When Congress authorizes construction of a federal water project, the authorizing statute typically specifies the purposes for the project, such as irrigation or flood control. In considering whether agencies have the discretion to operate the Twitchell Dam on the Cuyama River so as to avoid take of fish listed under the federal Endangered Species Act (“ESA”), the Ninth Circuit found the statutory allowance to operate the dam “for other purposes” to be broader than the operating agencies argued. The Ninth Circuit remanded the case, San Luis Obispo Coastkeeper v. Santa Maria Valley Water Conservation District, to the district court to determine issues of California water law and ESA compliance in the first instance.
The Twitchell Dam was built in 1958 and is jointly operated by the Bureau of Reclamation and the Santa Maria Valley Water Conservation District (collectively, the “Agencies”). Before the dam was built, Southern California Steelhead would migrate from the Cuyama River to the ocean and back during periods of high precipitation.
Public Law 774, which authorized the dam’s construction, lists the dam’s purposes as irrigation, water conservation, flood control, and “other purposes.” It also authorized construction in accordance with recommendations in a report by the Secretary of the Interior, which explains the project’s primary purposes are to recharge groundwater and eliminate the threat of flood damage. In the report, the U.S. Fish and Wildlife Service stated the dam’s impact on steelhead would be insignificant, and the California Department of Fish and Wildlife recommended against providing water releases for the fishery. Pursuant to these purposes, the dam has been operated primarily to retain water during high precipitation periods, and water is released to maximize percolation into the riverbed and recharge the groundwater basin.
The San Luis Obispo Coastkeeper and ForestWatch sued the Agencies, claiming that the Agencies’ operation of the Twitchell Dam interferes with the steelhead’s reproductive migration, an unlawful take under the ESA. The plaintiffs sought declaratory relief and an injunction that would require water releases adequate to support steelhead reproduction.
The district court granted the Agencies’ summary judgment motion based on their argument that they don’t have discretion under Public Law 774 to release water for steelhead, so they cannot be liable for take under the ESA.
In a 2-1 decision with a vigorous dissenting opinion, the Ninth Circuit reversed, for two primary reasons.
First, the appellate court understood the authority in Public Law 774 to operate the dam “for other purposes” to be broad, expansive, and to accommodate changed circumstances such as the enactment of the ESA. Therefore, according to the court, the agencies have the authority to operate the dam to avoid take.
Second, the court cited the principle of statutory construction requiring courts to give effect to both statutory enactments when possible. The court found that Public Law 774 can be read in harmony with the ESA, and therefore it must give effect to both. Ultimately, the court held that the Agencies have discretion to operate the dam for purposes besides irrigation, conservation, and flood control, which could potentially include adjusting water releases for steelhead. The court declined to reach several additional issues raised by the parties, including issues under California water law and how the agencies would need to exercise their discretion to comply with the ESA, leaving those issues for the district court to decide in the first instance.
Among other issues, on remand there will have to be a determination regarding what measures are necessary to avoid or limit take of steelhead, likely in consultation with the National Marine Fisheries Service. If those measures materially affect or limit the intended operation of the project, the compatibility of the ESA and Public Law 774 may have to be revisited. The majority concluded that Twitchell Dam can readily be operated to provide modest releases at certain times of the year and during certain water years, while still satisfying the dam’s primary purpose of conserving water for consumptive uses. But if that premise proves incorrect, and the primary purpose of the dam is being impaired to serve conservation of the steelhead, the courts will likely again be faced with a claim that to that extent at least the ESA must give way to Public Law 774.
Questions
If you have any questions regarding this Legal Alert, please contact the following attorneys or any of Kronick’s Municipalities and Special Districts or Water Law attorneys.
Lauren Bernadett
lbernadett@kmtg.com | 916-321-4347
Eric Robinson
erobinson@kmtg.com | 916.321.4576
Dan O’Hanlon
dohanlon@kmtg.com | 916.321.4522
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