Alabama v. U.S. Army Corps of Engineers, CV-90-BE-01331-E.

• Decision Date: 25 July 2006
• Docket Number: No. CV-90-BE-01331-E.,CV-90-BE-01331-E.
• Citation: 441 F.Supp.2d 1123
• Parties: State of ALABAMA, et al., Plaintiffs, v. The UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

441 F.Supp.2d 1123

State of ALABAMA, et al., Plaintiffs, v. The UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.

No. CV-90-BE-01331-E.

United States District Court, N.D. Alabama, Eastern Division.

July 25, 2006.

John M. Johnson, Warren B. Lightfoot, William S. Cox, III, Nikaa Baugh Jordan, W. Larkin Radney, IV, Lightfoot, Franklin & White LLC, Joel M. Kuehnert, Matthew H. Lembke, Bradley, Arantm, Rose & White, Birmingham, AL; R. Craig Kneisel, William D. Little, III, Office of the Attorney General, Montgomery, AL, for Plaintiffs.

Anthony P. Hoang, Robin N. Michael, Ruth Ann Storey, Charles W. Findlay, III, US Department of Justice, Environment & Natural Resources, General Litigation Section, Washington, DC; Deborah Shoemake, Joseph A. Gonzales, US Army Corps of Engineers, Mobile, AL; Sharon D. Simmons, US Attorney's Office, Birmingham, AL, for Defendants.

MEMORANDUM OPINION

BOWDRE, District Judge.

I. INTRODUCTION

This case is before the court on Florida's Renewed Motion for Temporary Restraining Order to Protect Threatened and Endangered Mussels (doc. 496). In this Motion, Florida requests that the court order the U.S. Army Corps of Engineers ("the Corps") to maintain water releases of 6,300 cubic feet per second ("cfs") from the Jim Woodruff Lock and Dam until September 5, 2006, when the U.S. Fish and Wildlife Service issues its biological opinion. For the reasons set forth below, the court finds that Florida's Motion is due to be DENIED for failure to show that the Corps' actions caused an unlawful "take" of federally protected species.

II. BACKGROUND

A. The ACF System and the Jim Woodruff Lock and Dam.

The Chattahoochee River flows from the mountains of North Georgia across the state, runs along the border between Alabama and Georgia, then joins with the Flint River at the Florida-Georgia border to form the Apalachicola River. From there, the river flows into the Apalachicola Bay and the Gulf of Mexico. Those three rivers, their tributaries, and the associated drainage area form the Apalachicola-Chattahoochee-Flint ("ACF") Basin.

The Corps operates a number of federal reservoir projects within the ACF Basin, including Jim Woodruff Dam (Lake Seminole), George W. Andrews Dam and Lake, Walter F. George Dam and Lake, West Point Dam and Lake, and Buford Dam (Lake Sidney Lanier). Congress authorized these reservoirs to operate for multiple project purposes such as flood control, hydropower generation, and navigation. Florida's Motion focuses on the alleged adverse impacts of the Corps' ACF Basin operations on the threatened and endangered species in the Apalachicola River downstream from the Jim Woodruff Lock and Dam ("Woodruff Dam").

B. The threatened and endangered ACF Species ("ACF species.")

Four federally-listed threatened and endangered species are present in the Apalachicola River downstream from Woodruff Dam: the threatened Gulf sturgeon, the endangered fat threeridge mussel,¹ the threatened purple bankclimber mussel, and the threatened Chipola slabshell mussel.² Florida contends that, since 1990, the Corps has, operated the reservoirs upstream from Woodruff Dam in a manner that favors upstream recreational and nonauthorized uses to the detriment of the downstream ACF species. Specifically, Florida argues that the Corps retains water in upstream reservoirs and fails to satisfy the interim flow needs of the ACF species during periods of low flow conditions, such as those currently experienced.

Because of the current drought, discharges into the Apalachicola River from Woodruff dam, and the corresponding water levels in the Apalachicola basin, have steadily declined since June 1, 2006. The mussels in the Apalachicola River are slow moving, and, while capable of moving to deeper water refuges for short distances, they generally cannot escape the adverse conditions they currently are experiencing in side channels and sloughs along the river. Particularly dramatic flow reductions, as have been previously experienced in the Apalachicola River, quickly sever the connection between the main river channel and occupied mussel habitats outside the main channel before mussels can relocate, resulting in stranding and death due to heat, predation, and dessication. As a result, hundreds, if not thousands of dead and dying mussels were observed in the Apalachicola River during field visits between June 12 and 14, 2006. Among the dead and dying mussels were members of two species protected under the ESA: the threatened purple bankclimber and the endangered fat threeridge. These mussels are the ACF species at issue for purposes of this memorandum opinion.

