BuRec

Sep 082015
 

A federal judge agreed with environmental groups that the Army Corps of Engineers and Bureau of Reclamation did not adequately study the impacts to endangered pallid sturgeon before deciding to move forward with building a concrete dam and bypass channel along the Yellowstone River (Defenders of Wildlife v. U.S. Army Corps of Engineers, 15-14-GF-BMM, D. Mont.).

Said U.S. District Judge Brian Morris in his order, issued Sept. 4:

"Federal Defendants’ argument presumes that pallid sturgeon will successfully navigate the bypass channel and successfully spawn upriver. As noted above, however, Federal Defendants have failed to conduct any analysis on the efficacy of the bypass channel at accomplishing this goal. Under these circumstances, the prudent approach requires a careful consideration of the environmental impacts before proceeding with the Project. The balance of the hardships and the public interest tip in favor of an injunction. This injunction will ensure that Federal Defendants consider all potential impacts of the Project before construction begins. This analysis will ensure that the Federal Defendants understand the impacts on pallid sturgeon and can address these impacts appropriately."

The groups suing are Defenders of Wildlife and the Natural Resources Defense Council.

Excerpts:

From the "background" portion of the order:  "The United States Fish and Wildlife Service (FWS) listed pallid sturgeon as endangered in 1990. 55 Fed. Reg. 36, 641. The Missouri River between the Fort Peck Dam and Lake Sakakawea contains the largest wild pallid sturgeon population. Fewer than 125 wild pallid sturgeons remain and the population appears in decline. (BOR 560; BOR 2216). The presence of the Fork Peck Dam on the Missouri River and the Intake Dam on the Yellowstone River account, in large part, for this decline. (BOR 567-572). The Intake Dam sits approximately 70 miles upriver from the confluence of the Yellowstone River and the Missouri River. These two barriers prevent the pallid sturgeon from swimming far enough upriver to spawn successfully."

"The United States Bureau of Reclamation (Bureau) intends to spend $59 million to replace the existing wood and rock weir at Intake Dam with a concrete weir in order to ensure continued irrigation water to the 56,800 acres currently serviced by Intake Dam."

"Defenders’ challenge arises largely from their claim that Federal Defendants have failed to comply with NEPA. Defenders argue that the new weir will continue to harm pallid sturgeon and that Federal Defendants have not conducted sufficient
analysis to determine whether the bypass channel will mitigate this harm. Defenders contend that the EA failed to include sufficient analysis and, alternatively, that federal law required that they prepare an Environmental Impact Statement (“EIS”) due to the fact that the Project will continue to cause significant impacts to the pallid sturgeon."

More coverage

Judge expects to make ruling by Sept. 8 regarding irrigation project (by Mike Francingues, Sidney Herald, 8/30/15)

NY Times op-ed (by Chris Hunter, former chief of fisheries for the Montana Department of Fish, Wildlife and Parks, 9/3/15)

Judge blocks lower Yellowstone dam over fish worries  by Matthew Brown, Associated Press (9/8/15)

Aug 212015
 

Full decision below

The Ninth Circuit has affirmed a district court opinion concluding that discharges from the Klamath Straits Drain into the Klamath River did not violate the Clean Water Act (ONRC Action v. U.S. Bureau of Reclamation, 12-35831).

The case attracted a great deal of interest because of the nature of the legal issue, which has been before the Supreme Court, most notably in Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, ___ U.S. ___, 133 S. Ct. 710 (2013), which the appeals court panel said "provid[ed] a simpler path to resolving this appeal." The court continued:

In that case, the Supreme Court considered the question of whether "the flow of water out of a concrete channel within a river rank[s] as a 'discharge of a pollutant' " under the CWA. Id. at 711. The Court answered that question in the negative. It held that "pumping polluted water from one part of a water body into another part of the same body is not a discharge of pollutants under the CWA," id. at 711, citing to its prior decision in South Florida Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95, 109–12 (2004). The L.A. County Flood Control decision acknowledged that 'storm water is often heavily polluted.' 133 S. Ct. at 712. Nonetheless, it is the addition of pollutants from a point source that is prohibited under the CWA, and the Court held that "no pollutants are 'added' to a water body when water is merely transferred between different portions of that water body." Id. at 713. A water transfer counts as a discharge of pollutants under the CWA only if the two separate bodies of water are "meaningfully distinct water bodies." Id. (quoting Miccosukee, 541 U.S. at 112).

