Nisheet Dabadge (Nishu Dabadge) — Water Law Notes 9
Environmental Limits on Water Projects
The Endangered Species Act provides powerful protections to endangered (having an extinction risk) and threatened (having an endangerment risk) species, further protecting the habitats of endangered and threatened species from various actors, include people, the federal government, and states. In TVA, the court blocked the completion of a federal dam project (which had already spent $100 million in project costs) in order to protect the river flow required to preserve the endangered snail darter species of fish that only was known to have existed in the river in question. “Species” includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature; distinct population segments are found to exist depending on the discreteness of the population segment in relation to the remainder of the species to which it belongs, the significance of the population segment, and the segment’s conservation status in relation to the ESA’s listing standards. ;.ol9Usually, FWS and NFMS do not take into account hatchery populations when considering whether a fish is endangered (instead generally focusing on natural populations).
Section 7(a)(2) of the ESA requires federal agencies to consult with the FWS before carrying out actions that could affect a listed species and provides that federal agencies must “insure that and 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 [the critical] habitat of such species” (the critical habitat is determined at the time of species listing, so long as the designation is “prudent and determinable”). FWS, upon receiving information about potential agency actions related to water / fish, will either issue an approving Biological Opinion or a non-approving jeopardy opinion which proposes “reasonable and prudent alternatives.”
“Takes” of Listed Species — Section 9
Section 9(a)(1) of ESA prohibits anyone from “taking” (harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting) an endangered species; section 4(d) authorized the FWS to issue regulations for the protection of threatened species, and often times the section is used to protecting threatened species from takes as well. FWS’s regulations also provide that “significant habitat modification or degradation” that “actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering,” constitutes unlawful “harm” and thus is a “take” under section 9. The Supreme Court in Babbitt, outlined that habitat destruction violates section 9 only where it “actually kills or injures wildlife” and where the injury / death was “foreseeable” and not merely “accidental.”
The ESA was amended via 16 U.S.C. 1539(a), section 10(a), to allow for organizations to perform incidental “takes” of species so long as the take was merely incidental to an otherwise lawful activity (like diverting water) and the permit applicant devised an acceptable “habitat conservation plan” that minimized the impact of the take “to the maximum extent possible,” ensured that the take would not “appreciably reduce the likelihood of the survival and recovery of the species in the wild,” and be adequately funded. Biological / jeopardy opinions issued by the FWS can also include an incidental take statement (ICS) which shields agencies from section 9 liability if they implement the RPAs connected to the opinion. The Edwards Aquifer in Texas is subject to many ESA claims for “takes.”
The Public Trust Doctrine
The public trust doctrine, although applied differently and to different types of bodies of water / lands in different jurisdictions, is used in the context of water law to protect public claims to the protection of water habitats for fish / wildlife / public recreation (when they are threatened by water appropriations, etc.).
Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention
In Illinois Central Railroad Company, the Supreme Court held that the government’s title to navigable waters is “different in character from that which the state holds in lands intended for sale.” When a state holds a resource which is available for the free use of the general public (i.e. for navigation, commerce, fishing, etc.), a court will look with considerable skepticism upon any government conduct which is calculated either to reallocate that resource to more restricted uses or to subject public uses to the self-interest of private parties. In PPL Montana, the Supreme Court outlined that the public trust doctrine “remains a matter of state law.”
Joseph L. Sax, The Limits of Private Rights in Public Waters
In McCarter, New Jersey v. New York, and Illinois Central, Justice Holmes repeatedly reiterated that private property rights to water come subject to the general controls and limitations of the state in order to protect the public trust (i.e. the right of the state to protect its rivers undiminished for public use).
CVP and SWP / Bay-Delta Issues in California
The Central Valley Project and Southern Water Project operate to provide freshwater supplies to various water users, through contract, in the San Francisco Bay-San Joaquin River-Sacramento River delta system as well as users via export in Southern California. California water systems generally, and this system specifically, are subject to highly variable flows due to droughts, changes in precipitation, subsidence, earthquakes, and human demand factors. As such, there is an ongoing allocation struggle between water users who need the waters of the Bay-Delta for agricultural / municipal / industrial needs and environmentalists who seek to maintain in-stream flows for the protection of endangered and threatened species as listed under ESA and CESA, among other environmental protection acts (both federal and state). The Trump Administration has pushed for increased water supplies for contract users in the area, and recently (2020) the BoR along with the FWS / NFMS allowed for a consultation about increasing water supply usage and exportation throughout California from the Bay-Delta through a biological “no-jeopardy” opinion; California environmental agencies quickly filed suit, claiming that such increases in water usage (as well as existing usage) of Bay-Delta waters would and already has reduced flow levels to the point where various endangered and threatened species are sustaining substantial harm, further citing that the relevant federal agencies breached the ESA by issuing such a biological “no-jeopardy” opinion.
