue a final revised BiOp by November 30, 2004.

Ninth Circuit Critical Habitat Decision

August 10, 2004

In its recent opinion in Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, No. 03-35279 (9th Cir. August 06, 2004), the Ninth Circuit reversed a grant of summary judgment in favor of the defendant with regard to the legal adequacy of biological opinions for six timber sales. The Ninth Circuit held that the agency's critical habitat analysis was defective because its definition of "adverse modification" impermissibly focused solely on species survival and did not address species recovery, as required by the Endangered Species Act. In the words of the court, "the purpose of establishing 'critical habitat' is for the government to carve out territory that is not only necessary for the species' survival but also essential for the species' recovery."

Read this opinion in full

Court Rejects Fish and Wildlife Listing Decision as Arbitrary and Capricious

Daniel J. O’Hanlon

Kronick, Moskovitz, Tiedemann & Girard

In a ruling that is apparently the first of its kind, a federal court in California has rejected a decision by the United States Fish and Wildlife Service to list a species as "threatened" under the federal Endangered Species Act, calling the decision "arbitrary and capricious." While in a few other cases courts have temporarily set aside decisions to list a species on procedural grounds, this is the first case to take the Service to task for suspect science underlying its listing decision. This successful court challenge to the Service’s discretion on biological issues should prove to be a valuable precedent for members of the regulated community who have been frustrated by various Service decisions that do not appear to have any basis in science.

The case involves the listing of the Sacramento splittail, a fish in the minnow family that resides in the Sacramento-San Joaquin River Delta, and various tributaries to the Delta. The Service published a regulation listing the fish as "threatened" on February 9, 1999. During the comment period before publication of the final rule, the plaintiffs in the case, various water agencies and water users dependent on supplies form the Delta, submitted comments in opposition to the proposed listing. The California Department of Fish and Game filed comments objecting to the listing as well.

In support of its listing decision, the Service claimed that the splittail population has declined by sixty two percent (62%) since 1980. The Service derived this figure by comparing high average abundance during the years from 1980 to 1984, a relatively wet period, against low average abundance during the period from 1985 through 1992, which includes the years of California’s recent drought. Since splittail abundance fluctuates with wet or dry conditions, the Service’s choice of periods for its comparison guaranteed a conclusion that the species was declining over time. The Service "updated" that calculation with abundance data gathered up through 1997, which showed improving abundance after the drought, but because of the wet baseline period chosen for the comparison, the Service could still claim an overall decline.

The Service did not consider any abundance data from 1998. As it happened, 1998 was a wet year, with record high splittail abundance numbers in some surveys, and near record highs in other surveys. In its press release accompanying the publication of the regulation listing the splittail in February 1999, the Service said it could not consider the 1998 data, because record abundance in 1998 resulted from "exceptional hydrological conditions." Yet, the Service did include the high abundance data from 1983 in its baseline period used to calculate species decline, and 1983 was the wettest year on record in California.

In response, the water agencies, whose water supplies were subject to potential restrictions as a result of the listing of the splittail, filed suit. In a decision filed on June 28, 2000, in the United States District Court in Fresno, Judge Oliver Wanger ruled that "[u]nder the totality of the circumstances, this is an arbitrary and capricious decision not reached in accordance with law." The court concluded that "there [is no] evidence that USFWS attempted to acquire a broader range of unbiased data or address critiques of the studies they used, which appear biased. They violated other provisions of the ESA requiring relation of the data to the listing decision and written justification to the state agencies that opposed the listing. The entire record shows the listing decision was not the result of fair, impartial, or reasoned decision making. Since the decision to list the splittail, USFWS has provided conflicting rationales as to why other conflicting evidence was not considered." In sum, the court expressed serious reservations about the soundness and objectivity of the scientific basis for the Service’s decision.

This case has broad significance, because courts are generally very deferential to agency decisions on scientific or technical issues, and will overturn such decisions only if they find them be arbitrary and capricious. Furthermore, while a number of cases have overturned Service decisions not to list a species, this case is the first case to reject, on substantive grounds, the Service’s decision to add a species to the list. The splittail case shows that, in the appropriate case, a court challenge to an unjustified Service decision on a biological issue can succeed.

