June 23, 2008

Florida's 60-day Notice of Intent to Sue U.S. Army Corps of Engineers

By Florida's 60-day Notice of Intent to Sue U.S. Army Corps of Engineers

The Florida Department of Environmental Protection has issued a 60-day notice to the Army Corps of Engineers of Florida's intent to sue the Corps for alleged violations of the Endangered Species Act.  The 60-day notice is available here.  The alleged ESA violations pertain to the Corps' management of resevoirs in the Apalachicola-Chattahoochee-Flint River Basin, centered in the tri-state area of Florida, Georgia, and Alabama.

That area of the country, and in particular Georgia, has endured ongoing drought conditions.  The story behind the efforts of the states and the Corps to deal with this situation is long and complex, due mainly to the litigation that has resulted from any efforts on the part of the Corps to come to an amicable solution.  The litigation, in turn, stems in part from the competing interests that the states have.  Whereas Georgia would like to keep more of the water that flows into its part of the ACF Basin, Florida would like to maintain enough basin flows to the Sunshine State to ensure enough water for the oyster industry and for the endangered species whose habitat is in Florida's part of the basin. 

Earlier this month the U.S. Fish and Wildlife Service issued a Biological Opinion on the Revised Interim Operating Plan.  The RIOP is the latest Corps proposal for the water saga.  As the Corps noted in its summary letter to FWS, actions under the RIOP would incorporate "a drought contigency plan that allows for additional storage conservation and system recovery during periods of extreme drought, and . . . provid[e] additional opportunities to conserve storage as we enter and exit drought conditions."  Regarding the effects of the RIOP on endangered and threatened species, the FWS BiOp on the RIOP concluded that the actions under the RIOP "will not jeopardize the continued existence of the Gulf sturgeon, fat threeridge, purple bankclimber, and Chipola slabshell; and . . . will not destroy or adversely modify designated critical habitat for the Gulf sturgeon, fat threeridge, purple bankclimber, and Chipola slabshell."

In its 60-day notice, Florida noted that it would challenge the FWS BiOp "in due course," but the notice itself challenged the Corps' operations under the RIOP. In addition to alleged Section 7 violations, Florida also claims that the Corps' actions under the RIOP violate Section 9 of the ESA, which prohibits "taking" of any endangered species.  According to Florida,

The Corps will kill protected mussels by reducing Apalachicola River flows to as little as 4,500 cfs — a level not seen in the post-dam era.  While the Corps may contend it is insulated from liability for this take by virtue of the RIOP BiOp . . . the Corps may not rely on a patently unlawful incidental take statement like that contained in the RIOP BiOp.

This raises an interesting and important issue: what is the extent to which federal agencies such as the Corps are responsible for maintaining the current status of an endangered species for ongoing federal projects?  In other words, it's clear that Florida believes that the endangered mussels are worse off under the RIOP than they were under prior Corps operations, but what if the Corps had not engaged in reservoir projects in the ACF Basin in the first place?  No matter what the Corps did or not do in the past, the southeast and ACF Basin region would still be in the midst of a drought.  But because the Corps chose to proceed with reservoir projects, is it obligated to maintain a level of water flow that resulted from their operations — a flow that almost certainly would not exist under normal drought conditions (i.e. a drought that would occur without the presence of federal reservoir projects)?

The question of how an endangered species would survive absent federal projects is a critical one.  Whereas Florida's 60-day notice speaks of the dangers that accompany flows of around 5,000 cfs under the RIOP, one must ask whether the Corps is being threatened for ensuring a flow that would in any event be greater under drought conditions without federal projects.  Benita M. Dodd and Harold Brown of the Georgia Public Policy Foundation offered further insight last November:

The Chattahoochee’s low flows were lower and more frequent in the first half of the 20th century, before Lake Lanier’s construction (1957). From 1900 to 2006, the number of days the Chattahoochee at West Point Georgia flowed at 600 cubic feet per second or less was 179. Of those days, 148, or 83 percent, were before 1960. There were 49 days in 1925, 43 in 1931 and 39 in 1954. And in fact, of the 85 days with 500 cfs or lower flow on record for West Point, all are before Lake Lanier was built.

Those were some dry years. Which begs the question: Just how did endangered Apalachicola oysters and mussels survive the droughts in the early 1900s, when no one was there to regulate the flow for them? Today the Corps, following the law, must release water from Lake Lanier to provide an adequate flow for mussels and sturgeon downstream – never mind that no one has quite ascertained just what equals adequate flow for the critters.

Pacific Legal Foundation has previously raised the issue of an agency's responsibility to maintain beneficial conditions for an endangered species.  In Pacific Coast Federation of Fisherman's Associations v. United States Bureau of Reclamation (decision available here), PLF argued that "so long as the amount of water flowing downstream of Iron Gate Dam is that which would flow if the Klamath Project were not in operation, then the Bureau's use of water previously stored for irrigation . . . cannot 'legally affect' [an endangered] species."  In an unpublished opinion, however, the Ninth Circuit declined to address this argument at length.

Time will tell if the Corps plans on making a similar argument to the one advanced by PLF.

For more on this story, click on these links:

U.S. Fish & Wildlife Service site on the Southeastern Drought

AP story on Florida's 60-day notice in the Hartford Courant

Gainesville Times article (GA Lt. Gov. calls Florida's actions "shocking")

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