You might assume that if an endangered species is nowhere to be found on your property, you can rest easy. “No,” said the U.S. Fish and Wildlife Service, which decided in 2012 that if your land might be a good place for the Dusky Gopher frog to live, you might be subject to development restrictions under the Federal Endangered Species Act.
U.S. Fish and Wildlife Service (the “Service”) recently proposed revisions to its Mitigation Policy, which has been in place since 1981. March 8, 2016 Fed. Reg. 12380. The Mitigation Policy serves as “over-arching Service guidance applicable to all actions for which the Service has specific authority to recommend or require the mitigation of impacts to fish, wildlife, plants, and their habitat.” This includes development activities with a federal nexus (such as a project requiring a permit from the Army Corps of Engineers), as well as activities that implicate a host of federal statutes including the Clean Water Act, the Migratory Bird Treaty Act, and the Bald and Golden Eagle Protection Act, among others. Although the 1981 Mitigation Policy did not apply to conservation of species protected under the Endangered Species Act (ESA), the new policy eliminates that exclusion and expressly recognizes that effective mitigation is consistent with and advances the objectives of the ESA. The Service expects to issue policy specific to compensatory mitigation under the ESA that aligns with the objectives of the new Mitigation Policy.
The U.S. Fish and Wildlife Service is reportedly planning to issue a notice of intent to create an incidental take permitting regime under the Migratory Bird Treaty Act. The permitting scheme would theoretically allow otherwise lawful activities to go forward with greater regulatory certainty, while allowing USFWS to require conservation measures to protect migratory birds. USFWS has not publicly announced its plans to initiate an incidental take rulemaking process under the MBTA.
U.S. District Court Grants Summary Judgment to SunEdison's Oakfield Wind Power Project on All Counts
In an order issued Friday in Protect Our Lakes v. U.S. Army Corps of Engineers, No. 1:13-cv-402 (D. Me. Feb. 20, 2015), U.S. District Court Judge Jon Levy rejected claims that the U.S. Army Corps of Engineers’ issuance of a Clean Water Act Section 404 wetlands permit to the Oakfield wind power project in Aroostook County, Maine violated the Endangered Species Act, the Bald and Golden Eagle Act and other environmental laws.
This is the second case in Maine, following Friends of the Boundary Mountains v. U.S. Army Corps of Engineers, 24 F. Supp. 3d 105 (D. Me. 2014), which we blogged about in June, in which the court denied wind power opponents’ attempts to invalidate an Army Corps permit based on alleged violation of BGEPA and the Migratory Bird Treaty Act. These two Maine cases join a handful of recent opinions in which federal courts have rejected similar challenges to federal approvals issued to wind power projects.
Gordy Smith wrote an article for Bloomberg BNA's Daily Environment Report examining the trend in U.S. courts toward rejecting claims that federal regulatory agencies permitting wind power projects are required to obtain permits under the Migratory Bird Treaty Act (MBTA), or the Bald and Golden Eagle Protection Act (BGEPA). The article also argues, however, that wind power projects that are already operational risk enforcement action if they do not adhere to the MBTA and BGEPA. Read "The Application of Migratory Bird Protection Statutes to Wind Power Projects" from Bloomberg BNA's Daily Environment Report.