Anyone considering such a challenge is cautioned to submit substantive, detailed comments in response to a proposed listing decision or other Service regulatory action. In general, only data and comments that are in the Service’s administrative record will be considered by a court. Especially after the splittail decision, well prepared comments will compel the Service to objectively consider and respond to all of the available data, including data contrary to its proposed decision, or face the prospect of having its decision set aside as arbitrary and capricious.

Environmental Groups File Suit Challenging Colorado River Operations; Seek Extraterritorial Application of ESA

Thomas R. Wilmoth

Fenemore Craig

On June 28, 2000, Defenders of Wildlife, along with seven other U.S. and Mexican environmental organizations, sued the Secretaries of Interior and Commerce, the Bureau of Reclamation, the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), alleging violations of the Endangered Species Act (ESA) and the Administrative Procedures Act (APA). The suit challenges the validity of a 1997 biological opinion concerning Reclamation’s operations on the lower Colorado River. It appears that the plaintiffs will ultimately seek the release of water stored in Reclamation facilities to restore seasonal flows to the Colorado River delta in Mexico. This lawsuit is pending in the U.S. District Court for the District of Columbia before Judge James Robertson. Defenders of Wildlife v. Babbit, No. 1:00CV01544.

The Colorado River originates in northwestern Colorado and transverses approximately 1,400 miles to the Gulf of California, in Mexico. Average annual flows in the Colorado at Lee Ferry are 15 million acre-feet (MAF). Historic annual flows, however, vary from as low as 5 MAF to as high as 23 MAF. Historically, the Colorado River was highly responsive to seasonal flow patterns, the effects of which have been dampened by the construction of large dams on the mainstem of the river. These dams provide water to 30 million residents and 1.8 million acres of agricultural lands, as well as 12 billion kWh of electrical generation capacity.

Under various interstate compacts, international treaties, congressional acts and Supreme Court decrees, collectively known as the "Law of the River," the seven Basin States of Arizona, California, Nevada (the Lower Basin States), Colorado, New Mexico, Utah and Wyoming (the Upper Basin States) have each been allocated a share of the waters of the Colorado. Individual water and power entities within the states have contracted with the Secretary of Interior for water and power deliveries pursuant to individual project authorities.

Plaintiffs contend that the consultation conducted by Reclamation, FWS and NMFS was defective because it was limited to a five-year period of operations, and failed to consider the impacts of Reclamation’s operations on listed species in Mexico, including marine species such as the totoaba and the vaquita found in the Gulf of California. Plaintiffs specifically allege violations of mandatory duties under ESA sections 7(a)(1) and 7(a)(2) as well as section 8 (failure to cooperate with and assist the Mexican government). Perhaps the most significant issue raised by the suit is whether Reclamation is required to examine the effects of its actions when those effects occur in a foreign country. Previously, the issue of the extra-territorial application of the ESA has been addressed on one occasion. In that case, which involved a challenge to the rules governing interagency consultation codified at 50 C.F.R. Part 402, the Eight Circuit Court of Appeals held that section 7 applies to federal actions in foreign countries. Defenders of Wildlife v. Lujan 911 F.2d 117 (8^th Cir. 1990). However, this decision was reversed on standing grounds. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

The challenged biological opinion includes short term reasonable and prudent alternatives (RPAs), such as habitat acquisition, and a long-term RPA -- the development of a multi-species conservation program, which is intended to mitigate effects over a 50-year operating period. The Lower Colorado River Multi-Species Conservation Program planning process has been underway since 1995 and is intended to serve as the primary long-term RPA. Several of the plaintiffs held seats on the LCRMSCP Steering Committee, but, citing dissatisfaction with the process, elected to withdraw from the committee in the spring of 1999.

