Defenders of Wildlife v. Army Corps of Engineers

ENDANGERED SPECIES: Challenges to irrigation dam bypass (as opposed to dam removal and installation of large pumps) to accommodate pallid sturgeon rejected on summary judgment on remand from 9th Circuit reversal of preliminary injunction. . . Morris.

FWS listed pallid sturgeon as endangered in 1990. The largest population in the world exists on the Missouri River between Fort Peck Dam and Lake Sakakawea. Fewer than 125 remain, due in large part to Fort Peck Dam on the Missouri and the Intake Dam on the Yellowstone River. The Intake Dam is 70 miles from the confluence of the rivers. The dams prevent the sturgeon from swimming far enough upriver to spawn successfully. Larvae drift 152-329 miles while developing. Larvae hatched below the Intake Dam lack sufficient “drift distance” to develop before they reach the lower oxygen levels in Lake Sakakawea. If the sturgeon could spawn above Intake Dam, larvae would have the opportunity to develop sufficiently before they reached the lake. In consultations with FWS, the Corps of Engineers issued a biological opinion in 2000 which determined that its operation at Fort Peck Dam likely would preclude the sturgeon from reproducing in the wild. The BiOp provided reasonable & prudent alternatives which would have allowed the Corps to comply with the Endangered Species Act. The Corps failed to implement these RPAs. An amended BiOp in 2003 concluded again that Fort Peck Dam operations jeopardize the sturgeon and prescribed a series of RPAs. The Corps again failed to implement essential elements of these RPAs.

The Bureau of Reclamation operates Intake Dam and the Lower Yellowstone Irrigation Project consisting of 4 districts. Intake Dam consists of a wood structure topped with rocks. It requires annual replacement of rocks via buckets transported on cables to hold back water for irrigation. The Bureau and Corps adopted a plan in 2010 to construct a permanent concrete diversion dam, a rock-lined ramp for sturgeon passage, and a new headworks with fish screens to reduce entrainment of fish in the irrigation canal. They constructed the headworks in 2012 but abandoned the plan to build a concrete dam with a rock ramp, primarily due to cost. They ultimately identified a new dam and bypass channel (“the Project”) for which they intend to spend $57 million to replace the wood & rock weir with a concrete weir to ensure continued irrigation water to the 56,800 acres currently serviced. 5 sturgeons successfully used a natural side channel around the existing weir in 2014 during unusually high water. The agencies decided that a new bypass channel — which would have sufficient flow at the time — was the best option to allow sturgeon to navigate around the proposed concrete weir. Defenders of Wildlife, concerned that they will not use the bypass, propose making the river free-flowing and installing pumps for irrigation. Intervenor Irrigators contend that pumps would not be economically feasible.

The Court granted Defenders of Wildlife a preliminary injunction in 9/15 to enjoin construction on the Project and ordered the agencies to complete an EIS, emphasizing the need to analyze sturgeon recovery and whether the Project would provide passage past Intake Dam. Their 2016 EIS and ROD sufficiently corrected their NEPA violations at the heart of the original preliminary injunction. Plaintiff amended its complaint, and the Court granted a preliminary injunction in 7/17 to halt construction related to the Project, reasoning that Plaintiff likely would succeed on the merits of their ESA, NEPA, and CWA claims in their amended complaint. The 9th Circuit vacated this preliminary injunction 4/4/18, determining that this Court improperly considered the harm caused by “continued operation of the existing weir” in its assessment of irreparable harm attributable to the Project, wrongly flipped the burden to require the Corps to prove that the Project would allow sturgeon passage, and lacked any basis to conclude that Plaintiff had established a likelihood of success on the merits. Plaintiff moves for summary judgment on Claims 1 & 2 challenging the decade-long operations of Fort Peck Dam in violation of ESA, Claims 4 & 5 challenging the decade-long operations of the Intake Dam by the Bureau in violation of ESA, Claim 11 challenging the Corps’s and Bureau’s 2016 EIS and ROD for violations of NEPA, Claim 12 challenging FWS’s 2016 BiOp for violations of ESA, Claim 13 challenging the Corps’s and Bureau’s reliance on the 2016 BiOp for violations of ESA, and Claim 14 challenging the Corps’s 2016 CWA approval of the Project.

FWS’s 2016 BiOp and Incidental Take Statement for the Project do not violate ESA. FWS analyzed whether a take of 59% of adult sturgeon approaching the Project would jeopardize the species and ultimately determined that the Project on balance “substantially improves the survival and recovery of the species.” This Court previously found “unavailing” the agencies’ citations to a BiOp that purportedly analyzed the impact of the authorized take limit. The first BiOp described FWS’s reasoning for choosing the 59% figure and explained that FWS anticipated more successful passage. The 2nd BiOp referred to the jeopardy finding without any reference to the 59% take authorization. This Court determined that softening the requirements of the jeopardy analysis on the basis that the Incidental Take Statement included an overestimate of the take did not make for sound policy in that it would encourage agencies to always overestimate take. The 9th Circuit disagreed. It determined that FWS had articulated a “reasoned basis for the no-jeopardy finding in its Biological opinion” and that its “approved incidental take represents a substantial reduction in the impairment of breeding caused in the project’s absence.” It recognized that analysis of the ITS and identification of a recovery goal sometimes may be needed to explain the reasoned basis for an agency’s no-jeopardy finding, but determined that this Court erred in treating absence of a specific ITS analysis and the failure to identify a quantifiable recovery goal as technical deficiencies that precluded a no-jeopardy finding in the BiOp. FWS recognized that migrating sturgeon would face both beneficial and adverse effects from the Project but concluded that the bypass channel would provide more reliable passage than the current channel as the existing channel often lacks sufficient flows to fill for passage during spawning season.

This Court determined in its preliminary injunction order that the agencies failed to provide sufficient information to demonstrate that the project would improve a situation that they concede to be dire, and instructed them to analyze whether it would improve the sturgeon’s “plight to give it a chance at survival and recovery.” The 9th Circuit reversed, recognizing that identification of a “recovery goal may sometimes be needed to explain the reasoned basis for an agency’s no-jeopardy finding,” but concluding that such analyses were not required here. It stressed that even though the BiOp did not identify a quantifiable recovery goal, it adequately addressed the Project’s overall positive impact on species recovery. It apparently interpreted §7(a)(2) as remaining concerned with whether the action would cause too much harm rather than whether it would improve a species’ status. Plaintiff’s view conflicts with the regulatory definition of “jeopardize” under this interpretation. The 9th Circuit determined that nothing in a 7(1)(2) consultation requires agencies to recover a species — that ESA requires “some attention to recovery issues” to provide “reasonable assurance that the agency action in question will not appreciably reduce the odds of success for future recovery planning, by tipping a listed species too far into danger.” FWS’s analysis in the BiOp leads to the conclusion that the proposed action provides a net positive for the sturgeon. It does not jeopardize its “continued existence” in this context.

FWS properly used the shovelnose sturgeon population to compare with the pallid sturgeon population in concluding that the Project would represent an improvement in the likelihood of survival and recovery of the pallid sturgeon. It acknowledged the differences between them. It remains reasonable to evaluate the specific interaction between the existing weir and shovelnose larvae to provide some idea as to how a new weir might affect pallid larvae as these present similar interactions. The Court must defer to FWS’s scientific judgment in choosing to use the shovelnose as a surrogate.

FWS evaluated the short-term impacts of the Project in the context of a rapidly declining pallid sturgeon population. It conceded that no upstream passage would occur during construction, but considered the short-term adverse effects of continued maintenance of the existing weir, possible interactions with the fish screens, and adverse effects caused by construction of the bypass channel. It recognized that the existing high flow channel would need to be filled during construction. This channel provides only occasional access for pallid sturgeon during the highest water years; only a handful of pallid sturgeon used it in the past during perfect water conditions. FWS estimated that the existing channel would contain enough water for the sturgeon — statistically — during 1 year of construction of the new bypass. It further estimated that 32 adult wild pallid sturgeon would be blocked from spawning by the Project. It considered this blockage to constitute a “temporary, but significant impairment of breeding and is considered an ‘injury’ to the sturgeon.” However, the impairment represents the status quo, as it does not change the current reproduction, numbers, or distribution of pallid sturgeon in the action area. ESA further contemplates artificial propagation to conserve or recover listed species. The 9th Circuit has recognized that hatchery fish may be considered under ESA.

FWS issued a lawful ITS. FWS’s regulations expressly provide for another species as a surrogate. Its ITS recognizes that if the Project were constructed and pallid sturgeon spawn upstream, larvae may be killed or injured at the site during the drift downstream. It relies on the shovelnose to measure the allowable take and provide a trigger for re-initiation of consultation.

The Bureau’s and Corps’s reliance on the BiOp to authorize the Project did not violate their ESA §7 duty to ensure that their actions likely would not jeopardize the sturgeon. Plaintiff has failed to carry the burden contemplated in Pyramid Lake (9th Cir. 1990). It cannot rely on the current weir to demonstrate that the agencies’ actions would jeopardize sturgeon. They are attempting to implement a high priority action that furthers recovery. Plaintiff has failed to demonstrate how this would jeopardize the listed species beyond its current dire circumstance. Id.

The CWA prohibits the Corps from issuing a §404(b) permit for projects that involve discharge of dredged or fill material into waters of the US if a less damaging practicable alternative exists. Plaintiff contends that the Corps must disapprove the Project absent a determination that the less invasive Multiple Pumps Alternative would be impracticable. The Corps determined that the bypass channel would be more practicable than the MPA in light of the extra costs of construction and maintenance. Plaintiff contends that the CWA does not contemplate inquiry into relative practicalities. The agencies counter that the Corps must consider the Project’s overall objectives, which include the continued viable & effective operation of the Lower Yellowstone Irrigation Project. The Multiple Pumps Alternative would provide passage for the pallid sturgeon, but it remains in doubt whether it would satisfy the Project’s purpose of “continuing the viable and effective operation of the LYP” in light of its inherently complicated design of gravity combined with pumps that require “highly precise timing on the startup and shutdown of each pump.” The Corps and Bureau concluded that multiple pumps would result in volumes that “will be highly variable from year to year” and that the risk of canal bank failures would increase due to the multiple locations of pumped inflows and the need for additional monitoring and coordination. The MPA involved an estimated $132 million for construction and $4.9 million per year for maintenance.

The Bureau ensured that its existing operation of the Intake Dam did not jeopardize the pallid sturgeon. Plaintiff has failed to demonstrate how the yearly rocking of the weir reduces “reproduction, numbers, or distribution” of the species when it maintains the status quo over the last 100-plus years. FWS determined that the rock debris field would still block passage for decades even if the District failed to perform the yearly rocking.

Plaintiff’s ESA challenge to the Corps’s operation & maintenance of Fort Peck Dam has been rendered moot by its re-initiation of consultation in 7/15. However, the Corps and Bureau cannot continue to stall implementation of RPAs described in each succeeding BiOp and avoid complying with ESA mandates simply by engaging in serial re-litigation of consultation to develop RPAs that they have shown little appetite to implement. The day of reckoning will come when they must actually complete the consultation process with incorporation of RPAs, as no one — including the Corps and Bureau — stands above the law.

Plaintiff’s motion for summary judgment on Claims 11-14 is denied and Federal/Intervenor Defendants’ cross-motions for summary judgment are granted. Plaintiff’s request that the Court order the Bureau to finalize a plan to bring its operation at Intake Dam into compliance with ESA (Claims 4 & 5) is dismissed without prejudice. Plaintiff’s request that the Court order the Corps to finalize a plan to bring its operation of Fort Peck Dam into compliance with ESA (Claims 1 & 2) has been rendered moot and is dismissed without prejudice.

Defenders of Wildlife and Natural Resources Defense Council v. Army Corps of Engineers and Intervenors Lower Yellowstone Irrigation Project Board of Control, Savage Irrigation Dist., and Intake Irrigation Dist, 44 MFR 190, 7/20/18.

McCrystie Adams (DOW), Denver, and William Eubanks (Meyer Glitzenstein & Crystal), DC, and Neil Levine, Denver, for Plaintiffs; Brian Collins (DOJ), DC, AUSA Coby Howell, Portland, Daniel Pinkston (DOJ), Denver, AUSA Mark Steger, Billings, Jeffrey Beelaert (DOJ), DC; Mark Stermitz (Crowley Fleck), Missoula, for Irrigators; Patrick Byorth, Bozeman, for Amici Montana Chapter of American Fisheries Society and Montana Trout Unlimited.