United States: Court Upholds Endangered Species Act Incidental Take Permit For Windfarm

Rafe Petersen is a Partner in the Washington D.C. office

On March 17, 2015, Judge Leon of the United States District Court for the District of Columbia issued a memorandum opinion upholding the United States Fish and Wildlife Service's (USFWS) issuance of an incidental take permit for the killing of endangered Indiana bats at the Buckeye Wind Power Project in Ohio. The plaintiffs, Union Neighbors United, a non-profit corporation that was formed to address issues relating to the siting of industrial wind turbines, challenged the USFWS finding that the permit will, to the maximum extent practicable, minimize and mitigate the impacts on the bats.

The Indiana Bat was placed on the Endangered Species Act (ESA) list of "endangered" species in 1967 due to large decreases in population size and an apparent lack of winter habitat. It is currently facing additional threats related to "white nose syndrome", which is disease of hibernating bats that has been associated with steep population declines. 

The Buckeye Wind Project is planned to be a 100-turbine wind generation facility in west-central Champaign County, Ohio, that will generate 657,000 megawatt hours of electricity annually. While there are no Indiana bat hibemacula in the immediate area of the project, summer resident bats occur within the vicinity of the project in June and July, and Indiana bats migrate through the area during the spring and fall. The operation of wind turbines has the potential to "take" (i.e. injure or kill) bats. Therefore, the project proponents sought incidental take permit coverage under Section 10 of the ESA. 

In the habitat conservation plan (HCP) submitted by Buckeye Wind they proposed to vary their cut-in speeds (the wind speed at which the turbines begin rotating and producing power), depending on their location and the time of year, to minimize the number of bats that collide with the turbines. Based on the take estimated to occur from this operational plan, Buckeye Wind was approved for a five-year take limit of 26 individual takes or 130 individual takes over a 25 year period (with required monitoring). In addition, Buckeye Wind proposed to acquire and protect bat habitat. 

The USFWS determined that these measures met the ESA standards of minimization of impacts of the proposed taking to the maximum extent practicable and then mitigation of any remaining impacts to the maximum extent practicable. The plaintiff argued that USFWS inappropriately applied the ESA by not ''minimizing" the take to the lowest possible amount before applying mitigation measures to offset any take that could not possibly be avoided or minimized. The court rejected this argument, citing to the 1996 Habitat Conservation Planning and Incidental Take Permit Handbook. 

"The Handbook permits an agency to place less emphasis on whether a program is the 'maximum that can practically be implemented by the applicant' if an applicant can first demonstrate that the minimization and mitigation provide substantial benefits to the species. Here, the USFWS found that the minimization and mitigation measures 'fully offset' the impact of the taking of Indiana bats, and thus, it was not necessary to determine if the plan was the 'maximum that can be practically implemented by the Applicant.'"

The Court rested its conclusion on the fact that the USFWS found that Buckeye Wind's Project has minimization measures and mitigation measures that would fully off-set any impacts. 

"Once the impact was fully mitigated, it was not necessary for USFWS to determine whether more mitigation was possible, or whether the impact could possibly be minimized further." 

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