Notably, the same biological opinion was challenged in a prior lawsuit filed by one of the plaintiffs. See Southwest Center for Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515 (9^th Cir. 1998). In that case, the plaintiff initially sought an injunction that would compel Reclamation to lower the water level in Lake Mead to protect riparian habitat occupied by southwestern willow flycatchers. The plaintiff amended its complaint to add a claim challenging the adequacy of the RPAs following issuance of the biological opinion in 1997. The claim against Reclamation was dismissed based on inadequate notice under Section 11(g) of the ESA, and the challenge to the RPAs was rejected.

If the plaintiffs prevail on their claims in the new lawsuit, the result may be extremely significant. Reclamation may be forced to re-consult with FWS and NMFS, in which case Reclamation may not be able to rely on the 1997 biological opinion and related incidental take statement in performing discretionary activities associated with river operations. Should Reclamation be required to consider transboundary effects, and should those effects result in jeopardy to listed species in the Colorado River delta, a possible RPA may include releases of additional water to Mexico. There is no guarantee, however, that such releases would actually reach the Colorado River delta and Gulf of California, where listed marine species are found. Large agricultural interests situated on the Mexican side of the international border may simply increase their diversions.

In order to protect their respective interests, Arizona and California moved to intervene as defendants. Three other groups of water and power users, including the Central Arizona Water Conservation District, Metropolitan Water District of Southern California, San Diego County Water Authority, Southern Nevada Water Authority, Imperial Irrigation District, and Wellton-Mohawk Irrigation and Drainage District, also moved to intervene to protect their individual contract rights to Colorado River water and power. On October 6, Judge Robertson denied all motions to intervene, including those of the states, because the proposed intervenors could not satisfy the "injury in fact" requirement of Article III standing. As this article goes to press, it appears that Judge Robertson’s order will be appealed.

Total Maximum Daily Loads (TMDLs) and the Endangered Species Act

James M. Stuhltrager

Mid-Atlantic Environmental Law Center

On July 13, 2000, published its long-anticipated revisions to the regulations that establish its Clean Water Act (CWA) TMDL program and the associated section 303(d) Lists. See 65 Fed. Reg.43586 (July 13, 2000) www.epa.gov/owow/tmdl/finalrule. In their most basic form, TMDLs can be thought of as comprehensive pollution budgets, applicable to all sources of water-borne pollution, including point sources, nonpoint sources, and air deposition. Because TMDLs are so all-inclusive, in its proposed regulations EPA acknowledged that this program will impact other environmental laws, including the Endangered Species Act (ESA). However, the convergence of the TMDL program and the ESA did not begin with these regulations. Throughout the history of the TMDL program, EPA has at least implicitly recognized the impact the TMDL program has on listed species. Therefore, it may be useful to compare EPA’s prior compliance with the ESA with regard to TMDL actions to what EPA proposes with respect to the new regulations.

Over the past several years, EPA has focused its ESA responsibilities on Section 7 consultation. Section 7 has been called the "heart" of the ESA. Florida Key Deer v. Stickney, 864 F. Supp. 1222, 1226 (S.D.Fla. 1994). Section 7(a)(1) requires all Federal agencies to "utilize their authorities in furtherance of the purposes of [the ESA] by carrying out programs for the conservation" of protected species. 16 U.S.C. § 1536 (a)(1). Section 7(a)(2) mandates that:

Each Federal . . . agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded or carried out by such agency (hereinafter in this section referred to as an "agency action") is not likely to jeopardize the continued existence of [any] endangered species or threatened species or result in the destruction or modification of habitat of such species which is determined by the Secretary . . . to be critical.

16 U.S.C. § 1536(a)(2). Section 7(a)(4) also mandates that "Federal agencies shall confer with the Secretary on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed [under the ESA] or result in the destruction or adverse modification of critical habitat proposed to be designated for such species." 16 U.S.C. § 1536 (a)(4).

The duty to consult under Section 7(a)(2) applies to all federal "agency actions," a term that has been broadly defined. The regulations governing interagency consultation define the "agency action" to include "all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by federal agencies in the United States or upon the high seas." 50 C.F.R. § 402.02. Accordingly, the consultation requirements imposed by section 7 should apply to all EPA actions to approve, disapprove or establish 303(d) Lists and TMDLs.

