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B. LEGAL 1. Water Newsletter The legal staff continues to inform the Commissioners, their advisers and other interested parties about developments in the courts, Congress and certain Federal agencies through the Water Newsletter. Current information can be found in the newsletter. In addition, the legal staff has prepared legal memoranda on matters needing more detailed treatment. 2. Court Cases Action has been taken in a number of cases of importance to the Upper Colorado River Basin States. These cases include: National Association of Home Builders v. Babbitt, D.C. Cir., 130 F.3d 1041, 28 ELR 20403. In this case, the D. C. Circuit holds that Endangered Species Act (ESA) § 91a-(1)'s application to a fly (the Delhi Sands Flower-Loving Fly) that exists only in California is within Congress' Commerce Clause power. The Court first holds that the application of ESA § 9 to the fly can be viewed as a proper exercise of Congress' Commerce Clause power over activity categorized as the use of the channels of interstate commerce for two reasons: First, the prohibition against takings of an endangered species is necessary to enable the government to control the transport of the endangered species in interstate commerce, because one of the most effective ways to prevent traffic in endangered species is to secure the habitat of the species from predatory invasion and destruction. Second, the prohibition on takings of endangered animals also falls under Congress' authority to prevent the channels of interstate commerce from being used for immoral or injurious purposes. Here, Congress is using this authority to prevent the eradication of an endangered species by a hospital that is presumably being constructed using materials and people from outside the State and that will attract employees, patients and students from both inside and outside the State. The Court then holds that the intrastate activity regulated by section 9 of the ESA can also be viewed as substantially affecting commerce for two primary reasons: First, the provision prevents the destruction of biodiversity and thereby protects the current and future interstate commerce that relies on it. Second, the provision controls the adverse effects of interstate competition that would result from the State adopting lower standards of endangered species protection in order to attract development. Therefore, the Court held that the application of § 9(a1111 of the ESA to the fly is constitutional. Southwest Center for Biological Diversity v. Bureau of Reclamation, 9th Cir., 143 F.3d 515, 28 ELR 21247. Appellant Southwest Center filed a citizen suit under the ESA against appellee Bureau of Reclamation alleging that appellee's operations at Hoover Dam were inundating the Lake Mead willow-cottonwood habitat and jeopardizing the continued existence of the Southwestern Willow Flycatcher, a migratory songbird listed as an endangered species under the ESA. Appellant sought injunctive relief, asking the district court to issue an order forcing Reclamation to lower Lake Mead to approximately 1178 feet above sea level to preserve the Lake Mead delta habitat. After the final Biological Opinion 160) was issued on Reclamation's operations in the Lower Colorado River Basin, appellant 29