From our colleague Ryan Steen:

On July 10, 2009, the Animal Welfare Institute and others (”Plaintiffs”) filed a motion for a preliminary injunction to halt construction of the Beech Ridge wind project in Greenbrier County, West Virginia (the “Project”). The Plaintiffs seek the injunction to prevent unavoidable harms that they allege the Project will cause to the Indiana bat, a species listed as endangered under the Endangered Species Act (“ESA”). The Plaintiffs’ injunction request follows closely on the heels of the complaint the Plaintiffs filed in the Federal District Court for the District of Maryland (Civ. No. 09-1519), which alleges that the Project will unlawfully “take” Indiana bats in violation of Section 9 of the ESA. In their complaint and request for an injunction, the Plaintiffs assert that the Project cannot lawfully move forward without an incidental take permit (“ITP”) issued under Section 10 of the ESA. Judge Titus recently ordered that the hearing on the Plaintiffs’ motion for a preliminary injunction will be addressed in conjunction with the trial on the merits of the case, currently scheduled for October 2009.

Section 9 of the ESA makes it unlawful to “take” (intentionally or incidentally) an endangered species. Under the ESA, “take” means to “harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect [a listed species], or to attempt to engage in any such conduct.” The incidental take of an endangered species can be authorized under the ESA in two ways: (1) through an “incidental take statement” (“ITS”) issued via a Section 7 consultation, or (2) through an ITP issued under Section 10.

Section 7 of the ESA requires federal action agencies to consult with either the United States Fish and Wildlife Service (“FWS”) or the National Marine Fisheries Service to ensure that “federal actions” are not likely to jeopardize protected species or adversely affect the critical habitat of those species. Typically, a “federal action” is an action that requires a federal permit, but it may also include actions that receive federal funding and are subject to a certain level of federal control. A Section 7 consultation normally results in the issuance of a biological opinion. The biological opinion may include an ITS, which authorizes the permittee to incidentally take a specified number of listed animals.

Alternatively, a project proponent may obtain incidental take authorization through the issuance of an ITP under Section 10 of the ESA. Section 10 provides an exception to Section 9’s take prohibition, in which an applicant can apply for a permit authorizing a take if such taking is “incidental to, and not the purpose of, carrying out an otherwise lawful activity.” A project need not have a “federal nexus” to receive Section 10 take authorization. Significantly, an ITP must be accompanied by a habitat conservation plan (“HCP”) that is completed by the permit applicant and approved by FWS. The process for developing and completing an HCP can be time consuming and, as a general matter, project proponents opt for the issuance of an ITS under Section 7 instead of engaging in the Section 10 process.

Like many wind projects, the Beech Ridge project required no federal permits and does not have a federal nexus. Thus, any incidental take caused by the project would need to be authorized by a Section 10 permit to avoid a violation of the ESA. In the lawsuit, the Plaintiffs seek to require the project proponents to obtain the Section 10 ITP before engaging in any further development of the project. The Plaintiffs have taken the more urgent step of requesting a preliminary injunction because, as alleged by the Plaintiffs, the Defendants “have proceeded with construction activities at a precipitous pace, despite plaintiffs’ repeated and detailed notice prior to construction that these activities constitute violations of the ESA.” The Defendants generally deny the Plaintiffs claims and assert that pre-project studies demonstrate that no Indiana bats occupy the areas in or near the Project’s location.

Wind project proponents may face similar challenges for projects sited in or near areas occupied by a species listed under the ESA. For projects that may incidentally take listed species, project proponents may be faced with the option of obtaining an ITP under Section 10 of the ESA or obtaining an ITS through a Section 7 consultation. As indicated above, the latter is generally a more efficient process; however, many wind projects have no federal nexus and thus no Section 7 “trigger.” Project proponents should carefully examine their project to determine whether or not there is, in fact, a Section 7 trigger. If not, the project proponent should consider other options such as negotiating a Section 10 HCP/ITP process with the FWS that allows the project to move forward in a timely fashion or incorporating the use of Avian and Bat Protection Plans.