CITIZEN SUIT WATCH: District Court Rejects Wildlife-Related Challenges to a Section 404 Permit in Wind Farm Dispute

A federal district court in Maine granted summary judgment to the U.S. Army Corps of Engineers (Corps) in a citizen suit challenge to its issuance of a Clean Water Act (CWA) Section 404 permit. The Corps issued the permit to allow the temporary and permanent filling of wetlands for the construction of a wind farm. In Protect Our Lakes v. U.S. Army Corps of Engineers, No. 1:13-cv-402-JDL, 2015 WL 732655 (D. Me. Feb. 20, 2015), environmental organizations and individual citizens brought suit challenging the Corps' issuance of the CWA permit, arguing that it violated the Endangered Species Act and the Bald and Golden Eagle Protection Act. Plaintiffs asserted that the Corps relied on incomplete information and ignored evidence indicating possible take of federally protected species. The court delivered a clear win for the Corps and the wind developer, issuing a ruling that sets a high bar for challenging an agency's compliance with federal wildlife laws.

Background

Evergreen Wind Power II, LLC and Maine Genlead, LLC (collectively, "Evergreen") sought to develop a large wind farm in Maine. The companies applied for a CWA Section 404 dredge-and-fill permit from the Corps, seeking authorization to permanently and temporarily fill certain wetlands and streams during construction. The Corps granted the permit. Protect Our Lakes, 2015 WL 732655 at *1.

Before issuing the permit, the Corps initiated informal consultation with the U.S. Fish and Wildlife Service (FWS) regarding potential impacts to two federally listed species, Atlantic salmon and Canada lynx. The Corps then determined that the project was "unlikely to adversely affect" the species, and the FWS concurred in the assessment, clearing the path for the Corps to issue the permit. Id. at *2.

The Endangered Species Act's Consultation Requirement

Section 7 of the Endangered Species Act and implementing rules require consultation between an "action agency" (the permitting agency; here, the Corps) and the consulted wildlife agency (here, the FWS) if the action agency determines that its action "may affect" listed species. See 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14. The agencies may opt to enter into informal consultation and, if the agencies find that "the action is not likely to adversely affect listed species," then "no further action is necessary." Protect Our Lakes, 2015 WL 732655 at *2 (quoting 50 C.F.R. § 402.13). If a "taking"¹ of an individual of a listed species "may" occur, then formal ESA consultation is required, during which FWS issues a biological opinion and an "incidental take statement" before the project may move forward. The statement includes conditions designed to minimize "take" that must be followed to avoid liability should "take" occur.

The Court Rejected Plaintiffs' Challenges to the Corps' Compliance With Federal Wildlife Law

Plaintiffs took issue with the informal consultation process between the Corps and the FWS. First, they argued that it was arbitrary and capricious for the Corps to analyze the potential take of Atlantic salmon without complete information. FWS had noted in its opinion following consultation that information on the presence of Atlantic salmon in the impacted area was spotty at best. Thus, plaintiffs argued, it was arbitrary and capricious for the Corps to conclude that the project would not adversely impact the species. Id. at * 2.

The court rejected plaintiffs' argument. Applying the Administrative Procedure Act's standard of review of a final agency action, the court held that it was not arbitrary and capricious for the Corps to rely on incomplete information.  The Endangered Species Act only requires "use [of] the best scientific and commercial data available." Id. at *3 (quoting 16 U.S.C. § 1536(a)(2)) (emphasis added). Agencies are under no obligation to seek out additional information where the available data is incomplete. Only new information—i.e., information that comes to light after the consulting agency issues its opinion— can form the basis for attacking an action agency's reliance on the consulting agency's opinion. Id. at *4.

Second, plaintiffs argued that the Corps and FWS should have issued an incidental take statement because, on their reading of the administrative record, take "may" occur. The court also rejected this argument on several independent bases. For one thing, plaintiffs named the wrong party as a defendant: only the consulted agency issues incidental take statements. Because plaintiffs failed to name FWS as a defendant, they had "no basis on which to challenge" its non-issuance. Id. 

But the court also found the challenge failed on the merits, noting that an incidental take statement is only required after formal consultation, not informal consultation. Id. Moreover, the court rejected the theory that prophylactic measures included in a permit to prevent take are ipso facto evidence that take "may" occur. FWS had found that ATV use in the construction area "may not" result in take (the implication being that it also may result in take), compelling a permitting condition prohibiting ATV use. Since potential take had been mitigated, the court found plaintiffs' theory unavailing. "Without identifying evidence … that take of Atlantic salmon may occur," the court held that "plaintiffs cannot demonstrate that the FWS violated the Endangered Species Act by failing to issue an incidental take statement." Id. at *4. 

Finally, the court rejected a separate claim under the Bald and Golden Eagle Protection Act. That statute prohibits take of bald and golden eagles without a take permit issued by the FWS. Plaintiffs argued that the Corps was required to wait until FWS acted on Evergreen's request for take authorization to issue the CWA Section 404 permit. The court rejected this theory, finding that neither the CWA nor the Bald and Golden Eagle Protection Act requires issuance of an eagle take permit as a condition for issuing a CWA permit.

Implications

The court's decision punctuates the high bar plaintiffs must clear in challenging agency consultations under the Endangered Species Act. The agencies may act based on incomplete scientific and commercial data information—here, FWS admitted that information on Atlantic salmon presence was only available for "a few of the 37 streams" impacted. Id. at *3.

The court's decision also seems to allow an action agency to mitigate the potential for wildlife take in the design of the action (e.g., with permit conditions), and use that as a basis for conducting only informal ESA consultation. Here, Evergreen's CWA permit prohibited ATV use, which "could cause take of Atlantic salmon." Id. at *4.

Finally, the court's decision highlights that claims brought against the wrong agency may be dismissed. A claim that challenges the sufficiency of the consulted agency's findings or the failure to issue an incidental take statement may only be heard if brought against the consulted agency itself. In Protect Our Lakes, plaintiffs' failure to name the FWS as a defendant sunk two of their claims:  that the agency's opinion concurring in the Corps' "adverse effects" determination was arbitrary and capricious, and that FWS should have issued an incidental take statement.

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¹ The Endangered Species Act defines "take" to mean to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect," an individual of a species, or to attempt to do so. Protect Our Lakes, 2015 WL 732655 at *2 (quoting 16 U.S.C. § 1532(19)).