RENO, Nev. — Two federal agencies violated the Endangered Species Act and now must reconsider additional protection for the Lahontan cutthroat trout and other rare fish adversely affected by the 700-mile Ruby pipeline that carries natural gas from Wyoming, through Utah and Nevada into southern Oregon, a federal appeals court ruled Monday.
A three-judge panel of the 9th U.S. Circuit Court of Appeals determined the U.S. Fish and Wildlife Service and Bureau of Land Management broke the law by failing to adequately examine the potential harm to fish as a result of pumping more than 300 million gallons of water from beneath the ground in Oregon and Nevada in connection with a project completed two years ago.
The appellate court also agreed with environmentalists who said the government illegally relied on mitigation measures that have not been funded in concluding there are enough protections in place for the cutthroat trout and other fish in hundreds of rivers and streams in the four states.
"We wish the Ruby pipeline had never been built, but since it was, it's crucial that everything possible is done to minimize harm to the endangered fish that live along its route," said Noah Greenwald, endangered species director for the Center for Biological Diversity, which sued to protect the fish along with Defenders of Wildlife.
"With this victory, these rare fish will be better protected and the public won't have to bear the whole cost of the pipeline's destructive impacts," he said.
Lawyers at the Interior Department — parent of both agencies— were reviewing the ruling and had no immediate comment, said Blake Androff, the department's deputy director of communications.
Besides the Lahontan cutthroat trout, the 42-inch pipeline built in 2010 affected habitat for the Warner sucker, Lost River sucker, shortnose sucker and Modoc sucker, as well as four endangered fish in the Colorado River — the Colorado pikeminnow, humpback chub, razorback sucker and bonytail chub.
Ruby Pipeline LLC voluntarily agreed to a dozen conservation measures intended to mitigate the impacts on the fish, including constructing fish migration barriers and restoring riparian vegetation along streams — but committed to fully funding only seven of them.
As a result, the 9th Circuit ruled that the voluntary conservation measures are "unenforceable" and therefore cannot be considered in assessing whether they provide adequate offsets to keep the species from being threatened with extinction.
"Congress did not contemplate leaving the federal government's protection of endangered and threatened species to mechanisms other than those specified by the ESA, the statute designed to accomplish that protection," Judge Marsha Berzon wrote in the opinion. "Rather, it entrusted the federal government's protection of listed species and critical habitat to the act's own provisions and to the FWS, the agency with the expertise and resources devoted to that purpose."
The court also ruled that the Fish and Wildlife Service's biological opinion that concluded the project could go forward without jeopardizing the fish "provides no indication at all that FWS applied its expertise to the question of whether groundwater withdrawals may adversely affected listed fish species."
The government had argued groundwater withdrawals would have no discernible impact on listed fish species because "those species do not live in groundwater — they live in rivers and streams."
"That explanation is specious," Berzon wrote. "Obviously, fish do not live underground. But as the government recognizes, 'groundwater and surface water are physically interrelated as integral parts of the hydrologic cycle.'"
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