October 30, 2020

Uncooperative federalism: Can California lead the way with its own ESA?

Rachel Zwillinger

The San Francisco Bay-Delta is the largest estuary on the West Coast and is home to some of the most endangered species in the United States. It is also the hub of California’s water delivery system, providing water for farms and cities in the state’s parched central and southern regions. For more than a decade, federal and state agencies collaborated to synchronize federal Endangered Species Act (ESA) and California Endangered Species Act (CESA) protections to try to ensure the survival and recovery of Delta smelt, winter-run Chinook salmon, and other imperiled species while meeting other demands.

Cracks in the cooperative federalism model

But this period of cooperative federalism with respect to Bay-Delta endangered species protections ended when the U.S. Fish and Wildlife Service and National Marine Fisheries Service issued new ESA biological opinions for endangered salmonids and Delta smelt in October 2019 that allowed unprecedented levels of take (harm, including death) of these species. The state of California criticized the biological opinions as “failing to protect endangered fish species from federal water export operations” and filed a lawsuit to challenge them. The California Department of Fish and Wildlife (CDFW) soon followed the state’s legal action with its own CESA permit, which required different water project operations than those allowed under the federal biological opinions. Together, these actions signaled a significant pivot by the state of California to rely on its independent authority under CESA to protect endangered wildlife as the federal government weakened ESA protections to permit increased water diversions.

Legal questions regarding the reach and scope of the CESA alternative

CESA, however, has not been utilized to the same extent as the ESA and, given differing legal interpretations of several key provisions, whether it can effectively substitute for the federal ESA —especially in this particular context—remains unclear. Approximately a dozen lawsuits challenging the new Bay-Delta ESA and CESA permits are pending, and several present the courts with questions of first impression regarding CESA. Resolution of these issues could affect the level of protection afforded to endangered Bay-Delta fish and could have broader implications for the relationship between state and federal efforts to protect endangered species in California.

A key question is whether the U.S. Bureau of Reclamation (Reclamation), as a branch of the federal government, is required to comply with CESA when operating federal water infrastructure in the Bay-Delta. In its lawsuit challenging the new Bay-Delta ESA biological opinions, the state of California included a claim alleging that Reclamation had violated the federal Administrative Procedure Act by failing to comply with CESA. Reclamation filed a motion to dismiss California’s CESA claim, raising myriad arguments including that the United States has not waived its sovereign immunity with respect to CESA and that CESA is preempted by the federal ESA. Resolution of Reclamation’s motion to dismiss will have major implications for whether California can effectively use CESA to protect threatened and endangered Bay-Delta species.

Several state court lawsuits challenging CDFW’s CESA permit for Bay-Delta species also bring consequential legal questions to the fore. Among other issues, the cases raise questions about the role of habitat modification in CESA compliance, the relationship between CESA’s full mitigation and rough proportionality provisions, and what it means for mitigation measures to be capable of successful implementation. There are few court cases interpreting CESA, and resolution of these and other issues is likely to shape future application of CESA throughout California.

An evolving area of law worth watching

Whether California can effectively use CESA to part ways with the federal government and take on a leadership role in the Bay-Delta will depend on the outcome of several pending state and federal lawsuits. Beyond the impacts of those lawsuits on winter-run Chinook salmon, Delta smelt, and other endangered Bay-Delta species, resolution of key questions related to interpretation of CESA will determine whether California, and perhaps other states in similar efforts, can effectively protect endangered species using state law alone, in particular where landscape-level federal projects are involved. This evolving area of law is worth watching in months ahead for anyone interested in wildlife protections or the interplay between state and federal conservation laws.

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Rachel Zwillinger

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Rachel Zwillinger works on water issues for Defenders of Wildlife’s California Program.