Fish Hatcheries, the Federal Reclamation Act, and State Water Law: Ninth Circuit Rejects Lawsuit, Reaffirming Primacy of State Water Law
The U.S. Court of Appeals for the Ninth Circuit today rejected a claim brought by environmental advocates who asserted that the Leavenworth National Fish Hatchery has been operating illegally because it has not obtained permits to divert water as required under Washington law. While the decision leaves the door ajar for the environmental advocates to pursue their claims in state forums, the decision strongly reinforces the long-held principle that federal reclamation facilities must abide by state law governing water rights. Wild Fish Conservancy v. Jewell, No. 10-3503 (issued Sept. 11, 2003).
The central question raised by the environmental plaintiffs is weather the Leavenworth hatchery, which was constructed to mitigate for damage to fisheries caused by construction of the Grand Coulee Dam, is required by Section 8 of the Reclamation Act of 1902 to obtain water rights under Washington law before it can divert water from Icicle Creek. Icicle Creek is a major tributary of the Wenatchee River, which, in turn, is a major tributary of the Columbia River. Reflecting a long-held tenet of federal policy that federal projects should generally comply with state water law, Section 8 requires the federal government to "proceed in conformity" with state water law and also includes strong language protecting the water rights of landowners, appropriators, government entities, and others established under state law. The court rejected the environmental plaintiffs' claim, concluding that the plaintiffs lacked standing. While standing decisions often leave the substantive question unaddressed, the court's reasoning in today's case reinforces the primacy of state law under Section 8. The decision therefore is likely to prove significant for federal facilities constructed under the Reclamation Act, as well as for facilities subject to other federal statutes containing language similar to Section 8. These include, among many others, Section 27 of Federal Power Act (16 U.S.C. Sec. 812) and Section 10(h) of the Northwest Power Act (16 U.S.C. Sec. 839g(h).