Defenders of Wildlife v. Norton, CIV.A. 00-1544(JR).

• Decision Date: 31 March 2003
• Docket Number: No. CIV.A. 00-1544(JR).,CIV.A. 00-1544(JR).
• Citation: 257 F.Supp.2d 53
• Parties: DEFENDERS OF WILDLIFE, et al., Plaintiffs, v. Gale NORTON, Secretary, Department of the Interior, et al., Defendants.
• Court: U.S. District Court — District of Columbia

257 F.Supp.2d 53

DEFENDERS OF WILDLIFE, et al., Plaintiffs, v. Gale NORTON, Secretary, Department of the Interior, et al., Defendants.

No. CIV.A. 00-1544(JR).

United States District Court, District of Columbia.

March 31, 2003.

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Katherine A. Meyer, Eric R. Glitzenstein, Meyer & Glitzenstein, William J. Snape III, Defenders of Wildlife, Washington, Counsel for Plaintiffs.

Samuel D. Rauch II, U.S. Department of Justice, Environment & Natural, Resources Division, Washington, Counsel for Federal Defendants.

Virginia S. Albrecht, Andrew J. Turner, Hunton & Williams, LLP, Washington, Counsel for Amici Curiae Central Arizona Water Conservation District, Coachella Valley Water District, Imperial Irrigation District, Metropolitan Water District of Southern California, San Diego County Water Authority, Arizona Power Authority.

Edward J. McGrath, David A. Fitzgerald, Verner, Liipfert, Bernhard, McPherson & Hand, Chartered, Washington, John B. Weldon Jr., Lisa M. McKnight, Salmon, Lewis & Weldon, PLC, Phoenix, AZ, Counsel for Amici Curiae Salt River Project Agricultural Improvement & Power District, Power District and Salt River Valley Water Users' Association.

Douglas S. Burdin, Hunton & Williams LLP, Washington, DC, Charles K. Hauser, John J. Entsminger, Southern Nevada Water Authority, Las Vegas, NV, Counsel for Amici Curiae Southern Nevada Water Authority.

James H. Davenport, Sara A. Price, Office of the Attorney General, Las Vegas, NV, Counsel for Amicus Curiae Colorado River Commission of Nevada.

Wilbert J. Taebel, Arizona Department of Water Resources, Phoenix, AZ, Counsel for Amici Curiae State of Arizona.

Bill Lockyer, Mary E. Hackenbracht, Douglas B. Noble, Sylvia Cano Hale, Office of the Attorney General, Los Angeles, CA, Linus Masouredis, California Attorney, General's Office, Oakland, CA, Counsel for Amici Curiae State of California, ex rel. Bill Lockyer.

J. Michael Klise, Kirsten L. Nathanson, Crowell & Moring, L.L.P., Washington, Norman D. James, Fennemore Craig, P.C., Phoenix, AZ, Wade Noble, Yuma, AZ, Counsel for Amici Curiae Wellton-Mohawk Irrigation and Drainage District, Yuma County Water Users' Association, Yuma Mesa Irrigation and Drainage District, Yuma Irrigation District.

Carol D. Angel, Senior Assistant Attorney General, Natural Resources and Environment

Section, Denver, CO, Counsel for Amici Curiae State of Colorado.

Stephen R. Farris, Assistant Attorney General, Santa Fe, NM, Counsel for Amici Curiae State of New Mexico.

Michael M. Quealy, Assistant Attorney General, Salt Lake City, UT, Counsel for Amici Curiae State of Utah.

Thomas J. Davidson, Deputy Attorney General, Cheyenne, WY, Counsel for Amici Curiae State of Wyoming.

MEMORANDUM

ROBERTSON, District Judge.

This lawsuit, brought by four American and four Mexican environmental groups, alleges violations of the Endangered Species Act (ESA) by the Bureau of Reclamation (Reclamation), the Fish and Wildlife Service (FWS), and the National Marine Fisheries Service (NMFS), in connection with Reclamation's management of the lower Colorado River. During the pendency of this suit, defendants completed a recovery plan for the Southwestern Willow Flycatcher, mooting plaintiffs' claim that the defendants had failed to issue the recovery plan and leaving just one claim— that the defendants failed to satisfy the consultation requirements of the ESA with regard to protected species in the Colorado River Delta in Mexico. Both parties have moved for summary judgment. For the reasons set forth below, defendants' motion will be granted.

Background

I. Development of the lower Colorado and the "Law of the River"

The Colorado River flows approximately 1,400 miles from the Rocky Mountains southwest to the Gulf of California in Mexico, dropping more than 12,000 feet and draining portions of seven states along the way. Updating of Hoover Dam Documents (1978), Administrative Record (AR) Bureau of Reclamation (BOR) Part I at 1. Prior to human development, water volume varied widely from season to season and from year to year, so that the river continually deposited new sediments, shifted its channel, and created and destroyed habitat. Plants and animals adapted to these extremes and developed distinct communities in flood plains, in marshes, and in the river itself. Final Biological Opinion (Apr. 30, 1997), AR FWS F-316 at 74-81.

