D.C. District Court Sides with USFWS on Indiana Bat ITP Issued to Ohio Everpower Project

The U.S. District Court in Washington, D.C. granted summary judgment on Wednesday to the U.S. Fish and Wildlife Service in a suit challenging the issuance of an incidental take permit to an Ohio wind power project for impacts to the endangered Indiana bat.

USFWS had issued the ITP to Everpower’s proposed 100-turbine Buckeye Wind Power Project pursuant to Section 10 of the Endangered Species Act. The ITP approves 26 Indiana bat takes over five years and 130 takes over 25 years. The permit requires the project to curtail operations at cut-in speeds ranging from 3 to 6 meters per second and to mitigate impacts through the acquisition of 217 acres of habitat near Indiana bat hibernacula.

USFWS concluded that the combination of curtailment and habitat protection would be “fully commensurate with the level of impacts” and therefore met the ESA statutory requirement that the project “will, to the maximum extent practicable, minimize and mitigate the impacts” of the expected take. Project opponents argued that USFWS should have interpreted the ESA’s “maximum extent practicable” standard to require adoption of the alternative with the lowest possible take limit without consideration of mitigation measures.

The court disagreed, noting that the Service’s 1996 Habitat Conservation Planning and Incidental Take Permit Handbook allows “an agency to place less emphasis on whether a program is the ‘maximum that can practically be implemented by an applicant’ if an applicant can first demonstrate that the minimization and mitigation measures provide substantial benefits to the species.” In this case, USFWS concluded that the curtailment and habitat conservation included in the ITP would “fully offset” the projected take cause by operation of the wind power project.

In short, the court noted that under the ESA, “Once the impact was fully mitigated, it was not necessary for FWS to determine whether more mitigation was possible, or whether the impact could possibly be minimized further.”