As stated above, ESA considerations in the TMDL program are not new. Over the years, EPA has engaged in sporadic consultations with the Services both when reviewing State actions and engaging in its own actions pursuant to CWA section 303(d). For example, in 1996, EPA Region 3 engaged in informal consultation with FWS prior to approving Virginia’s 1996 303(d) List. This informal consultation consisted of EPA sending a copy of Virginia’s 1996 303(d) List to FWS during EPA’s review of that 303(d) List. Following its own protracted review, FWS determined that approval of the 303(d) List would not likely adversely affect listed species or designated habitat, provided that two listed waters – the Guest River and Dumps Creek – were upgraded to "high" priority for TMDL development in the 1998 303(d) List. Subsequently, EPA approved Virginia’s 1996 303(d) List.

However, the story does not end there. In 1998, Virginia submitted a 303(d) List to EPA that did not assign a "high" priority designation for the Guest River and Dumps Creek. FWS again recommended that these two waters be upgraded to "high" priority for TMDL development. This time, EPA disapproved Virginia’s 303(d) List and, in the agency’s subsequent rulemaking, redesignated both the Guest River and Dumps Creek as "high" priority for TMDL development. 63 Fed. Reg. 71919 (December 30, 1998)

EPA has not limited its consultation to review of a State’s 303(d) Lists. Before establishing a TMDL for the Columbia River, EPA Region 10 engaged in formal consultation with FWS. See Dioxin/Organochlorine Center v. Clarke, 57 F.3d 1517, 1523 (9^th Cir. 1995). In its Biological Opinion, FWS found that EPA’s TMDL for dioxin was "not likely to jeopardize the continued existence of the bald eagle." Other EPA regions have conducted informal consultation during their review of State-submitted TMDLs. For example, EPA Region 3 engaged in informal consultation during its review of the first TMDL submitted by the Commonwealth of Virginia for an Unnamed Tributary to Fawn Creek./p>

In settling some of the numerous lawsuits that have been brought against EPA regarding its oversight of the TMDL program, EPA has agreed to engage in informal consultation with regard to TMDL activities. In Pennsylvania, EPA agreed to provide a copy of 303(d) Lists and TMDLs to FWS and/or National Marine Fisheries Service (NMFS) along with a transmittal letter during EPA’s review of the 303(d) List or TMDL. The transmittal letter would contain the following language:

Accompanying this letter is a copy of the (CWA Section 303(d) list) (TMDL) (TMDTL) for ___________. EPA is providing this prior to taking final action in an effort to ensure that our respective reviews are coordinated. EPA is sending this letter as a means of insuring that any action it takes pursuant to section 303(d) of the Clean Water Act, 33 U.S.C. § 1313(d), is not likely to jeopardize the continued existence of any listed or proposed threatened or endangered species or result in the destruction or adverse modification of any critical habitat of such species. Accordingly, EPA is requesting from (FWS) (NMFS) information as to whether any species which is listed or proposed to be listed may be present in the area affected by this action.

American Littoral Society and Public Interest Research Group of Pennsylvania v. EPA, Civil Action No. 96-489 (E.D.Pa. April 9, 1997). This same commitment is also contained in consent decrees entered in Delaware and Virginia.

EPA’s new TMDL regulations reemphasize the convergence of the TMDL program and the ESA and codify many of the practices previously conducted by EPA on a "voluntary" basis. With regard to 303(d) Lists, the regulations require States to identify waterbodies "[w]here species listed as threatened or endangered under section 4 of the [ESA] are present." 40 C.F.R. § 130.28(d)(2)(ii). These waterbodies must be given a "higher priority" for TMDL development unless the State explains why a "different priority is appropriate." 40 C.F.R. § 130.28(d)(3). Moreover, under the new regulations, a TMDL "must not be likely to jeopardize the continued existence of an endangered or threatened species … or result in the destruction or adverse modification of its designated critical habitat." 40 C.F.R. § 130.32(e). This language is nearly identical to that statutory mandate contained in ESA section 7(a)(2). 16 U.S.C. § 1536 (a)(2).

