In a narrow win for plaintiff Wild Fish Conservancy (“Plaintiff”), the U.S. District Court for the Eastern District of Washington held that the biological opinion (“BiOp”) for the Leavenworth National Fish Hatchery (“Hatchery”) was arbitrary and capricious because the National Marine Fisheries Service (“NMFS”) failed to adequately consider the effects of climate change.
This case concerns a Hatchery located on Icicle Creek about three miles south of Leavenworth, Washington. The purpose of the Hatchery is to replace spawning habitat impacted by construction of the Grand Coulee Dam, and it is operated by the U.S. Fish and Wildlife Service (“FWS”) and the Bureau of Reclamation (“BOR”). Icicle Creek is home to two Endangered Species Act (“ESA”) listed species: the Upper Columbia River Chinook salmon and the Upper Columbia River steelhead.
Section 7 of the ESA requires that federal agencies ensure 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.” 16 U.S.C. § 1536. Section 7 also mandates consultation with the FWS or NMFS, and the agency must issue a BiOp at the conclusion of consultation. If the BiOp concludes that the action is unlikely to result in jeopardy or adverse modification of habitat, or that reasonable and prudent alternatives will avoid jeopardy or adverse modification, FWS or NMFS must issue an incidental take statement (“ITS”).
FWS and BOR engaged in consultation with NMFS from 2009-2015 to address the Hatchery’s effects on the steelhead and Chinook salmon. NMFS issued a BiOp and ITS in May 2015 which concluded that the Hatchery is not likely to jeopardize the continued existence of the species. The BiOp also specified minimum instream flows for certain months of the year, fluctuating based on presence of the species. Plaintiff brought suit to challenge the BiOp, alleging violations of the ESA and the National Environmental Policy Act.
The U.S. District Court agreed with Plaintiff on one issue: NMFS failed to adequately consider climate change in analyzing the effects of the Hatchery’s operations and water use, and due to this, the BiOp was arbitrary and capricious. NMFS used historical stream-flow data in the analysis of the Hatchery’s operations and water use. Although the Court gave deference to NMFS as the expert agency on the issue, the Court stated that NMFS should have considered the effects of climate change on future instream flows. Experts predict that climate change will cause reduced stream flows and increased water temperatures, and this will affect the species.
The problem with NMFS’s analysis is not that it used recent historical streamflow data to model the effects of hatchery operations and water use at different flow levels. The problem here is that NMFS included no discussion whatsoever of the potential effects of climate change in the BiOp’s analysis of the Hatchery’s future operations and water use. Slip Op. at 6.
Finally, the Court rejected the remainder of the challenges asserted by Plaintiff – including an allegation that NMFS was required to prepare an environmental impact statement in connection with its ITS.
The case is Wild Fish Conservancy v. Irving, No. 2:14-CV-0306-SMJ, 2016 U.S. Distr. LEXIS 162056 (E.D. Wash. Nov. 22, 2016).