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Kalden Constr. Co. v. Hansen Aggregates New York, Inc.

ELR Citation: 39 ELR 20119
Nos. No. 08-6200, (W.D.N.Y., 05/29/2009)

A district court remanded a portion of FWS' 2008 biological opinion that approved the Bureau of Reclamation's selected operating system for a dam along the Colorado River. The 2008 opinion replaces the FWS' 1994 opinion in which it that found that the selected operating system—modified low fluctuating flow (MLFF)—violates the ESA. This is a sharp departure from FWS' longstanding opinion. The 1994 opinion clearly determined that MLFF is likely to jeopardize the continued existence of the humpback chub and to destroy or adversely modify designated critical habitat. In 2007, just one year before it issued the 2008 opinion, FWS issued a report that confirmed the adverse effects of MLFF on chub habitat. The 2008 opinion changed all of this, but without directly addressing the effect of MLFF on the chub or its habitat. The opinion never explains why FWS' long-held position is incorrect. It never discusses the many studies that seem to confirm that MLFF destroys chub habitat. While the 2008 opinion does contain at least a limited explanation of its departure from the 1994 opinion, the FWS' logic is insufficient, even under deferential APA review. FWS has until October 30, 2009, to revise the opinion.