C. The Endangered Species Act ("ESA").

Florida contends that the Corps is violating the ESA by killing the threatened and endangered mussels living in the Apalachicola River downstream of Woodruff Dam. The ESA protects threatened and endangered species in two ways relevant to this case. First, § 7 requires federal agencies to consult with the U.S. Fish and Wildlife Service ("FWS") to ensure that their actions do not "jeopardize the continued existence" of any protected species or result in the "destruction or adverse modification" of "critical habitat."³ See 16 U.S.C. § 1536(a)(2) (2005). Under this section, an agency proposing an action must first determine whether the action "may affect" listed species. 50 C.F.R. § 402.11 (2005). If the agency determines that its actions "may affect" a protected species or its habitat, then the agency must generally enter into consultation with FWS. See 16 U.S.C. § 1536(a)(2) (2005).

The ESA regulations provide for two forms of consultation—informal and formal. Informal consultation is "an optional process that includes all discussions, correspondence, etc., between the Service and the Federal agency . . . designed to assist the Federal agency in determining whether formal consultation is required." Id. at § 402.13(a) (2005). If, on the other hand, the agency determines during informal consultation that its action is likely to adversely affect protected species or critical habitat, then the agency must request initiation of formal consultation with the appropriate service. See Id. at 402.14(a) & (b) (2005).

By regulation, formal consultation concludes "within 90 days after its initiation" unless extended by mutual consent of FWS and the action agency. Id. at § 402.14(e) (2005). FWS then has 45 days from the completion of formal consultation to deliver a "biological opinion" to the action agency. Id. The regulations thus provide FWS with no less than 135 days from the initiation of formal consultation to deliver a biological opinion.

The biological opinion provides FWS' assessment as to whether the action is "likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat." Id. at § 402.14(h)(3). In the event the biological opinion includes a "jeopardy opinion," the opinion must also include "reasonable and prudent alternatives," if any, to mitigate the effects of agency action. Id.

The second method relevant to this case by which the ESA protects threatened and endangered species is through § 9. Section 9 prohibits the "take" of protected species by federal agencies or private individuals. See 16 U.S.C. § 1538(a)(1)(B). The ESA defines "take" to mean "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect." 16 U.S.C. § 1532(19) (2005). The term "harass" is further defined as

an intentional or negligent act which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavior patterns which include, but are not limited to breeding, feeding, or sheltering.

50 C.F.R. § 17.3. The term "harm" means

[a]n act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavior patterns, including breeding, feeding or sheltering.

Id.

Florida argues that the Corps can kill threatened and endangered mussels only pursuant to an Incidental Take Statement. An Incidental Take Statement can be obtained through the successful completion of formal consultation. See 16 U.S.C. § 1536(b)(4) and (o); 50 C.F.R. § 402.14(I). The Statement permits some "incidental take" of protected species that "result[s] from, but are not the purpose of, carrying out an otherwise lawful activity conducted by the Federal agency." 50 C.F.R. § 402.02; see also 16 U.S.C § 1536(b)(4). The Statement specifies the impact the agency action will have on the species, sets forth "reasonable and prudent measures" to alleviate the anticipated adverse impact, and establishes "terms and conditions" necessary for the implementation of the measures. 16 U.S.C. § 1536(b)(4); see also 50 C.F.R. § 402.14(i)(ii). Pursuant to the ESA, a take that complies with an Incidental Take Statement is a lawful take. See 16 U.S.C. § 1536(o)(2). However, because the Corps has not completed formal consultation with FWS and does not possess an Incidental Take Statement, Florida contends that the Corps' river operations violate the ESA by causing a prohibited take and warrant immediate injunctive relief. Florida requests that the court order the Corps to maintain releases of 6,300 cubic feet per second ("cfs") from Woodruff Dam until September 5, 2006—the date that the biological opinion, from FWS is scheduled to be issued.⁴

D. ESA consultation and the Interim Operations Plan.

For some undefined period of time, the Corps and FWS have been engaged in informal discussions over the operation of the ACF basin reservoirs. Pursuant to its obligations under § 7 of the ESA, the Corps initiated formal consultation with FWS on March 7, 2006. FWS is scheduled to complete its consultation and issue a biological opinion on September 5, 2006. Until the biological opinion is issued, the Corps intends to...