The court found that "The record in this case demonstrates that the waters of the KSD are not meaningfully distinct from those of the Klamath River."

Summary prepared by court staff (which constitutes no part of the opinion)

The panel affirmed the district court’s summary judgment in favor of the United States Bureau of Reclamation and other defendants in a citizen suit brought by an environmental group under the Clean Water Act, alleging defendants violated the Act by discharging pollutants from the Klamath Straits Drain into the Klamath River without a permit.

The Clean Water Act limits the “discharge of pollutants,” and makes unlawful the addition from a point source of any pollutant to navigable waters without a permit. The Klamath River is a navigable water. The Klamath Straits Drain moves water from Lower Klamath Lake back to the Klamath River, and is part of the Klamath Irrigation Project operated by the Bureau of Reclamation in parts of Oregon and California.

The panel held that because the waters flowing into the Klamath River from the Klamath Straits Drain were not “meaningfully distinct,” as that term was used in L.A. Cnty. Flood Dist. v. Natural Resources Defense Council, 133 S. Ct. 710, 713 (2013) (holding that “no pollutants are ‘added’ to a water body when water is merely transferred between different portions of that water body”), a permit was not required under the Clean Water Act.

Jun 152015
 

For more Federal Register notices on the ESA and National Environmental Policy Act, go to http://www.eswr.com/fr-today The Fish and Wildlife Service has begun a “scoping period” on an Environmental Impact Statement that will examine a plan to issue Incidental Take Permits under a Midwest Wind Energy MultiSpecies Habitat Conservation Plan that is being prepared. The […]

Mar 242015
 

Just the press release, m’am PRESS RELEASE Department of Energy, Department of the Interior and Army Corps of Engineers Renew Five-Year Partnership to Advance Hydropower WASHINGTON, DC – The U.S. Department of Energy, U.S. Department of the Interior and U.S. Department of the Army for Civil Works announced today that the three agencies have extended […]

Feb 192015
 

Statement by Hollie Cannon, executive director of the Klamath Water and Power Agency, in response to the whistleblower complaint filed by PEER (received and posted Feb. 19) This is nothing more than a petty and spiteful attack on the Klamath Basin’s family farms and ranches from a disgruntled former BOR employee and an organization that […]

Feb 182015
 

Federal whistleblowers are alleging that the Bureau of Reclamation’s relationship with Klamath Basin irrigators has gotten too close, leading to the spending of nearly $70 million “without any apparent legal authority.” A 2008 contract between BuRec and the Klamath Water and Power Agency “has morphed beyond any recognizable shape from a feasibility study into a direct […]

Feb 052015
 

See our Federal Register page for more Posted for Public Inspection  NMFS begins 5-year reviews of 32 listed species: 17 evolutionarily significant units (ESUs) of Pacific salmon; 11 distinct population segments (DPSs) of steelhead; the Puget Sound/Georgia Basin DPSs of yelloweye rockfish, canary rockfish, and bocaccio rockfish; and the southern DPS of eulachon | More […]

Feb 022015
 
Lawsuit filed over dams' effects on pallid sturgeon

Defenders of Wildlife and Natural Resources Defense Council have sued three federal agencies “demanding that [they] fix their dam operations that threaten the existence of wild pallid sturgeon.” (press release) (complaint) “Although the impacts of these dams have been well documented for more than 20 years, the agencies have avoided their obligations under the Endangered […]