On March 8, 2024, the U.S. District Court for the Western District of Washington ordered the National Marine Fisheries Service (“NMFS”) to complete formal consultation under Section 7(a)(2) of the Endangered Species Act (“ESA”), 16 U.S.C. 1536(b)(1), and issue a Biological Opinion (“BiOp”) by April 1, 2024.

The litigation concerned a failing tidal flood gate along Padilla Bay in Skagit County, Western Washington. In 2020, the Skagit County Dike Drainage and Irrigation Improvement District No. 12 (“District 12”) submitted a Joint Aquatic Resources Permit Application to the U.S. Army Corps of Engineers (“Corps”) requesting a Clean Water Act Section 404 permit allowing replacement of the failing tide gate. In December 2022, the Corps requested formal consultation from NMFS. At that time, NMFS represented that it had the information necessary to complete a BiOp. Nonetheless, when the lawsuit was filed, over 400 days had passed, and NMFS still had not completed formal consultation or issued the BiOp.

District 12 filed its lawsuit in the Western District of Washington asking the court to order NMFS to issue a BiOp by April 1, 2024. In its filings, NMFS did not dispute its obligation to complete the BiOp within 90 days (or obtain an agreement to extend the deadline to 149 days) and failed to do so. Instead, NMFS argued that a mandatory injunction was unwarranted because it would be impossible to issue the BiOp by April 1 and, regardless, NMFS planned to issue the BiOp by July 3. NMFS made several additional arguments related to workload constraints, other projects, staffing, the need to complete consultation with the Swinomish Indian Tribal Community, and the development of different assessment mechanisms, all of which the court rejected as insufficient justifications for the delay.

The court also noted that if the tide gate is not fixed before the fall flooding season begins in October, tidal flooding could cause severe irreparable harm to people who live and work in the area by threatening farmland, public sea dike trails, access to roads, residential areas, recreational areas, commercial and industrial facilities, and railroad crossings. Finally, the court noted that NMFS’s administrative inefficiency was standing as an obstacle to completion of a project undertaken in the public interest.

The case offers some encouragement to applicants for federal permits bogged down by interminable delays in NMFS’s completion of the Section 7 process.

U.S. District Magistrate Judge Brian A. Tsuchida issued the order. The case is Skagit County Dike Drainage and Irrigation Improvement District No. 12 v. National Marine Fisheries Service, et al., Case No. 2:23-cv-01954-BAT. VNF attorneys Jenna Mandell-Rice, Charlene Koski, and Sophia Amberson represented District 12.