On October 22, 2012, the Ninth Circuit Court of Appeals held that the U.S. Fish and Wildlife Service (Service) abused its discretion when it issued a biological opinion (BiOp) and incidental take statement for the Ruby Pipeline Project, and ordered the Service to prepare a revised BiOp. Center for Biological Diversity v. U.S. Bureau of Land Management, No. 10-72356 (9th Cir. Oct. 22, 2012) (pdf).
Specifically, the court held that the Service’s "no jeopardy" and "no adverse modification" to critical habitat determinations relied on protective measures that are not specifically enforceable by the Service, and the BiOp failed to account for the impacts on listed species of withdrawing 337.8 million gallons of groundwater from 64 wells along the pipeline’s right-of-way. Because the Bureau of Land Management’s (BLM’s) record of decision and grant of right-of-way for the project relied on the flawed BiOp, the court ordered that BLM’s record of decision be set aside as well.
The Ruby Pipeline is a 42-inch diameter natural gas pipeline that spans 678 miles from Wyoming to Oregon, crossing over 1000 waters, including 209 rivers and streams that support federally endangered and threatened fish species. The Service determined that the project would adversely affect nine listed fish species and five areas of designated critical habitat, thus, formal consultation with the Service was required under section 7 of the Endangered Species Act (ESA).
In the court’s view, the main issue presented was whether, under the ESA, the Service could rely on measures designed to contribute to the recovery of the affected species if the Service could not enforce those measures under the ESA. In the course of the consultation, the Service provided Ruby with an "ESA Mitigation and Conservation Action Plan Proposal" (CAP) and requested that it be included in the final biological assessment. However, FERC, the federal consulting agency for the project, objected to including the CAP in the project description.
Ultimately, Ruby and the Service entered into an agreement under which Ruby would implement or fund, in whole or in part, the mitigation measures in the CAP, and both FERC and BLM made implementation of the CAP measures enforceable conditions of their respective project approvals. The Service then considered the Conservation Action Plan measures as background "cumulative effects" that were "reasonably certain to occur" in reaching is "no jeopardy" and "no adverse effect" determinations in the BiOp. However, the Service did not incorporate the measures in the terms and conditions of the incidental take permit, so only FERC or BLM, but not the Service, could enforce the CAP measures.
The Ninth Circuit held that this is unlawful for two reasons. First, by not incorporating the measures in the Conservation Action Plan as part of the project description, those measures could not be enforced by the Service, failure to implement them would not trigger the duty to re-initiate formal section 7 consultation and possibly invalidate the incidental take statement, and it would evade the potential for ESA citizen suits to enforce the measures. Although the measures could be enforced by FERC or BLM under other statutes and regulatory schemes, the court held that "Congress did not contemplate leaving the federal government’s protection of endangered and threatened species to mechanisms other than those specified by the ESA, the statute designed to accomplish that protection." (Slip Op. at 12735.) In short, the Service could not rely on the CAP measures in the BiOp because those measures fail to "ensure" that the federal action would not jeopardize the continued existence of the listed species or adversely modify their designated critical habitat.
Second, the court held that the Service miscategorized the CAP measures as "cumulative effects." Instead, it held that the CAP measures should have been included as part of the project because they are "unequivocally interrelated" with the FERC authorization since Ruby was required to implement them only after FERC issued its approval and all legal challenges to it had been resolved. Thus, the court set aside the BiOp and incidental take statement because the Service’s reliance on the CAP measures as "cumulative effects" was arbitrary and capricious.
The court also held that the BiOp failed to consider whether the withdrawal of 337.8 million gallons of groundwater from 64 wells along the right-of-way during construction may adversely affect listed species or adversely modify critical habitat. The court rejected the defendants’ argument that the groundwater withdrawals at many different locations along the 678-mile right-of-way would have a de minimis effect on surface water flows because it found evidence in the record that indicated the groundwater withdrawals may, in some instances, have more than a de minimis effect on stream flows and, by extension, the listed fish.
Finally, the court rejected plaintiffs arguments that the BiOp improperly relied on a "dry-ditch" construction method to calculate take levels, and that the BiOp should not have authorized take of "all eggs and fry" of threatened Lahontan cutthroat trout (Oncorhynchus clarkii henshawi) near 18 water crossings. Significantly, the court held that the Service did not have to expressly explain why numeric take limits were impracticable because it is "self-evident" that it would be impracticable to set numeric take limits for the very large number and minute size of fish eggs and fry.