Friends of the River Lawsuit
Yuba Water Agency – Friends of the River v. NMFS Appeal
A federal appeals court is considering an environmental group’s legal challenge to the federal government’s activities concerning two dams on the Yuba River, a case that may significantly impact owners and operators of dams and other critical infrastructure throughout the U.S. The group, Friends of the River (FOR), argues the Endangered Species Act (ESA) requires the U.S. Army Corps of Engineers (Corps) and National Marine Fisheries Service (NMFS) to analyze and mitigate impacts on protected fish species resulting from the mere existence of two federally-owned debris dams on the Yuba River – Englebright Dam (“Englebright”) and Daguerre Point Dam (“Daguerre”). Federal activities at the two dams have been subject to the ESA since the 1990s, when spring-run Chinook salmon and steelhead became eligible for protection under the act.
In February 2018, a federal trial court rejected FOR’s claims, but the group appealed to the U.S. Court of Appeals for the Ninth Circuit later that year. If the court of appeals agrees with FOR, costly new regulations may apply to owners of dams, roads, bridges, airports, levees, harbors, and other essential infrastructure. The owners and operators of such infrastructure also could be liable for harming protected species by the mere presence of the facilities, even if those facilities existed before the ESA was enacted.
The ESA is a federal law designed to protect endangered or threatened species and their critical habitats. One section of the law requires federal agencies to ensure their actions do not jeopardize the continued existence of protected species by requiring “consultation” between the federal agency considering the action (“action agency”) and a consulting agency (in this instance, NMFS). If NMFS determines the activities are likely to jeopardize the protected species or adversely modify their critical habitat, NMFS will recommend alternative actions that the action agency must implement. Another section of the law prohibits “take,” which can include harming or harassing a protected species.
Daguerre and Englebright were built by federal agencies in 1906 and 1941, respectively, to contain debris in the Yuba River from 19th century mining operations. At 24 feet in height, Daguerre has two fish ladders used by salmon and steelhead. Nearly 13 miles upstream of Daguerre, Englebright stands 260 feet high and does not have fish ladders.
In 2013 and 2014, the Corps and NMFS engaged in consultation under the ESA concerning the Corps’ activities at the two dams. NMFS prepared a “Biological Opinion” (BO) that analyzed impacts on protected species resulting from the Corps’ activities at Daguerre and a “Letter of Concurrence” that analyzed impacts from the Corps’ activities at Englebright. The consultation considered activities over which the Corps exercises discretion, including operations and maintenance of fish ladders, issuance of certain authorizations for private activities at Daguerre, and the administration of recreational and maintenance activities and related contracts at Englebright. The consultation did not analyze activities over which the Corps does not exercise discretion, nor did it analyze completed past actions or merely potential future actions by the Corps. The BO concluded that the Corps’ actions at Daguerre were not likely to jeopardize protected species or adversely modify their habitats, and the Letter of Concurrence concurred with the Corps’ conclusion that its actions at Englebright may affect, but were unlikely to adversely effect, protected species or their habitats.
In 2016, FOR filed its current lawsuit in the U.S. District Court for the Eastern District of California. FOR’s lawsuit raised two primary arguments: (1) the mere existence of the dams was part of the Corps “agency action” that should be analyzed in the consultation required by the ESA, and (2) the Corps was liable under the ESA for “take” caused to the protected species by the mere existences of the dams. FOR also argued the federal agencies should have analyzed future Corps actions relating to licenses and easements for the operation of diversions near Daguerre and power facilities near Englebright, and claimed new information required the Corps and NMFS to reinitiate consultation under the ESA.
Yuba Water Agency intervened in the lawsuit to protect its ability to deliver water and generate hydroelectric power, as well as its local investments in flood control, fisheries protection and enhancement, and recreation. After the parties submitted briefs and the court held a hearing, the court ruled against FOR on all points:
- The court disagreed with FOR that the mere existences of the dams was part of the Corps “agency action” subject to consultation under the ESA. The court reasoned the Corps did not have discretion to remove or substantially modify the two dams; therefore, the ESA did not require the Corps and NMFS to analyze the impacts of the dams on species listed under the ESA or those species’ habitats.
- The court disagreed with FOR’s argument that the Corps was liable for “take” caused by the dams. The court ruled that because the Corps does not have discretion over the existence of the dams (dam removal requires Congressional authorization and appropriations), the Corps cannot be liable under the ESA for “take” of species caused by their mere existence.
- The court ruled that the consultation did not need to analyze licenses and easements for the operation of diversions near Daguerre and power facilities near Englebright because no present, discretionary Corps actions concerning these licenses or easements were pending.
- The court ruled that that the Corps and NMFS were not required to reinitiate their consultation under the ESA.
FOR appealed the trial court’s decision to the Ninth Circuit. The Wishtoyo Foundation and Patagonia Works filed “friends of the court” briefs in support of the appeal. Yuba Water Agency, as well as the Corps and NMFS, filed briefs arguing the court of appeal should affirm the trial court’s decision. Various entities, including a group of local irrigation districts and the government of Yuba County, a coalition of California dam operators and water users, a nationwide group of electric utilities and hydroelectric project operators, and organizations representing the majority of water agencies in California and the western U.S., filed friends of the court briefs arguing the court of appeal should affirm the trial court’s decision.
Briefing in the court of appeal is complete. A hearing and subsequent ruling from the court is expected in late 2019 or 2020.
Yuba Water Agency's Position
The Agency believes the trial court is right. The ESA requires consultation only when a federal agency both takes some affirmative step to authorize or carry out an activity and has some discretion to influence or change the activity for the benefit of a protected species. That means if an agency is not taking any affirmative act or does not have discretion to act in a way to benefit a protected species, then consultation is not required.
In this case, the affirmative, discretionary actions subject to the consultation process are limited. Daguerre and Englebright were designed and built over 75 years ago; whether the Corps should continue to maintain the dams so they do not fall into disrepair is not left to its discretion, so the ongoing existence of the dams should not be subject to consultation. Moreover, the Corps has not taken any affirmative actions regarding licenses and easements for diversions at Daguerre or powerhouse operations at Englebright, so any consultation regarding these activities should take place only when the Corps is considering such actions in the future. Finally, because the Corps has no discretion to modify or remove the dams without Congressional approval and appropriations, it should not be held liable for harm to protected species caused by their mere existences.
FOR’s arguments would have far-reaching implications if adopted by the court. FOR asserts that agencies must analyze the effects of the ongoing existence of facilities on protected species and habitat, even if the agencies have no discretion to substantially modify or remove those facilities. If the court were to agree, then any agency could be required to analyze and mitigate effects of facilities over which the agencies lack authority to alter. This could make the continued operations of key infrastructure projects—such as dams, roads, bridges, airports, levees, harbors—unworkable.
Yuba Water Agency is committed to environmental stewardship and has invested significant resources toward the conservation of protected species on the Yuba River. FOR’s lawsuit, however, sidesteps these processes and seeks measures that would interfere with these efforts.
As with the successful, award-winning Yuba Accord—a comprehensive program to protect and enhance 24 miles of fish habitat in the Yuba River downstream of Englebright that was developed by the Agency with numerous federal, state, and local agencies and environmental groups, including FOR—negotiated agreements among a wide range of stakeholder groups are much more likely to achieve durable environmental success than litigation like this lawsuit filed by FOR.