The regulations also attempt to formalize or codify the consultation process required by ESA section 7. In the preamble of the first proposal of the revised TMDL regulations, EPA acknowledged that a draft Memorandum of Agreement (MOA) between the Services and EPA describes the process of integrating species protection goals into EPA’s approval or promulgation of water quality standards under CWA section 303(c). 64 Fed. Reg. 46035 (August 23, 1999) (MOA published at 64 Fed. Reg. 2742 (January 15, 1999)). However, this MOA does not address coordination with the Services regarding section 303(d) actions. Instead, the final rules require States to provide proposed 303(d) Lists and TMDLs to FWS and NMFS as appropriate, prior to submission to EPA. 40 C.F.R. § 130.6(c)(1). If the State fails to do so, EPA will provide the Services with these documents. If the Services provide comments on the proposed 303(d) Lists or TMDLs, the State must consider and address the Services’ concerns. 40 C.F.R. § 130.36(c)(3). EPA will consider the State’s responses to the Services’ comments during its review. 40 C.F.R. § 130.36(d).

EPA’s attempts to address endangered species concerns have not come without criticism. Throughout the rulemaking process, EPA received numerous comments opposed to addressing ESA compliance with the TMDL program. E.g., 65 Fed. Reg. 43628 (noting commentors’ objections to EPA’s attempt to shift the burden of ESA section 7 compliance from EPA to the States). However, these regulations appear to be a natural outgrowth of EPA’s previous procedures. Moreover, in some instances, EPA’s final regulations were a retreat from those initially proposed. For example, EPA dropped its initial proposal that those waters that support listed species would be designated as "high" priority for TMDL development. See Letter of 4/5/00 from J. Charles Fox, EPA to The Hon. Bud Shuster www.epa.gov/owow/tmdl/pdf/tmdl45.pdf. Instead, EPA requires these waters be given "higher" priority. 40 C.F.R. § 130.28(d)(3).

As with any regulation, only time will tell the practical effects that these new rules have on threatened and endangered species as well as those charged with complying with EPA’s mandates. Numerous questions remain unanswered. For example, will States "establish processes" with both FWS and NMFS to provide for the early identification of threatened or endangered species concerns? 40 C.F.R. § 130.36(c)(2). If the States do not, how will EPA respond? The answers to these questions are likely to be answered within the next few years as the States and EPA adapt to the new TMDL regulations.

Fish & Wildlife Service Advises EPA Region 9 That Groundwater Pumping and Related Impacts Caused by Urban Growth Are Effects of Storm Water Discharge Permits

Norman D. James

Fennemore Craig

In a letter written to Region 9 of the Environmental Protection Agency (EPA), the Fish and Wildlife Service (FWS) has stated that consultation under Section 7 of the Endangered Species Act (ESA) is necessary regarding the region’s general permit for storm water discharges from construction activities (CGP), and other permits issued under Section 402 of the Clean Water Act, based on increased water use and other impacts resulting from urban growth. The letter, written last April by the Field Supervisor of the Arizona Ecological Services Field Office in Phoenix, focuses on private development activities in Sierra Vista, Arizona. According to FWS, EPA must consider potential indirect effects such as increased groundwater pumping by local utilities in determining whether an applicant qualifies for coverage under the CGP. The analysis in the letter would virtually guarantee a "may affect" determination, regardless of whether the applicant’s storm water discharges and related activities (e.g., storm water management measures) would actually impact listed species or critical habitat.

Sierra Vista is a community of approximately 40,000 people with an incorporated area of 130 square miles. It is located approximately 75 miles southeast of Tucson, and is adjacent to Fort Huachuca, a U.S. Army installation. Sierra Vista is a commercial center for Cochise County and parts of northern Mexico. The area’s temperate climate, strong local economy and recreational opportunities have caused the city to grow rapidly over the past 20 years.

