The Intersection of the Endangered Species Act and Water Projects


WMRS | Implementation of the Endangered Species Act and Related Litigation

Need to Balance Competing Interests.

The Wildlife & Marine Resources Section (WMRS) handles litigation involving the often contentious intersection between the use of water for farming, power generation, navigation, flood control, and recreation and the biological needs of threatened and endangered species.

  • A number of communities rely on water from river systems operated by the U.S. Bureau of Reclamation or the U.S. Army Corps of Engineers for irrigation, power generation, flood control, navigation, and recreation.
  • However, species protected under the Endangered Species Act (ESA) may be found in those same river systems, and require the same water for their survival.

Thus, the federal agencies are forced to harmonize their Congressional mandates of providing water for human use with their obligations under the ESA to ensure that their activities do not jeopardize the continued existence of protected species. The tension between these competing interests for the scarce water resources is often exacerbated by drought conditions, as have been experienced in recent years in the South and West.


Litigation is frequent and impassioned, with certain parties arguing that the federal agencies are being insufficiently protective of the listed species, while, simultaneously, other parties argue that the federal government is being overprotective of species, at the expense of human needs. The cases often pit upstream users against downstream users, farming communities against environmental groups, State against State, along with active involvement from Indian tribes, recreational interests, and other participants.

WMRS represents the federal action agencies (e.g., the Bureau of Reclamation or the Corps of Engineers) whose river project operations are challenged. The U.S. Fish and Wildlife Service and National Marine Fisheries Service are frequently defendants in the litigation as well, as the biological opinions issued by these agencies, which set forth the anticipated impacts upon ESA-protected resources, are often at the heart of the controversy.

Three such examples follow:


Cases of Interest:

Bennett v. Spear, 520 U.S. 154 (1997)
Kandra v. United States, 145 F.Supp.2d 1192 (D. Or. 2001)
Pacific Coast Fed'n of Fishermen's Ass'ns v. U.S. Bureau of Reclamation, 138 F.Supp.2d 1228, 1230 (N.D. Cal. 2001)
Pacific Coast Fed’n of Fishermen’s Ass’ns v. U.S. Bureau of Reclamation, 426 F.3d 1082 (9th Cir. 2005)
Hoopa Valley Tribe v. National Marine Fisheries Service, 230 F. Supp. 3d 1106 (N.D. Cal. 2017)


Updated June 27, 2018

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