In the late 1800's, developers began using the Colorado River for large scale irrigation projects. By 1920, California's users were diverting nearly all water from the river in times of low flow. AR BOR Part I at 1-3. Worried that California would claim appropriative rights before their own populations could put the water to use, upstream states pushed for a formal agreement to divide river waters equitably. The resulting Colorado River Compact of 1922 allocated 7.5 million acre-feet¹ to the "upper basin" states (Colorado, Wyoming, Utah, and New Mexico) and 7.5 million acre-feet to the "lower basin" states (California, Arizona, and Nevada). Colorado River Compact of 1922, Art. 111(a), AR BOR Part I at 4.

States and local communities also lobbied the federal government to build dams, in order to foster additional growth and protect already developed areas from unpredictable flooding. In 1928, Congress passed the Boulder Canyon Project Act approving the Colorado River Compact and authorizing construction of the Hoover Dam. AR BOR Part I at 5. The Hoover Dam, when it was completed in 1935, inundated miles of riparian habitat, blocked high flows in spring and early summer, and trapped massive amounts of sediment in the Lake Mead reservoir. The dam released, not only a smaller volume of water, but consistently cold and clear water. The result was significant changes in fish habitats. AR FWS F-316 at 81-90. Over the following fifteen years, two more major dams, four irrigation canals, and several smaller facilities were constructed, further changing river flows and fragmenting habitats. Id.

In 1944, the federal government signed a treaty with Mexico guaranteeing that country 1.5 million acre-feet of water per year from the Colorado (up to 1.7 million acre-feet in flood years) and allocating to Mexico any other waters arriving at Mexican points of diversion or at the Southerly International Border between the two countries. Treaty Between the United States of America & Mexico, Art. 10(b), 15(e), AR BOR Part I at 1-30. Mexico then built and completed in 1950 the Morelos Dam near the intersecting boundaries of Arizona, California, and Baja California to divert its water for use in the Mexicali and San Luis Valleys.²

A few years later, Arizona filed suit to resolve continuing disputes over the apportionment of water among the lower basin states. After a decade of litigation, the Supreme Court held that the Secretary of the Interior is bound by the Colorado River Compact, Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963), and enjoined the federal government from releasing water (other than that needed to satisfy the Mexican Treaty) except in accordance with the order of priority established by Congress: (1) river regulation, improvement of navigation, and flood control; (2) irrigation and domestic uses; and (3) power. Arizona v. California, 376 U.S. 340, 341-42, 84 S.Ct. 755, 11 L.Ed.2d 757 (1964). The injunction also affirmed the statutory apportionment of mainstream waters among the three lower basin states. Id.

The Bureau of Reclamation, which built and/or operates all of the American dams in the lower basin and serves as custodian of the river for the Secretary of the Interior, is responsible for delivering water to the lower basin states and to Mexico in accordance with the Compact, the Treaty, the Supreme Court injunction, and contracts with recipients. After all those obligations are fulfilled, little if any water actually reaches the Gulf of California in a normal year. River flows generally reach the delta only in years of flooding, although, in the 1980's, even those sporadic amounts helped to restore significant habitat.

II. Reclamation's endangered species consultation

A. Initial consultation—from 1995 to 1997

Section 7(a)(2) of the Endangered Species Act directs federal agencies to consult with the Secretary of the Interior 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 or result in the destruction or adverse modification of [designated] critical habitat." 16 U.S.C. § 1536(a)(2).³ Reclamation began consulting with FWS on new projects in the early 1980s, AR FWS F-316, at 120-22 (listing prior consultations). Until 1995, however, it had never evaluated the impacts of its routine, ongoing operations on listed species and critical habitats along the lower Colorado. In that year, Reclamation began an evaluation of its ongoing operations and initiated negotiations with the three lower basin states and other interested parties over a comprehensive, long-term Multi-Species Conservation Plan (MSCP). AR FWS F-316 at 157.

Regulations issued under § 7(a)(2) require consultations for "all actions in which there is discretionary Federal involvement or control," 50 C.F.R. § 402.03, and govern the consultation process. The consulting agency first prepares a Biological Assessment to evaluate the effects of its action on listed species in the "action area," which is defined as "all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action." Id. § 402.02. If the agency concludes that a listed species may be affected by its action, it must then formally consult with FWS (for land species) or NMFS (for marine species). 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14. The appropriate service (FWS or NMFS) must then issue its own Biological Opinion as to...