Ongoing Actions, Ongoing Issues: Trying Again to Free Federal Dams From the ESA
| Date | 01 November 2019 |
| Author |
11-2019 NEWS & ANALYSIS 49 ELR 11019
ARTICLES
Ongoing Actions,
Ongoing Issues:
Trying Again to
Free Federal
Dams From the
ESA
by Reed D. Benson
Reed D. Benson is the Director of the Natural Resources and
Environmental Law Program, Dickason Chair, and Professor
at the University of New Mexico (UNM) School of Law.
Summary
Federal dams have been the focus of major disputes
involving application of the Endangered Species Act
(ESA), especially its §7 prohibitions on federal actions
causing jeopardy to protected species. Operating
agencies and project beneciaries have sought to keep
the ESA from restricting dam operations, including
by arguing that such operations are non-discretionary
and thus exempt. In proposing new ESA implement-
ing rules, the Trump Administration suggested, but
did not formally propose, that ongoing federal actions
should be considered part of the “environmental base-
line” for §7 purposes. Redening the environmental
baseline could have dramatically changed over 25
years of practice in applying the ESA to federal dams,
reducing or even eliminating crucial §7 protection.
Although the Administration ultimately adopted a
more modest change, it apparently did so due to legal
rather than policy concerns. is Article examines
the policy goals that the Administration apparently
sought to pursue with the suggested rule, and identi-
es issues that will likely arise from ongoing eorts to
pursue them at the project level. Although the Admin-
istration decided against a national rollback, there are
sure to be ongoing battles over the application of the
ESA to federal dams.
The application of the Endangered Species Act
(ESA)1 to federal dams has been controversial and
contested since the 1970s, when the U.S. Supreme
Court fou nd in Tennessee Valley Authority v. Hill (TVA)2
that because of the ESA, “the survival of a relatively small
number of three-inch sh ... would require the permanent
halting of a virtua lly completed dam for which Congress
has expended more than $100 million.”3 e 21st century
has seen erce legal and politica l disputes over the ESA and
existing federal d ams in multiple regions, eectively pit-
ting the needs of imperiled sh and w ildlife species against
other interests—for example, irrigation water supply in
the California Centra l Valley,4 ood control and naviga-
tion in the Missouri River System,5 and hydropower in the
Columbia River Basin.6
e key ESA provision in all of these ca ses is §7(a)(2),
which prohibits federal agencies from taking any action
that would “jeopardize the continued existence” of a pro-
tected species.7 us, the statute does not allow for agency
action that would put a species at risk of extinction, even to
serve important interests such as water supply or ood con-
trol.8 ESA §7 does not allow for a balancing of these inter-
ests since the Court found in T VA that the U.S. Congress
had enacted the ESA “to halt and reverse the trend toward
species extinction, whatever the cost,”9 making endangered
species “the highest of priorities.”10
When it comes to dams, however, the U.S. government
has other priorities, and has repeatedly sought to limit
application of the ESA to water projects operated by the
U.S. Army Corps of Engineers (the Corps) or the U.S.
Bureau of Reclamation (the Bureau). Because of a long-
1. 16 U.S.C. §§1531-1544, ELR S. ESA §§2-18
2. 437 U.S. 153, 8 ELR 20513 (1978).
3. Id. at 172. e three-inch sh in that case was the endangered snail dart-
er, and the dam was Tellico, being constructed by the federal Tennessee
Valley Authority.
41 ELR 20124 (9th Cir. 2011).
2005).
38 ELR 20099 (9th Cir. 2008).
7. 16 U.S.C. §1536(a)(2).
8. Jeopardy is allowed only under an exemption granted by the so-called God
Squad. See infra note 63.
10. Id. at 172.
Author’s Note: e author thanks Ernesto Longa of the UNM law
library faculty for his research assistance on this Article, and the
Dickason endowment and the UNM School of Law for nancial
support of the work that went into it. He also thanks his colleagues
from other law schools who discussed the issues and ideas in this
Article; all errors of omission, commission, or judgment are the
author’s alone.
Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
49 ELR 11020 ENVIRONMENTAL LAW REPORTER 11-2019
standing rule that §7 applies only to “discretionary” fed-
eral ac tions,11 the government in several cases has argued
that it has no discretion in how it operates the federal dam s
at issue; if those operations were non-discretionary, they
would be exempt from §7’s procedura l mandate of “consul-
tation,” and could legally jeopardize a protected species.12
ese arguments have not always been persua sive, but the
government’s persistence in raising them—and disclai m-
ing the discretion that agencies normally enjoy having—
shows the ongoing interest in reducing the impact of the
ESA on federal dam operations.
Another dispute over the ESA a nd federal water projects
is the extent to which the impacts of existing dams and
their ongoing operations should be considered part of the
“environmental baseline,” and not attributed to the agen-
cy’s future dam operations. e eects of an a gency’s pro-
posed action are separate from the basel ine, which includes
other factors aecting the protected species and its habitat.
e distinction is important because the “jeopardy” deter-
mination applies to the eects of the agency’s actions—so
the more that negative impacts can be called part of the
baseline, the less likely it is that the proposed action itself
will be found to cause jeopardy.13 Although c ourts have
seen an existing d am’s presence as par t of the baseline, they
have largely rejected arguments that the baseline should
include ongoing operations.14
In 2018, the Donald Trump Administration sug-
gested revising the ESA implementing rules to attribute all
impacts of ongoing operations to the environmental base-
line.15 e suggested change16 would have applied to all
ongoing agency actions, but with especial ly major impli-
cations for federal dam operations. Shifting the impacts
of ongoing operations to the baseline would have greatly
reduced the chances that f uture operations would be
found to cause jeopardy, and thus modied to reduce their
impacts to listed species and their habitat. It may even have
meant that ongoing dam operations no longer needed to go
through the process of consultation to asse ss their impacts,
resulting in g reatly reduced protection for t hreatened and
endangered species a ected by federal dams.
