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Environmental Law

: ESA Blawg

California business park plan withstands judicial review, impacts to fairy shrimp critical habitat upheld

By Keith Rizzardi

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Butte Environmental Council v. U.S. Army Corps of Engineers, No. 2:08-cv-1316-GEB-CMK, 2009 WL 497575 (E.D.Cal. Jan. 21, 2009)(Garland E. Burrell, Jr., U.S. District Judge)

BACKGROUND: Plaintiff Butte Environmental Council ("BEC") seeks summary judgment on its claim that the United States Army Corps of Engineers ("the Corps") violated the Clean Water Act ("CWA") when it issued a Section 404 permit authorizing the Stillwater Business Park development project ("the Project"), in Shasta County, California, and claims that the United States Fish and Wildlife Service ("FWS") violated the Endangered Species Act ("ESA") by issuing an inadequate Biological Opinion ("BiOp") for the Project, and further claims that the Corps violated that Act when issuing a Section 404 permit authorizing the Project based on the BiOp. Defendants seek summary judgment on all of BEC's claims.

The City of Redding, California, is developing the Stillwater Business Park Project southeast of downtown to enhance the City's economic stability by attracting business and industry, thereby improving the quality of life of unemployed and low-paid residents.

The Stillwater Business Park Project will directly and indirectly affect critical habitats for the threatened vernal pool fairy shrimp, endangered vernal pool tadpole shrimp (pictured above, from Yolo Conservation Plan), and threatened slender Orcutt grass.

THE BIOLOGICAL OPINION: The BiOp found the Project would result in the destruction of 234.5 acres, 5.4%, of vernal pool crustaceans in units 1 and 5 of protected vernal pool crustacean critical habitat. (BiOp at 27.) Further, the BiOp found the Project would result in the destruction of 242.2 acres, 3.7%, of unit 2 of protected slender Orcutt grass critical habitat. (BiOp at 28.) Additionally, the Project would destroy 356.6 acres of vernal pool crustacean critical habitat uplands and 242.2 acres of slender Orcutt grass critical habitat uplands. (Id. at 27-28.)... However, Defendants argue FWS reasonably relied upon mitigation measures to be imposed upon the City when making its no adverse modification determination. (Ds. Mot. at 22:1-2.) The BiOp contains proposed conservation measures for the vernal pool fairy shrimp, vernal pool tadpole shrimp, the slender Orcutt grass, and their critical habitat. (BiOp at 10-12.) Preservation would occur at both on and off site locations and would range in preservation ratios from 1:1 to 4:1 (Id.) The Incidental Take Statement's "Terms and Conditions" require the City to adhere to the BiOp's conservation measures and also imposes several conservation measures prior to the Project's start. (BiOp at 32-33.)

NOTEWORTHY EXCERPT: ...under the ESA, it is reasonable for FWS to take into consideration mitigation measures when making a "no adverse modification" of critical habitat determination. Even though the Administrative Record "makes it clear" that there will be negative impacts on critical habitat, "e same record evaluates in some detail the ways in which these impacts will be mitigated by compensation measures ..." Hayward Area Planning Association, 2004 WL 724950 *7 (N.D.Cal.2004) (holding the "dedication of 1,197 acres for the preservation and management of whipsnake critical habitat for the benefit of the whipsnake and frog" was rationally taken into account by FWS in determining there was no adverse modification of critical habitat in its BiOp).

Defendants further argue that the FWS reasonably based its "no adverse modification" determination on the entire critical habitat for the respective species… The ESA Section 7 Consultation Handbook states: “Adverse effects on individuals of a species or constituent elements or segments of critical habitat generally do not result in jeopardy or adverse modification determinations unless that loss, when added to the environmental baseline, is likely to result in significant adverse effects throughout the species entire range, or appreciably diminish the capability of critical habitats to satisfy essential requirements of the species.” See also Gifford Pinchot Task Force v. United States Fish & Wildlife Serv., 378 F.3d 1059, 1075 (9th Cir.2004) (stating "The BiOps considered the important local effects, analyzing critical habitat more broadly when individual effects were not important")...

In light of the enforceable mitigation measures and the permissible broader analysis of critical habitat, the BiOp does state a "rational connection between the facts found and the conclusion reached." Id. at 1065. Accordingly, this portion of Defendants' cross-motion is granted.

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Full post as published by ESA Blawg on March 11, 2009 (boomark / email).