ENVIRONMENTAL LAW SERIES: Potential Reduced Construction Impact of Endangered Species Act LEGALLY SPEAKING Over the last 47 years, the Endangered Species Act (ESA) has affected construction in ways small and large, including by delaying many projects, changing the alignment or location of some projects, limiting the scope of other projects, and preventing or canceling some projects altogether. Enacted in 1973, the ESA’s primary purpose is to protect listed threatened or endangered species from future harm, including by preventing harm to such species’ habitats. The ESA applies to construction projects that involve the federal government, are subject to federal oversight, or that impact listed species and their habitat. Construction projects that require a National Pollutant Discharge Elimination System (NPDES) permit, which includes a substantial percentage of deep foundation projects, are subject to the ESA. The ESA requires federal agencies to ensure that government action “is not likely to jeopardize the continued existence of [a listed species] or result in the destruction or adverse modification” of a designated critical habitat. See 16 U.S.C. § 1536(a)(2). If a government agency determines that a project is likely to adversely affect a listed species or critical habitat, the agency must consult with the U.S. Fish and Wildlife Service (FWS) and/or the National Marine Fisheries Service (NMFS), the two federal agencies charged with administering the ESA. During this consultation, a written analysis is submitted in the form of a Biological Assessment or Biological Evaluation. A Biological Assessment is required for “major construc- tion activities,” federal actions that may significantly affect the quality of the human environment. A Biological Evaluation is a less comprehensive analysis used when a Biological Assessment is not required. After consultation has concluded, FWS or NMFS will issue either a letter of concurrence that the proposed action is not likely to jeopardize a listed species, or a biological opinion. If the biological opinion finds the project is likely to jeopardize a listed species, FWS and NMFS will develop reasonable alternatives to avoid adverse effects. If the biological opinion concludes the project is not likely to jeopardize a listed species, FWS or NMFS will issue an incidental take statement if it finds the proposed action will result in an incidental taking (take) of a species. The ESA generally prohibits the taking of a listed species. To take means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Federal Brian S. Wood, partner, and Miranda Millerick, associate at Smith Currie As an example, in Defenders of Wildlife v. The new implementing regulations are likely to minimize the impact of the ESA on construction activities. courts have held that a person takes a listed species “when she disrupts that species’ ‘normal behavioral patterns’ or causes indirect injury by ‘habitat modification.’ ” Defenders of Wildlife v. United States 343 (4 Cir. 2019). An incidental take statement, however, sets terms and conditions on permissible takes. Even if a project does not involve the federal government, an incidental take permit from FWS and/or NMFS may nevertheless be required. One who knowingly takes a listed species without a valid permit can be subject to civil and criminal penalties, including imprisonment. Violating the terms of the permit would also result in an illegal take. Department of the Interior, 931 F.3d 339, th United States Department of the Interior, decided on July 26, 2019, a federal appeals court rejected the biological opinion issued by the FWS for the construction of a 600 mi (965 km) section of the Atlantic Coast Pipeline, a project overseen by the Federal Energy Regulatory Com- mi s s ion (FERC) . Whi le FERC determined that the project may affect listed species, FWS issued a biological opinion concluding that the project would not jeopardize the survival and recovery of three listed species. Accor- dingly, FWS issued an incidental take statement setting take limits for each of the listed species. Environmental organiza- tions challenged both the biological opinion and the take limits. The court concluded that FWS “fail[ed] to consider the species’ status as a whole, and fail[ed] to consider the pipeline’s impacts on [species] recovery.” The court also determined that construction activities would result in the take of more species than set forth in the incidental take statement. Without a valid biological opinion and incidental take statement, the project could not move for- ward, leading to delays and increased costs. DEEP FOUNDATIONS • MAR/APR 2020 • 111
