On September 9, 2011, a federal district court in Washington D.C. approved two settlements with two environmental groups that sought to force the U.S. Fish and Wildlife Service to decide whether or not to list more than 700 plant and animal species as endangered. In re Endangered Species Act Section 4 Deadline Litigation, MDL No. 2165, D.D.C. No. 1:10-MC-377 (September 9, 2011).
WildEarth Guardians and the Center for Biological Diversity sued the USFWS for not meeting mandatory deadlines for actions of petitions to list species as endangered. Some of the species covered by the lawsuit have been up for consideration of their endangered status for as long as 30 years. The species include some high profile animals such as the Pacific walrus and American wolverine, but also include more obscure species such as thirty-two species of Pacific Northwest mollusks. (Has anyone heard of the wekin bug?)
While the court’s decision does not guarantee that the USFWS will apply the endangered label to any specific species, it is likely the list if endangered species will expand significantly. The agreement sets various deadlines depending upon the species and when initial petitions for listing were filed. The USFWS is required to begin issuing findings by the end of Fiscal Year 2011.
The two settlements will have far-reaching consequences for both private developers and government projects. The presence of an endangered species in an area slated for development or construction requires the project developer to determine whether the project will result in a “taking” of endangered species habitat. Mitigation measures or changes to the project may be required to alleviate the taking. The process for determining the necessary mitigation measures can take months or even years. Government infrastructure projects such as bridge building and drain repair are not immune from endangered species requirements.
While the settlements broad in scope, developers and governments contemplating projects in areas known to be sensitive, such as wetlands and deserts, would do well to consider the potential impacts of new endangered species determinations down the road.