California dam can consider endangered trout's migration - appeals court
The James R. Browning U.S. Court of Appeals Building, home of the 9th U.S. Circuit Court of Appeals, is pictured in San Francisco, California February 7, 2017. On Tuesday afternoon, the court plans to hear arguments regarding President Donald Trump's temporary travel ban on people from seven Muslim-majority countries. REUTERS/Noah Berger
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(Reuters) - A federal appeals court has found agencies operating a dam in central California are able to protect an endangered population of Steelhead trout by releasing water to help with its migration, reversing a lower court's order finding their hands were tied by federal law.
The 9th Circuit on Friday issued a split decision finding the operators of the Twitchell Dam are allowed to consider releasing more water in order to facilitate reproductive migration of the Southern California Steelhead. The decision upended a district court’s reasoning that the law, which authorized the infrastructure’s development in the 1950s, only allowed the dam to be used to recharge the region’s aquifer, and was therefore not liable for illegal "take" under the Endangered Species Act.
The circuit panel majority determined the dam's charter allowed for other purposes beyond replenishing the aquifer, and said that law can work in harmony with the Endangered Species Act to avoid killing or harming the fish.
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“Twitchell Dam can readily be operated to provide modest releases at certain times of the year and during certain water years, while still satisfying the dam’s primary purpose of conserving water for consumptive purposes,” wrote Judge Sidney Thomas.
An earlier ruling by Judge Andre Birotte reasoned that the federal Bureau of Reclamation and the Santa Maria Water District had little discretion to protect endangered species because the dam was only intended to be used to retain water for the aquifer.
The dam is located within the Santa Maria River watershed on the Cuyama River. The 9th Circuit said the construction of the dam, in 1958, resulted in the trout rarely migrating through that passage.
Representatives for the dam operators and the environmental groups didn’t immediately respond to requests for comment.
The case is San Luis Obispo Coastkeeper et al. v. Santa Maria Valley Water Conservation District et al., United States Court of Appeals for the Ninth Circuit, case No. 21-55479.
For the environmentalists: Daniel Cooper of Sycamore Law, Jason Flanders and Erica Maharg of Aqua Terra Aeris Law Group and Margaret Morgan Hall and Linda Krop of the Environmental Defense Center.
For the dam operators: Mario Juarez of Juarez Adam & Faley and Bridget McNeil and Kevin McArdle of the U.S. Department of Justice.
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