In its nal ESA implementing rules, however, the
Administration stopped short of moving all ongoing opera-
tions into the environmental baseline. Under the new rules
announce d in Augu st 2019,17 the environmental baseline
11. 50 C.F.R. §402.03 (2018).
12. See infra notes 83-88 and accompanying text.
13. See infra Part II.
14. See infra Section II.C.
15. Endangered and reatened Wildlife and Plants; Revisions of Regulations
for Interagency Cooperation, 83 Fed. Reg. 35178 (proposed July 25,
2018) (to be codied at 50 C.F.R. Part 402) [hereinafter Proposed Section
7 Rule Notice].
16. As discussed below, the Administration did not actually propose this change,
but its proposed rulemaking notice raised several problems associated with
ESA compliance for ongoing agency actions, and requested comment on
specic rule language that it suggested could address those problems. See
infra Section III.B.
17. Endangered and reatened Wildlife and Plants; Revisions of Regulations
for Interagency Cooperation, 84 Fed. Reg. 44976 (Aug. 27, 2019) (to be
codied at 50 C.F.R. Part 402) [hereinafter Final Section 7 Rule Notice].
includes the impacts of ongoing activities and existing
facilities that the consulting agency has no discretion to
modify. e Administration apparently decided against
the suggested rule because of well-founded concerns that
it would not withstand judicial review. But by developing
a specic alternative denition and pointedly requesting
comment on that language, it also tipped its hand, show-
ing its policy goal of greatly reducing the impact of §7 on
ongoing activities. ese and other statements in the §7
rulemaking notices point to issues that will surely arise in
the Administration’s case-by-ca se implementation of the
ESA, especial ly in the context of federal dam operations.
A caveat regarding the scope of this Article: by focusing
on the environmental baseline issue, and on the application
of §7 to federal dam operations, it does not address most of
the issues posed by the Trump Administration’s new ESA
implementing r ules.18 ese rules have been w idely seen as
a rollback of important ESA provisions regarding species
listing decisions, critical habitat designation, and protec-
tion for threatened species.19 A number of environmental
groups and 17 states have already led suit to challenge
these rules on both substantive and procedural grounds.20
e new rules—which represent the most comprehensive
regulatory overhaul of the ESA in dec ades21—raise many
important legal and policy questions, most of which are
beyond the scope of this Article bec ause they do not have
special signica nce in t he context of federal water projects.
e Article begins by introducing federa l dams and the
agencies that operate them, the procedural and substan-
tive requirements of ESA §7, and the signicance of §7 for
dam operations. Part II reviews t he meaning of the envi-
ronmental baseline in ESA consultations, then focuses on
18. Along with the new §7 implementing rules, id., the Administration issued
two other sets of revised ESA rules in August 2019. One set revised the
rules regarding listing and delisting of species, along with critical habitat
decisions. Endangered and reatened Wildlife and Plants; Regulations for
Listing Species and Designating Critical Habitat, 84 Fed. Reg. 45020 (Aug.
27, 2019) (to be codied at 50 C.F.R. Part 424). Another set revised the rule
governing protection of threatened species, eliminating the “blanket 4(d)”
rule that gave a threatened species listed by the U.S. Fish and Wildlife Ser-
vice the same protection as if it were listed as endangered, so that all newly
listed threatened species will require protection through a special §4(d) rule
tailored to that species. Endangered and reatened Wildlife and Plants;
Regulations for Prohibitions to reatened Wildlife and Plants, 84 Fed.
Reg. 44743 (Aug. 27, 2019) (to be codied at 50 C.F.R. Part 17).
19. See, e.g., Adam Aton, Endangered Species: Trump Admin Rolls Out Rule
Changes to Limit Law’s Reach, G, Aug. 12, 2019 (describing reac-
tion of environmental groups and congressional Democrats), https://www.
eenews.net/greenwire/2019/08/12/stories/1060931003. Although critics
have described the rule changes as gutting the ESA, the Trump Adminis-
tration insists that it has done no such thing. Kellie Lunney, Endangered
Species: Top Interior Ocial: More Reg Rewrites Are on the Way, G,
Aug. 22, 2019 (dismissing critiques from “the press in the D.C. bubble”),
https://www.eenews.net/greenwire/2019/08/22/stories/1061032889.
20. e initial lawsuit was led by environmental groups within days of the new
rules being announced. Complaint for Declaratory and Injunctive Relief,
Ctr. for Biological Diversity v. Bernhardt, No. 3:19-cv-05206 (N.D. Cal.
Aug. 21, 2019) [hereinafter ESA Rule Challenge Complaint]. A few weeks
later, a geographically diverse group of states brought a similar challenge in
the same court. Complaint for Declaratory and Injunctive Relief, California
v. Bernhardt, No. 4:19-cv-06013 (N.D. Cal. Sept. 25, 2019).
21. As the Services noted in their proposed rule notice, the last “comprehensive”
revision to the ESA implementing rules was in 1986. Proposed Section 7
Rule Notice, supra note 15, at 35178.
Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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