Endangered Species Law & Policy

Last week, the U.S. Fish and Wildlife Service (Service) published in the Federal Register a notice of its Record of Decision on an Incidental Take Permit authorizing NiSource, Inc. (NiSource) to "take 10 federally listed species over a 50-year period."  NiSource is engaged in natural gas transmission, storage, and distribution, as well as electric generation, transmission, and distribution.  In 2009, NiSource applied for authorization under Section 10 of the Endangered Species Act to take 10 federally listed species "in the course of engaging in otherwise lawful gas and transmission and storage operations."  The 10 species include the endangered Indiana bat (Myotis sodalis), threatened bog turtle, (Glyptemys muhlenbergii), threatened Madison Cave isopod (Antrolana lira), endangered clubshell mussel (Pleurobema clava), endangered northern riffleshell mussel (Epioblasma torulosa rangiana), endangered fanshell mussel (Cyprogenia stegaria), endangered James spinymussel (Pleurobema collina), endangered sheepnose mussel (Plethobasus cyphyus), endangered Nashville crayfish (Orconectes shoupi), and endangered American burying beetle (Nicrophorus americanus).  Under Section 10 of the Endangered Species Act, an applicant is required to submit a proposed Habitat Conservation Plan, which must ensure that the applicant takes steps to avoid and minimize harm to listed species and mitigate the amount of harm that is unavoidable.  As summarized by the Service, the Multi-Species Habitat Conservation Plan submitted by NiSource and approved by the Service "covers a suite of activities that NiSource uses to maintain and expand their pipelines and pipeline rights-of-way in 14 eastern U.S. states.  Typical activities include right-of-way maintenance; facility inspection; upgrade and replacement of pipelines; forced relocations; and expansion projects."