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Van Ness Feldman 2015 Hydro Newsletters
Click on the issue below to view the latest 2015 hydro legal and regulatory updates from Van Ness Feldman:
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The following was prepared by Jason Morgan of the Seattle office.
Delta Smelt Case in the Ninth Circuit Court
Challenge to ESA RPA Jeopardy Process
An amicus brief was filed in May by the Northwest Hydroelectric Association, the National Hydropower Association and Northwest River Partners in this case (see link) requesting the Ninth Circuit Court to hear the issue en banc.
In May the Ninth Circuit issued its opinion in San Luis & Delta-Mendota Water Authorities v. Jewell, Case no. 11-15871. This case is commonly referred to as the “delta smelt” case, and involved a challenge to a biological opinion issued by the FWS. In that case, FWS reached a jeopardy conclusion with respect to the operation of various irrigation projects and issued a reasonable and prudent alternative (RPA) as required by the ESA. The RPA had crippling restrictions on the distribution of water to the service areas.
One of the arguments addressed on appeal was whether the FWS is required to justify the RPA as meeting the regulatory requirements for the ESA; namely that the alternative is (1) consistent with the intended purposes of the action; (2) can be implemented consistent with the scope of the Federal Agency’s legal authority; (3) is economically and technologically feasible; and (4) will not result in jeopardy. The court called the first three factors the “non-jeopardy” factors, and the fourth factor the “jeopardy factor.” Surprisingly, the Ninth Circuit concluded that the FWS had no obligation to demonstrate in the record how the non-jeopardy factors were met. The Court concluded that nothing in the statute, the regulations, the agency handbook or the Administrative Procedure Act required the FWS to explain the non-jeopardy factors. Although the ESA requires FWS to consider the jeopardy factor “We can find no similar requirement that the FWS address the remaining three non-jeopardy factors.”
This decision could have serious negative consequences for future consultations. This is especially true for hydropower operations that have an increasing propensity to receive jeopardy opinions, and rely on the RPA to avoid jeopardy. As a result of the decision, the Services have no obligation to explain why an RPA is economic (or even feasible). Such a decision could pave the way for dam removal RPA’s in the future, or onerous and cost prohibitive fish passage requirements. As such, this seems like a significant issue of potential concerns for NHA and NWHA.
The water users filed a petition for rehearing en banc prior to the May 12 deadline. If that petition is granted, 11 judges (rather than three) will re-decide the case. The Ninth Circuit’s rules allow for interested parties to file an amicus brief in support of the grant of rehearing. It is difficult to secure rehearing on any issue, and amicus support does increase the likelihood that the court will accept en banc review. Any such amicus brief must be filed within 10 day of the petition for rehearing (or May 22). The brief was filed today.
The focus of the amicus brief would be (and is required to be) why the issue presented is one of exceptional importance. The brief filed by NWHA and its partners NHA and NW River Partners focused on (1) the importance of hydropower as an economic and energy driver for the region; (2) the importance of the RPA and the three factors as a protection for agencies and applicants, and in particular hydropower operations and (3) the congressional intent in the ESA to protect applicants from unnecessary economic dislocation.
Northwest Power and Conservation Council
NWHA Comments on Councils 2014 Draft Fish and Wildlife Plan “Protected Areas”
The Council’s Fish and Wildlife Plan includes a substantial number of streams and rivers in which new hydropower development cannot occur due to environmental considerations and protected fish populations. (See map: http://www.nwcouncil.org/media/16834/protectedareas_sm.jpg) In the original 1988 protected areas provisions of the Fish and Wildlife Plan there was an exception process that allowed an applicant to 1) petition the Council to change the status of a protected area to enable new hydropower development; and 2) pursue an exception to the prohibition on new hydropower development in a protected area when a proposed project would enhance fish and wildlife resources in the region.
See NWHA’s comments that urge the Council to adopt those provisions in the 2014 Plan.
Comments may be submitted by July 9. (http://www.nwcouncil.org/fw/program/2014-03/comment-form)
May 15, 2014
Legal News Alert from the Stoel Rives ESA Law Group
U.S. Fish and Wildlife Service and NMFS Propose Significant Changes to Critical Habitat Regulations
On May 12, 2014, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (the “Services”) jointly issued three interrelated proposals concerning the designation of critical habitat under the Endangered Species Act (“ESA”). The designation of critical habitat under the ESA ensures consultation with the Services before federally funded or approved actions affecting such areas may proceed. Designation does not create wildlife refuges; however, under Section 7 of the ESA, federal agencies are required to ensure that their actions (i.e., undertaking a federal action or otherwise funding or authorizing a non-federal project) are not likely to destroy or adversely modify critical habitat. As a result, designations complicate and may discourage or impair activities on public and private lands, or otherwise devalue lands designated as critical habitat. As such, critical habitat designations are frequently controversial.
The Services’ joint proposals include two proposed rules and a draft policy characterized as clarifications and modifications that will “provide for a credible, predictable, and simplified critical habitat-designation process.” However, the proposals appear to represent a dramatic shift in the Services’ intended approaches to both designating critical habitat and to evaluating whether proposed actions may destroy or adversely modify critical habitat. Historically, the Services have considered critical habitat designations to provide minimal, if any, conservation benefit to a listed species not already provided by Section 7’s jeopardy standard. The joint proposals, however, seek to (1) more clearly contrast the “destruction or adverse modification” of critical habitat from what it means to “jeopardize the continued existence of” a listed species, and (2) formalize and expand the Services’ discretion in establishing critical habitat.
The proposed changes include:
- a new definition of “destruction or adverse modification” of critical habitat
- amendments to several existing regulations that govern critical habitat designations that would substantially expand the Services’ ability to designate large habitat areas with limited scientific support
- a draft policy on how the Services will implement exclusions from critical habitat under Section 4(b)(2)
March 27, 2014
Federal Agencies Issue Long-Awaited “Waters of the United States”
Notice of Proposed Rulemaking for Clean Water Act Jurisdiction
The long-awaited Notice of Proposed Rulemaking (NOPR) redefining the term “waters of the United States” under the federal Clean Water Act (CWA) was released on March 25, 2014, by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Army Corps) (collectively referred to as “the agencies”). The proposed rule seeks to clarify which streams, wetlands and other waters are considered “waters of the United States” and, thus, subject to permitting requirements under the CWA. The joint proposed rule will affect project development and operations across the energy, water, construction, building, agricultural and transportation sectors. Supporters of the NOPR have estimated that it would extend the jurisdictional scope of the CWA to an additional “20 million acres of wetlands and more than half our nation’s streams.” The agencies’ proposal expands the types of waters that will be considered jurisdictional and subject to CWA permitting requirements to include:
- All “tributaries” of jurisdictional waters, and all waters located within a riparian area or a floodplain, which have historically been subject to case-by-case determinations;
- Certain “isolated” wetlands and ditches dug in uplands, which were categorically excluded from jurisdiction under prior agency guidelines and case law; and
- Certain “other” waters that are deemed to have a “significant nexus” to jurisdictional waters.
Concurrent with the NOPR, the agencies also announced the issuance of an “Interpretive Rule.” The Interpretive Rule addresses certain agricultural permitting exemptions under CWA section 404(f)(l)(A) and, according to the agencies, is intended to incentivize conservation practices. Read More Download pdf.
Bulletins posted on this page are for the benefit of information to our members and do not constitute legal advice or a legal opinion, and neither creates nor constitutes evidence of an attorney-client relationship, but are for informational purposes only.
The Legal and Regulatory Committee recommends actions to the NWHA board on legal issues or regulatory rulemaking.