Skip to content

Menu

LexBlog, Inc. logo
NetworkSub-MenuBrowse by SubjectBrowse by PublisherJoin the NetworkGet StartedSubscribeSupport
Contact Us
Search
Close

Judge Does Not Require Dam to Alter Water Flows for ESA Species Protection

By Chuck Sensiba, Angela Levin & Morgan Gerard on June 3, 2021
Email this postTweet this postLike this postShare this post on LinkedIn

On April 15, Judge André Birotte Jr. for the U.S. District Court for the Central District of California determined that the U.S. Bureau of Reclamation’s (Bureau) operation of the Twitchell Dam with certain water flows did not result in an unlawful take of Southern California Steelhead trout, a species listed as endangered under the federal Endangered Species Act. Plaintiffs San Luis Obispo Coastkeeper and Los Padres Forestwatch claimed that the Bureau’s Standard Operating Procedures (SOP) for the Twitchell Dam limit the timing and volume of releases from the dam in a manner that has diminished trout habitat and resulted in harm to the trout population by impairing behavioral patterns including breeding, spawning, rearing, and migrating.

The dam’s 1954 authorization act (1954 Act) set its operating priorities for the Bureau, and the district court concluded that providing water for species protection was not among Congress’ listed “other” priorities. According to the 1954 Act and historical sources, the court concluded that the dam’s purpose was to conserve water, and flows to the ocean were considered a waste. Since the 1954 Act did not provide the Bureau discretion over water uses, Judge Birotte found that the Bureau’s actions under its SOP was not the proximate cause of a prohibited take of a listed species. Moreover, the opinion stated that “the use plaintiffs seek [for the protection of species] is not incidental to the express purposes of the project, but instead is a wholly different purpose that detracts from fulfilling the project’s express purposes.”

This decision emphasizes the importance of whether a federal agency is deemed to have sufficient discretion to operate to protect listed species under the implementing legislation for a given project.

Photo of Chuck Sensiba Chuck Sensiba
Read more about Chuck SensibaEmailChuck's Linkedin Profile
Photo of Angela Levin Angela Levin
Email
Photo of Morgan Gerard Morgan Gerard

Morgan’s practice focuses on advising public and private sector clients on environmental and energy regulatory compliance, including permitting, rulemaking, and enforcement actions. She has focused on following the emerging energy trends and the associated environmental issues that arise in strengthening grid resilience and…

Morgan’s practice focuses on advising public and private sector clients on environmental and energy regulatory compliance, including permitting, rulemaking, and enforcement actions. She has focused on following the emerging energy trends and the associated environmental issues that arise in strengthening grid resilience and modernizing the energy system. Morgan has counseled clients ranging from those engaging in the hydropower licensing and relicensing process to electric utilities, wholesale generators, and distributed energy manufacturers, including electric vehicle manufacturers, solar installers and energy storage providers. She also counsels clients on matters arising under the National Environmental Policy Act, the Federal Power Act, the Clean Air Act, the Clean Water Act, the Coastal Zone Management Act, the Endangered Species Act, and similar state and local regulatory schemes.

Read more about Morgan GerardEmail
Show more Show less
  • Posted in:
    Environmental and Climate
  • Blog:
    Environmental Law & Policy Monitor
  • Organization:
    Troutman Pepper Locke
  • Article: View Original Source

Call us at 1-800-913-0988 or email sales@lexblog.com.

Facebook LinkedIn Twitter RSS
  • About LexBlog
  • The Field We Built
  • Our Beliefs
  • Our Team
  • Contact LexBlog
  • Disclaimer
  • Editorial Policy
  • Terms of Service
  • Get Started
  • Publishing Solutions
  • Compass
  • Submit a Request
  • Support Center
  • System Status
Copyright © 2026, LexBlog, Inc. All Rights Reserved.
Law blog design & platform by LexBlog LexBlog Logo