Endangered Species Law & Policy

Over the past decade, proponents of an effort to remove four dams on the lower Klamath River have hit a series of roadblocks.  The most recent came on July 16, 2020, when the Federal Energy Regulatory Commission (FERC) voted 3-0 to partially transfer the license for the four dams to the Klamath River Renewal Corporation (KRRC) but also required PacifiCorp, the current owner and operator of the dams, to remain a co-licensee.  FERC determined that retaining PacifiCorp as co-licensee is in the public interest because of significant uncertainty regarding the proposed dam ...

On February 27, 2018, the National Marine Fisheries Service (Service) published a 90-day finding on the Karuk Tribe and Salmon River Restoration Council’s (Petitioners) petition to list the Upper Klamath-Trinity Rivers Basin (UKTR) Chinook salmon (Oncorhynchus tshawtscha) evolutionarily significant unit (ESU) as endangered or threatened.  Based on the information included in Petitioners’ filing, the Service found that listing the UKTR ESU as endangered or threatened under the Endangered Species Act (ESA) may be warranted.

The Service’s determination follows a ...

In Friends of the River v. National Marine Fisheries Service, the U.S. District Court for the Eastern District of California rejected challenges to Army Corps of Engineers and National Marine Fisheries Service decisions regarding the impact of dams, hydropower facilities, and water diversions along the Yuba River on listed fish species, the spring-run Chinook salmon (Oncorhynchus tshawytscha), the Central Valley steelhead (Oncorhynchus mykiss), and the North American green sturgeon (Acipenser medirostris).  In so doing, the court addressed a number of issues that may arise ...

On April 28, 2010, the U.S. District Court for the Western District of Washington granted a motion for summary judgment filed by Wild Fish Conservancy, holding that EPA and NMFS failed to use the best scientific and commercial data available in their informal consultation regarding EPA's approval of water-quality standards that exempted salmon farms from various state water quality standards.  Wild Fish Conservancy v. U.S.E.P.A., No. C08-0156, 2010 WL 1734850 (W.D. Wash April 28, 2010).

Specifically, the court held that when EPA and NMFS engaged in informal consultation over EPA's approval of the disputed water quality standards, they should have considered the recent recovery plans for Puget Sound Chinook salmon (2007) and for the Southern Resident Killer Whales (2008) (PDF).  Both recovery plans expressly stated that they were developed based on the best scientific data available regarding each species.  The letter that NMFS issued concurring in EPA's not-likely-to-adversely-affect determination referenced three earlier studies prepared by NMFS and one prepared by the Washington State Department of Natural Resources, but not the more recent recovery plans.  Indeed, the court found that the administrative record was devoid of any mention of the two recovery plans.

Ultimately, the court ordered EPA and NMFS to reconsider whether formal consultation is required taking into account the best available science.