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DISCLAIMER: This blog is published for general information only - it is not intended to constitute legal advice and cannot be relied upon by any person as legal advice. While we welcome you to contact our authors, the submission of a comment or question does not create an attorney-client relationship between the Firm and you.

Entries in esa (3)

Wednesday
Apr012015

USFWS Lists Northern Long Eared Bat as Threatened Species

The U.S. Fish and Wildlife Service announced today that it will publish a final rule in the April 2, 2015 Federal Register designating the northern long eared bat as threatened under the Endangered Species Act.  The listing will become effective May 4, 2015, at which time an interim 4(d) incidental take rule will also take effect.

USFWS will be accepting comments on the interim rule for 90 days, until July 1, 2015.  The interim 4(d) rule permits incidental take for all activities taking place outside of areas affected by white nose syndrome.  In areas affected by white nose syndrome, the interim rule permits incidental take for forest management (i.e. logging) and maintenance and limited expansion of utility rights-of-way, as long as those activities are conducted according to certain habitat conservation measures such as avoiding hibernacula and avoiding certain types of cutting during summer months.    

Yet to be seen is what other activities, if any, USFWS will include in the final 4(d) rule.  In earlier comments on the 4(d) rule, USFWS stated that wind energy generation is a factor causing harm and mortality to the northern long eared bat.  Wind power developers will no doubt be submitting comments to USFWS prior to enactment of the final 4(d) rule in an attempt to gain incidental take exemption by rule.  

Friday
Mar202015

D.C. District Court Sides with USFWS on Indiana Bat ITP Issued to Ohio Everpower Project

The U.S. District Court in Washington, D.C. granted summary judgment on Wednesday to the U.S. Fish and Wildlife Service in a suit challenging the issuance of an incidental take permit to an Ohio wind power project for impacts to the endangered Indiana bat. 

USFWS had issued the ITP to Everpower’s proposed 100-turbine Buckeye Wind Power Project pursuant to Section 10 of the Endangered Species Act.  The ITP approves 26 Indiana bat takes over five years and 130 takes over 25 years.  The permit requires the project to curtail operations at cut-in speeds ranging from 3 to 6 meters per second and to mitigate impacts through the acquisition of 217 acres of habitat near Indiana bat hibernacula.

USFWS concluded that the combination of curtailment and habitat protection would be “fully commensurate with the level of impacts” and therefore met the ESA statutory requirement that the project “will, to the maximum extent practicable, minimize and mitigate the impacts” of the expected take.  Project opponents argued that USFWS should have interpreted the ESA’s “maximum extent practicable” standard to require adoption of the alternative with the lowest possible take limit without consideration of mitigation measures. 

The court disagreed, noting that the Service’s 1996 Habitat Conservation Planning and Incidental Take Permit Handbook allows “an agency to place less emphasis on whether a program is the ‘maximum that can practically be implemented by an applicant’ if an applicant can first demonstrate that the minimization and mitigation measures provide substantial benefits to the species.”  In this case, USFWS concluded that the curtailment and habitat conservation included in the ITP would “fully offset” the projected take cause by operation of the wind power project.

In short, the court noted that under the ESA, “Once the impact was fully mitigated, it was not necessary for FWS to determine whether more mitigation was possible, or whether the impact could possibly be minimized further.” 

Tuesday
Mar182014

Cape Wind Court Remands on ESA Claims, Denies MBTA Claim

A federal district court has issued an 88-page split decision in the litigation challenging federal approvals of the Cape Wind project in Nantucket Sound.  On Friday, the U.S. District Court for the District of Columbia granted summary judgment in favor of the federal defendants and developer Cape Wind Associates on all but two claims, rejecting numerous arguments advanced by a large group of project opponents that had been consolidated into one suit.  However, as a result of the plaintiffs’ success on those two claims, both of which were based on the U.S. Endangered Species Act (ESA), the matter has been remanded to the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) for further action before the Cape Wind project can go forward.

The Court found that FWS violated the ESA by not independently determining that curtailment of turbine operations was not a reasonable and prudent measure to require of the project.  The record contained the agencies’ reasoning behind not requiring curtailment (it would undercut the project purpose and scope by significantly reducing electricity generation), but the reasoning was attributed to the Bureau of Ocean Energy Management (BOEM) and Cape Wind, not to FWS.  The Court found that the ESA requires FWS to make that determination independently.  This may be a case of form over substance, with the defect curable on remand by some wordsmithing. 

Potentially more problematic was that the Court found that NMFS violated the ESA by not issuing an incidental take statement related to endangered right whales.  NMFS found that the project was “not likely to adversely affect right whales and not likely to jeopardize the continued existence of right whales” but did not categorically state that take would not occur.  The Court held that, because incidental take “may occur,” NMFS was required to include an incidental take statement with its biological opinion.  The significance here is that, in the context of formal consultation, anytime take of a listed species “may occur,” no matter how unlikely, the Court has found that it is arbitrary and capricious not to issue an incidental take statement. 

However, perhaps of most significance to other wind power developers was the Court’s denial of plaintiffs’ claim that BOEM violated the Migratory Bird Treaty Act (MBTA) by approving the Cape Wind project, even though it was acknowledged that the project, once operational, was likely or even assured to result in take of protected migratory birds.  The Court stopped short of finding that the MBTA never applied to an agency acting in a regulatory capacity, as in this case with BOEM approving the activity of a third party that would result in take of birds protected by the MBTA.  Rather, the Court found that there was not a sufficiently reasonable certainty that take under the MBTA would occur because the project has yet to be built, stating: “Even if the taking of migratory birds takes place at some point in the future, it is clear that no such taking has yet occurred and is not imminent at this point because construction of the Cape Wind project has not begun and the wind turbine generators that might take migratory birds are not operational.”

This is the second case in which a court has addressed the application of the MBTA to the federal approval of a wind power project.  This fall the U.S. District Court for the Southern District of California in Protect Our Communities Foundation v. Salazar rejected a similar MBTA claim by wind power opponents.