Thomas Law Blog

CEQA Updates

Keeping You Up-to-Date on the California Environmental Quality Act

Annual Operating Plans Not Subject to Discretionary Review Do Not Require ESA or NEPA Compliance


In Grand Canyon Trust v. United States Bureau of Reclamation (2012) 2012 U.S. App LEXIS 16859, the Grand Canyon Trust (Trust) charged the U.S. Bureau of Reclamation (Bureau) and the U.S. Fish and Wildlife Service (Service) with violating several federal environmental laws in the operation of the Glen Canyon Dam. The District Court granted summary judgment in favor of the Bureau and the Service. Trust appealed and the Ninth Circuit Court of Appeal dismissed the case as moot in part and affirmed in part.

In 1992, Congress passed the Grand Canyon Protection Act (GCPA), requiring the Secretary of the Interior to select an operating criterion for the Glen Canyon Dam and the Bureau to provide Congress and other interested parties annual operation plans (AOPs) describing the actual operation under chosen criterion. Trust filed suit alleging the Bureau’s AOP process violated the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), and the Administrative Procedures Act (APA). On appeal, Trust attacked the Service’s 2009 biological opinion (BiOp) and 2010 intentional take statements (ITS) as unlawful, alleging that the Bureau must comply with ESA and NEPA before issuing an AOP.

The appellate court began with the issue of mootness. The Service issued a 2011 BiOp and 2011 ITS, replacing the 2009 BiOp and 2010 ITS. The court explained that issuance of a new BiOp and ITS rendered issues on appeal relating to the documents moot. The finding of mootness also applied to related APA arguments regarding the 2009 Recovery Goals that supported the 2009 BiOp.

Turning to the remaining issues, Trust’s ESA claim alleged the Bureau should consult with the Service before issuing each AOP. The court explained that ESA’s formal consultation requirement is limited to agency actions that contain “discretionary federal involvement or control.” The court found the Bureau lacked discretion with regard to the AOP process; it cannot select a different operating criterion for the dam but must adhere to the one chosen by the Secretary. Given the AOP’s stated purpose, along with the GCPA’s explicit exclusion of ESA consultation, the court concluded the AOP is not a discretionary action but “merely a descriptive tool” that keeps the Congress and other key players updated on the Bureau’s compliance with mandated actions.

Trust’s NEPA claim alleged the Bureau should prepare an environmental assessment (EA) or environmental impact statement (EIS) for each AOP. The court disagreed. An EIS is required under NEPA only if an ongoing project “undergoes changes which themselves amount to ‘major Federal actions’.” The Bureau did not make any material changes to the operation of the dam through the AOP process, and is therefore not required to prepare an EA or EIS. Also, the court concluded that the standards for major federal actions under NEPA and agency actions under ESA are similar. Since the court already found the AOP process did not constitute an agency action under the ESA, the court further concluded the action did not constitute major federal action under NEPA.

Key Point:

Formal consultation under ESA only applies to agency actions requiring the exercise of agency discretion, and EPA compliance for on-going projects is triggered only by major federal actions which would result in a change to the status quo of a project.

Written By: Tina Thomas, Chris Butcher and Holly McMannes (law clerk)
___________
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.



dateAugust 29th, 2012byby


Leave a Reply