Endangered Species Act Compliance in Project Development and Land Use

The ESA has stopped or hampered progress for both federal and private construction, renewable energy, and infrastructure projects. The ESA is broad federal regulation that has had high visibility from listing decisions by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (together, the Services) such as the northern spotted owl, various runs of salmon in the Columbia and Snake Rivers in the Pacific Northwest to species with broad geographic ranges across other regions of the United States such as the northern long-eared bat, Canada lynx, Desert tortoise and the American burying beetle. Early evaluation of a project and the potential ESA compliance issues will help to avoid significant project development issues.

Several solar energy projects in the Mojave Desert were hindered or halted due to the presence of a tortoise that is listed as an endangered species and whose critical habitat covers over 6 million acres in four different states. Similarly, wind projects have been delayed or halted due to numerous listed avian species and bats. Other projects have faced similar challenges with respect to a host of listed species such as Oregon silverspot butterfly and Bradshaw’s lomatium. Developers who don’t assess presence and potential impacts of ESA species or critical habitat early in project development risk delays, costs for relocation, additional surveys, and monitoring post-construction.

In project development, conflicts with the ESA have only increased as more species are listed and more critical habitat is designated in both urban and rural areas. Early engagement and development of a scientifically sound strategic plan can help protect ESA-listed species through measures to avoid and minimize adverse effects while providing much needed business certainty. Early involvement and coordination with the Services and well developed ESA compliance strategies can assist clients in keeping projects on schedule and reduce costs. Additionally, well developed ESA compliance strategies can also provide insulation from project shutdowns and delays resulting from ESA citizen suits and enforcement actions.

Listen as our authoritative panel of practitioners examines strategies that can be used to navigate the ESA process in project development. The panel will offer strategies for avoiding and minimizing delays, as well as key lessons from existing projects.

1. Understanding ESA and its requirements
2. Navigating the ESA process
3. Strategies for avoiding and minimizing delays
4. Lessons from existing projects

The panel will review these and other key issues:

• What are the key provisions of the ESA that clients, consultants and counsel must understand?
• What steps can developers take to mitigate the risks of violating the ESA in project development and operation and reduce the likelihood of additional costs?
• What strategies can developers and counsel employ to successfully navigate the ESA process?