Dams, Duties, and Discretion: Bureau of Reclamation Water Project Operations and the Endangered Species Act
Reed D. Benson
Nearly thirty years ago, the U.S. Supreme Court decided whether “the survival of a relatively small number of three-inch fish among all the countless millions of species extant would require the permanent halting of a virtually completed dam for which Congress has expended more than $100 million.” Stunningly, the fish won, because the language, history, and structure of the Endangered Species Act showed “beyond doubt that Congress intended endangered species to be afforded the highest of priorities.” The Court acknowledged that this view of the statute would carry substantial economic costs, but was persuaded that “[t]he plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost.” The Court’s decision in Tennessee Valley Authority (TVA) v. Hill served notice that the Endangered Species Act (“ESA”) had the power to become one of the nation’s most important environmental laws.
The ESA provision that stopped the dam and saved the snail darter was section 7(a)(2), which commands each federal agency to “insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species . . . .” The Court stated that this provision “admits of no exception,” and that “[o]ne would be hard pressed to find a statutory provision whose terms were any plainer than those in § 7 of the Endangered Species Act.”
The Supreme Court interpreted that same statutory provision very differently in 2007, when it decided National Association of Home Builders v. Defenders of Wildlife. Where TVA v. Hill saw plain meaning, National Association of Home Builders (NAHB) found a “fundamental ambiguity that is not resolved by that statutory text” of § 7(a)(2); where TVA v. Hill saw no exceptions, NAHB found it reasonable to limit the application of § 7 to those actions where a federal agency exercises discretionary authority. The NAHB decision acknowledged the power of § 7(a)(2), but effectively limited the statute’s reach.
NAHB dealt with Clean Water Act (“CWA”) permitting authority; unlike TVA v. Hill, the case did not directly decide the fate of one particular dam. But the NAHB decision has strong implications for hundreds of dams associated with federal water projects, the operation of which could affect threatened or endangered species. Under the Reclamation program, the federal government built nearly 200 projects in seventeen western states for a variety of purposes, primarily irrigation. Today, the U.S. Bureau of Reclamation (“USBR”) operates these projects to supply water for a variety of purposes, chiefly irrigation of crops and pasture in the arid West. Nearly all of these projects predate the 1973 enactment of the ESA, but courts have held that USBR’s ongoing operation of these projects is a federal agency action requiring compliance with ESA § 7.
The NAHB decision bears on the question of whether § 7(a)(2) will continue to apply to the operation of Reclamation projects by USBR. In recent litigation, USBR has argued that it lacks the discretion to operate its projects so as to provide water for endangered species habitats because that water is already legally committed to existing users. By upholding the rule limiting the applicability of § 7 to discretionary federal actions, and by holding that the Environmental Protection Agency (“EPA”) lacked discretion to consider endangered species under CWA § 402, NAHB may increase the chances that USBR’s project operations will be classified as the kind of non-discretionary activity that is exempt from § 7 requirements.
Amicus briefs filed with the Supreme Court in NAHB show that water users were hoping that the Court’s decision in that case would bolster their arguments against the application of § 7 to Reclamation projects. One brief argued that § 7(a)(2) does not override an agency’s prior commitments, including contracts to supply water from federal projects:
Thus, for example, if the Bureau of Reclamation enters into contracts with water users, which obligate the Bureau to deliver water from federal reclamation facilities to the users, the Bureau does not have discretion to reallocate the water for the benefit of endangered species, absent a reservation of authority in the contracts to reallocate the water for this purpose.
Another amicus brief argued that if § 7 applies so broadly as to cover water deliveries from Reclamation projects, it would probably result in “chaos in Western water distribution, resulting in shortages, waste, and misallocation by federal officials who have neither the resources nor the experience to allocate and deliver this life-giving resource to those who put it to beneficial use.”
This article examines the applicability of § 7(a)(2) to USBR’s project operations in the wake of NAHB. Part I briefly offers background on Reclamation projects, the ESA, and cases applying § 7 to the operation of these projects. Part II examines the rule limiting the application of § 7 to discretionary agency actions, and reviews caselaw from the Ninth Circuit Court of Appeals applying this rule to federal activities. Part III discusses the Supreme Court’s NAHB decision and its implications for the application of § 7 to arguably non-discretionary federal agency actions. Part IV addresses legal and policy issues relating to the ESA and Reclamation projects, and concludes that § 7(a)(2) should continue to apply to USBR’s project operations.
The applicability of § 7 to Reclamation projects is an issue of huge importance for several reasons. First, a great many people rely on these projects for their water supply. USBR supplies water to about 20 percent of farmers in the West, providing for irrigation of close to 10 million acres. Second, the protection of § 7 may be key to the survival and recovery of many species in the West, where large-scale irrigation often places aquatic species in peril. Third, competition for water from Reclamation projects will only grow over time because of ongoing changes in the West’s water supplies and demands caused by factors such as population growth, climate change, and a growing number of species listed as threatened or endangered.
Moreover, the effect of the ESA on USBR project operations is important nationally, not just in the West. The 2001 Klamath Basin water crisis resulted from the application of § 7 to one of the oldest Reclamation projects. When longtime irrigators faced severe and unprecedented cutbacks in water supplies caused by an extreme drought and the need to protect endangered fish, it caused one of the greatest controversies in the history of the ESA. The following year, when USBR took a narrow view of its § 7 duties and restored full irrigation deliveries from the Klamath Project, salmon perished by the thousands as the Klamath River downstream suffered from low flows and high temperatures. The irrigation cutback and the salmon die-off both attracted national attention, demonstrating how events involving endangered species and water users in the West can have great national significance for the ESA.
