FWS Told to Reconsider Pipeline’s Impact on Fish

(CN) - The 9th Circuit on Monday told the Fish and Wildlife Service to take a closer look at how a natural gas pipeline from Wyoming to Oregon could impact nine protected fish species.

A three-judge panel in Portland, Ore., vacated the Bureau of Land Management's approval of the Ruby Pipeline, which extends more than 678 miles through Wyoming, Utah, Nevada and Oregon. The pipeline's right-of-way encompasses 2,291 acres of federal land and crosses 209 rivers and streams that support federal endangered and threatened fish species.

The BLM based its approval on a biological opinion prepared by the Fish and Wildlife Service. The agency found that although the project would "adversely affect" nine listed fish species and five designated critical habitats, it "would not jeopardize these species or adversely modify their critical habitat."

Those nine species are the Lahontan cutthroat trout, Warner sucker, Lost River sucker, shortnose sucker, Modoc sucker, Colorado pikeminnow, humpback chub, razorback sucker and bonytail chub.

The Center for Biological Diversity, Defenders of Wildlife, the Summit Lake Paiute Tribe and others argued that this "no jeopardy" finding improperly relied on the developer's own assurance that it would take certain conservation steps to mitigate the harm.

The 9th Circuit agreed that these conservation measures are invalid, because the Fish and Wildlife Service has no authority to enforce them under the Endangered Species Act.

Though developer Ruby Pipeline LLC "faces potentially stiff consequences" if it doesn't deliver on its promises, the court noted, the decision to impose those consequences ultimately falls on the Federal Energy Regulatory Commission and the BLM, "with no role for the FWS."

"We lack assurance that the BLM would, for instance, terminate the right-of-way for and require removal of the pipeline - which has already been constructed and is delivering millions of gallons of natural gas per day - in the event that Ruby fails to follow through with the [conservation action plan] measures," Judge Marsha Berzon wrote.

Such measures should have been part of the project itself, rather than characterized as "cumulative effects" that were "reasonably certain to occur within the action area" of the project, the court ruled.

The judges also deemed the biological opinion "arbitrary and capricious" because it failed to consider how the withdrawal of 337.8 million gallons of groundwater from 64 wells along the pipeline would impact the listed fish species.

It rejected as "specious" the government's explanation that the groundwater depletion would have no discernible impact on the fish because "[t]hose species do not live in ground water."

"Obviously, fish do not live underground," Berzon wrote. But she said groundwater and surface water are interrelated, so the agency should have covered the withdrawals in greater detail.

"[D]epletion in underlying groundwater levels could conceivably alter surface water levels," Berzon wrote. "Changes in surface water levels may, in turn, affect listed species."

The court told the Fish and Wildlife Service to issue a new opinion that addresses how the groundwater withdrawals would impact the listed fish species and critical habitat. In the revised opinion, the agency should either treat the conservation measures as "interrelated actions" or not rely on them in deciding if the project jeopardizes fish and habitat, the 9th Circuit said.

The court also vacated and remanded the BLM's authorization of the pipeline, saying it was based on the Fish and Wildlife Service's "legally flawed" opinion.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit