The ESA and the Bureau of Reclamation: water vs. wildlife?
Reed D. Benson, Dams, Duties, and Discretion: Bureau of Reclamation Water Project Operations and the Endangered Species Act, 33 Colum. J. Envtl. L. 1 (2008).
Citing recent Supreme Court's decision in National Association of Home Builders (NAHB) v. Defenders of Wildlife, which limited the application of ESA's §7 to discretionary federal agency actions, this article examines the applicability of §7 to U.S. Bureau of Reclamation (USBR) projects. The author opines that continued "applicability of §7 to Reclamation projects is an issue of huge importance for several reasons," including "survival and recovery of many species in the West." (As readers of this ESAblawg know, the application of ESA §7 to Reclamation in the California Bay-Delta has repeatedly generated cases and discussion.)
Section §7(a)(2) of the ESA requires each federal agency "to ensure that any action authorized, funded, or carried out" by it, is not likely to jeopardize a listed species or designated critical habitat. Although the Section does not contain a limitation, the ESA implementing rules provide that § 7 applies "to all actions in which there is discretionary federal involvement or control." In NAHB, the Court upheld this limitation.
Looking forward, the author outlines numerous reasons why USBR projects should be considered discretionary and thus, subject to §7. Significantly, the article warns that excluding Reclamation projects "from §7 consultation and no-jeopardy requirement . . . could mean extinction in the wild for the Rio Grande silvery minnow and serious trouble for other species whose survival depends on adequate water from a USBR project." The author concludes that if government is not "'free to preserve the fish,'" then "that would represent a loss of existing protection for species affected by USBR projects, an unwarranted extension of the Court's recent decision in NAHB, and a rollback of a statute whereby Congress made saving species from extinction the highest of national priorities."
Submission by Contributing Author Yelizaveta Batres.