March 01, 2016

Is the Endangered Species Act an endangered statute? Drought stressors on species protection

Sandi Snodgrass and Tom Jensen

The U.S. Supreme Court has remarked that the “the language, history, and structure” of the Endangered Species Act (ESA) “indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities.” Tennessee Valley Authority v. Hill, 437 U.S. 153, 174 (1978). The prolonged western drought is calling into question whether federal legislators will continue to grant imperiled species the highest priority. A recent California-focused bill passed by the U.S. House of Representatives shows that some in Congress believe that at-risk species conservation is a lower priority than agriculture and other economic interests. A California-focused bill introduced in the Senate directs agencies to maximize water supplies, but only to the extent consistent with the ESA. The Senate bill also funds water storage and other structural changes to augment water supplies for human needs and to benefit ESA-listed fish. Both bills appear to be framed to require agencies to avoid extinction of endangered species. However, neither bill appears written to foster recovery of endangered fish species, including those that are already near extinction.

H.R. 2898 – Western Water and American Food Security Act of 2015

Introduced by Representative David Valadao (R-CA) on June 25, 2015, H.R. 2898, the Western Water and American Food Security Act of 2015, was passed by the House of Representatives on July 16, 2015. It includes a wide variety of measures to address the continuing drought and has a highly prescriptive approach to ESA-listed species.

In particular, it requires the Director of the U.S. Fish and Wildlife Service to review and modify every five years the method used to calculate the incidental take levels for the Delta smelt fish species in the 2008 biological opinion for the federal Central Valley Project (CVP) based on updated information and modeling. It also directs how the modified incidental take level should be determined, including using population levels from a time period when smelt abundance was much higher than current levels. The bill directs the Secretary of the Interior to conduct additional annual surveys for Delta smelt and requires the Director to continuously evaluate, and amend as appropriate, the reasonable and prudent alternative in the Delta smelt biological opinion. It sets forth similar provisions with respect to adjustment of reasonable and prudent alternatives in the 2009 salmonid biological opinion for the CVP.

H.R. 2898 also requires the federal and state water projects to maximize water deliveries, so long as such deliveries do not directly result in a negative impact on the long-term survival of the Delta smelt and listed salmonid species, taking into account any efforts to offset impacts of adjusted operations such as habitat improvements, predator control, and fish salvage. The bill defines “negative impact on the long-term survival” as “to reduce appreciably the likelihood of the survival of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.” Notably, this differs from the “jeopardy” standard of the ESA, which refers to both survival and recovery, and to direct and indirect effects, not just survival and not solely direct effects on survival. 50 C.F.R. § 402.02. It also requires that all hatchery-spawned fish be treated the same as natural-spawned fish for purposes of any determinations under the ESA, contrary to current agency practice that aims to protect and recover wild fish stocks.

S. 1894 – California Emergency Drought Relief Act of 2015

On July 29, 2015, Senator Dianne Feinstein (D-CA) introduced S. 1894, the California Emergency Drought Relief Act of 2015. The bill contains a variety of funding and water project operational strategies. It includes major funding provisions for desalination research and development, water storage, water-efficiency programs, assistance to drought-stricken communities, loans or loan guarantees for water resources infrastructure projects, and grants for water recycling and reuse.

The bill, like the House-passed measure, includes provisions requiring agencies to maximize water supplies available through operation of California water projects, including the CVP and the State Water Project (SWP). But it expressly states that nothing in the bill authorizes any federal official to take any action that is likely to jeopardize any ESA-listed species or result in the destruction or adverse modification of critical habitat or cause any additional adverse effects beyond those anticipated under the 2008 and 2009 biological opinions applicable to the CVP and SWP. The ESA savings provision begs the question whether adherence to existing law is in fact adequate to preserve or recover the listed species, some of which are in steep decline. The Senate bill includes numerous provisions related to habitat, hatchery operations, predation, and other measures that, while not providing flows, may benefit fish populations. S. 1894 would terminate when the Governor of California declares an end to the state drought emergency or on September 30, 2017, whichever is later.

Prospects and implications

Although both bills include some provisions that would address water resources outside California, Congress has yet to consider a national or “west-wide” drought bill. Senators Murkowski and Cantwell, the Republican and Democratic leaders of the Senate Committee on Energy and Natural Resources, have expressed interest in passing a west-wide bill. A representative of Idaho water users recently criticized the Senate bill, saying it “would do little for other Western states and would actually expand California’s environmental mandates to other states,” foreshadowing the difficulty of passing broader legislation. Legislative maneuvering to attach California drought legislation to a year-end appropriations bill appears to have collapsed. This winter’s El Niño may reduce immediate pressure for legislation, though persistent drought conditions forecasted for western states will undoubtedly continue to impact species-protection policy and actions. Policymakers will grapple for strategies capable of addressing the “new normal” of water shortages without abandoning species protection. Perhaps the recent Presidential Memorandum on Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment, which encourages landscape-scale mitigation and private investment in conservation, will improve the resiliency of at-risk species to drought and other environmental stressors so that, when water is scarce, neither species nor society needs to make the ultimate sacrifice.

Sandi Snodgrass and Tom Jensen

Sandi Snodgrass is a partner in Holland & Hart’s Denver office. She practices in the areas of environmental, public lands, and energy law, with an emphasis on protected wildlife. Tom Jensen is a partner in Holland & Hart’s Washington, D.C., office, and practices in the areas of energy, natural resources, and environmental law. He is a former member of the Trends editorial board.