The Service’s concerns relate primarily to the San Pedro River, which is located several miles east of Sierra Vista and provides riparian habitat for some 400 bird species. The river contains designated critical habitat for several listed species, including the southwestern willow flycatcher, the loach minnow and the spikedace. In order to provide long-term protection for this segment of the San Pedro, Congress established the San Pedro Riparian National Conservation Area in 1988. Groundwater pumping in the vicinity of Sierra Vista and Fort Huachuca has been cited by environmental organizations as a major threat to the long-term viability of the San Pedro ecosystem.

In his letter to EPA, the Service’s Field Supervisor expressed concern that "[CGPs] and point [source] discharge permits may be issued for housing development projects that will increase domestic water consumption or degrade watershed condition and water quality without full evaluation of effects to listed species and critical habitat." The Field Supervisor went on to emphasize that "particular attention should be paid to consumptive water use and effects of such use on the regional groundwater aquifer and the upper San Pedro River" when determining effects resulting from the permit.

In the Service’s view, increased groundwater pumping by local utilities to serve new homeowners constitutes either an "interrelated" or an "interdependent" action, the effects of which must be considered in conjunction with determining whether an applicant may receive coverage under the region’s CGP. As explained by the Service:

Because waste water treatment and storm water discharge are integral parts of most developments, if a development includes groundwater use, that use likely would not occur but for the issuance of a NPDES permit from your agency. Thus, the effects of NPDES permit issuance may include the effects of groundwater use by the development because groundwater use is interrelated and interdependent to permit issuance.

The Service thus views the issuance of a permit or, more precisely, coverage under the CGP as being so integrally related to the private development that all impacts associated with the development must be evaluated. In reaching this conclusion, the Service relies on an extremely attenuated "but for" analysis, under which any effect resulting from the development is attributable to issuance of the permit, regardless of the permit’s purpose and the issuing agency’s jurisdiction.

The Service’s ultimate goal is apparently to force a programmatic consultation with Region 9 that would deal with all NPDES permits issued in the upper San Pedro River basin, including CGP coverage determinations. In the concluding paragraph of that letter, the Field Supervisor expressed his belief that "standard formulas could be devised for most permits to calculate effects and determine appropriate mitigation, if necessary." In other words, the Service would issue a biological opinion containing reasonable and prudent alternatives (RPAs) to avoid jeopardy. The RPAs would presumably contain various restrictions and requirements that, for example, would limit homeowners’ water consumption or allow only low density development. The letter does not address the issue of whether EPA, in connection with regulating storm water discharges from construction sites, would have jurisdiction to impose these types of conditions in a permit. Arguably, such jurisdiction would not exist. See American Forest and Paper Ass’n v. U.S. Environmental Protection Agency, 137 F.3d 291, 297-99 (5^th Cir. 1998) (holding that EPA cannot invoke the ESA as a means of creating and imposing requirements that are not authorized by the Clean Water Act).

At this time, it is uncertain what, if any, action Region 9 has taken in response to the Service’s letter. However, the analysis employed by the Service and the Service’s apparent desire to compel a sister agency to use its permitting authority to restrict private land use activities is disturbing. Moreover, these sorts of conflicts are likely to increase. In recent years, species have been listed by the Service and the National Marine Fisheries Service that may be found in areas that are growth corridors for urban areas, such as the coastal California gnatcatcher and the cactus ferruginous pygmy-owl. At the same time, regulatory programs administered by other federal agencies, such as EPA’s regulation of storm water discharges, are continuing to expand. In the southwestern United States, for example, most real estate developments require some sort of permit under the Clean Water Act, potentially triggering consultation under Section 7 of the ESA. When these regulatory developments are combined with an extreme effects analysis, such as the example discussed above, the Services effectively become super zoning authorities.

Section of Environment, Energy, and Resources

Endagered Species Committee

Highlights Archive Index

2004 Biological Opinion (2004 BiOp) for the operation of the Federal Columbia River Power System (FCRPS)