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On November 22, 2016, in Wild Fish Conservancy v. Irving, No. 2:14-CV-0306-SMJ, 2016 U.S. Dist. LEXIS 162056 (E.D. Wash. Nov. 22, 2016), the U.S. District Court for the Eastern District of Washington held that the biological opinion issued by the National Marine Fisheries Service (NMFS) analyzing the effects of the operations of the Leavenworth National Fish Hatchery (Hatchery) on endangered salmon and steelhead in Icicle Creek was arbitrary and capricious.  Specifically, the court found that NMFS failed to adequately consider the effects of climate change on stream flows with regard to Hatchery operations.

The U.S. Fish and Wildlife Service (FWS) manages and operates the Hatchery where it rears spring Chinook salmon.  The Hatchery is located on Icicle Creek and is supported by a complex water management system, involving intake structures to divert water from Icicle Creek and supply water for the Hatchery, and high elevation reservoirs and groundwater wells to supplement surface flows.  FWS and the Bureau of Reclamation engaged in a formal consultation with NMFS under Section 7 of the Endangered Species Act to ensure that the operation of the Hatchery would not jeopardize the continued existence of endangered salmon and steelhead or adversely modify critical habitat.  NMFS issued a final biological opinion and incidental take statement in May 2015.  The biological opinion identified minimum instream flows in Icicle Creek and concluded that the operation of the Hatchery under these parameters would not result in jeopardy.

Plaintiff Wild Fish Conservancy challenged the validity of the biological opinion on multiple grounds.  The court rejected most of Plaintiff’s arguments but agreed with Plaintiff that the biological opinion did not adequately consider the potential effects of climate change in its analysis of the Hatchery’s future operations and water use.  The biological opinion discussed in detail the effects of climate change generally in the Pacific Northwest as well as models that predicted reductions in total snowpack and low-elevation snowpack, which could affect stream flows and water temperatures.  However, the biological opinion relied on historical stream flow data for its analysis of future operations and water conditions in Icicle Creek.

The court explained that the best available science in the record indicates that climate change would affect stream flows in the Northwest.  Thus, the agency was required to address the best available science, which suggests historical averages may not be the best predictors of future flows.  The agency was not required to build a model or conduct a study, but it must consider the potential effects of climate change on stream flows in Icicle Creek in connection with the Hatchery’s operations.  For this reason, the court remanded the matter for further Section 7 consultation consistent with the court’s opinion.

For more information on this decision, please contact Brittany Lewis-Roberts at blewis-roberts@somachlaw.com.

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