Federal Statutes

Question 1

Endangered Species Act

Answer 1

Section 4: “section 4 listing”
- Secretaries of Interior and Commerce must list species that are endangered or threatened through all or part of their range and designate critical habitat.
Section 4 is the triggering section of the ESA - If a species is not listed, no ESA analysis required.

Section 9: Prohibits a “take” of any listed species.

Section 7: Federal agency action must go through consultation if action “may affect” a listed species.
Provides an incidental take statement.
Analysis: “Do I have a federal agency taking action such that a Section 7 consultation may be involved?”

Section 10: Non-federal actors can secure an “incidental take permit” after the preparation of a habitat conservation plan.

Goal of Section 7 and Section 10 is to get “take coverage”

Question 2

National Environmental Policy Act (NEPA)

Answer 2

Requires federal agencies to prepare an EIS or an EA whenever it recommends legislation or undertakes a major federal action with a significant effect on the quality of the human environment.

When this requirement is triggered for water resource management:
Any time there’s a federal actor taking a federal action, you do a NEPA analysis.

But then debate will be “is it major/significant?”

Can also be triggered when doing something positive for the environment
(e.g., dam removals).

Does not require a particular substantive outcome - actors just have to put out reasonable alternatives. Gets you evaluation of alternatives.

May be carve outs on “significant effect on quality…”

NEPA may slow down a project, but it won’t stop it.

Question 3

Wild and Scenic Rivers Act

Answer 3

Declares that certain rivers shall be preserved in their natural and free flowing condition.
- The river must be declared by Congress to be wild and/or scenic
- State law acts are very similar

No FERC (Federal Power Act) licensed dams and all other federal agencies from constructing facilities in designated river segments.

Express water right available—must be consistent with state law and unappropriated water available at time of designation.

Congress’ authority limited to rivers over which it has interstate Commerce Clause authority.
- e.g., with tiny non-navigable creek, probably would be hard to get Congress to declare it a wild and scenic river

Question 4

Federal Power Act (FPA)

Answer 4

Dams:
1. Federally owned and operated (Bureau, Corps, TVA)

2. Federal and state licensed
   i. Federal Energy Regulatory Commission (FERC)
   ii. State licensing requirements (e.g., OWRD)
3. Privately owned, non-licensed
   i. Vast majority of dams
   ii. Small, on non-navigable streams, low KW production
   iii. Largely unregulated at decommission

Question 5

When does FERC have jurisdiction?

Answer 5

A project requires a FERC license if:
i. Located on a navigable water of the U.S.
ii. Occupies land of the U.S.
iii. Uses surplus water or water power from a government dam OR
iv. Located on a body of water over which Congress has Commerce Clause jdx

AND the project affects the interest of interstate commerce

Question 6

Clean Water Act (CWA)

Answer 6

3 major sections

1. Section 301/402—NPDES Permit Program, effluent limitations
2. Section 303—Ambient Water Quality Standards, total maximum daily loads (TMDLs)
   - Won’t be tested on this
3. Section 404—Dredge and Fill Permit
   - Jurisdictional waters (navigable waters) of the U.S.
   - Waters of the U.S. rule
   - From “significant nexus” test to “continuous surface connection” test (Supreme Court changed the test)