Alabama v. United States Army Corp of Engineers

Two protected mussel species inhabited the Apalachicola River. The Army Corps of Engineers (Corps) (defendant) operated a system of dams and reservoirs in the basin that controlled the river levels. In January 2006, Florida requested an injunction to protect a threatened fish species. In response, the Corps began formal consultations with the Fish and Wildlife Service (FWS) under the Endangered Species Act (ESA). In its request, the Corps admitted that flows under 8,000 cubic feet per second (cfs) also impacted protected mussels. Until the FWS issued its biological opinion in September, the Corp followed an interim operations plan (IOP) to release water based on inflows into the system. A severe drought steadily depleted water levels beginning in June 2006. Rapid drops left the slow-moving mussels stranded in habitats outside the main channel, and thousands died, including protected species. Florida obtained a temporary restraining order (TRO) requiring the Corps to release 8,000 cfs to protect the mussels. The court lowered the releases to 6,000 cfs while the parties negotiated settlement. The Corps filed a declaration from the FWS stating its biological opinion would find the IOP likely to result in “incidental take of the listed mussels” but not to “jeopardize their continued existence.” When the settlement expired, the Corps reverted to the IOP and slowly ramped down releases to 5,000 cfs to limit stranded mussels. Florida again requested a TRO and minimum flows of 6,300 cfs until the Corps and FWS completed formal consultation and the FWS issued its biological opinion.