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

Thomas R. Wilmoth
Fennemore 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.

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, the three Lower Basin States intend to intervene prior to the government’s answer. Three other distinct groups of water and power users, including the Central Arizona Water Conservation District, Metropolitan Water District of Southern California, San Diego County Water Authority, Imperial Irrigation District, Wellton-Mohawk Irrigation and Drainage District, intend to intervene to protect their individual contract rights to Colorado River water and power. The intervenors will likely argue that the ESA does not require an analysis of effects in Mexico and that, in any event, the Secretary lacks discretion under the Law of the River to modify water deliveries or otherwise occurring operate Reclamation facilities in a manner contrary to that established body of law.

The suit is now pending in the U.S. District Court for the District of Columbia before Judge James Robertson. Defenders of Wildlife v. Babbit, No. 1:00CV01544.