R-Project: Amicus brief from conservation groups

Excerpt of Amicus Brief that explains how the approval of the R-Project is in violation of the Endangered Species Act

Rather than including the whooping crane in the HCP/ITP as a covered species, the Service and NPPD have attempted to circumvent the ESA requirements by substituting an “adaptive management plan” that is a transparent attempt to ignore likely take of whooping cranes and delay the analysis of impacts and implementation of mitigation measures until after the project has already been constructed. This is illogical, and clearly violates the ESA.

Pursuant to this “adaptive management plan,” if new information about the risk of whooping crane collisions comes to light, it would then require the development of an amendment to the HCP/ITP to include the crane as a covered species. USFWS_HCP_1791-92. The HCP narrowly defines what the “new information” must be. Id. These conditions, however, appear to be crafted to make it as unlikely as possible for the whooping crane contingency to be met.

Limiting the conditions that would require that this project obtain an ITP for whooping cranes is without support or logic. It is already well-established that power lines are the greatest source of mortality for whooping cranes, that bird diverters are only (at most) 50% effective, and therefore there is a clear risk of collisions when a transmission line is placed directly across the migratory corridor. It remains entirely unclear why specific incidences are needed—especially such narrowly defined ones—to then decide to cover a critically endangered species that is so at risk from this project. The Service’s whooping crane specialist and biologist Matt Rabbe appears to agree, stating in an email that this plan is “unreliable” and ultimately concluding that NPPD is “selecting conflicting methods [] and using the same data (in opposite ways) to support the conclusion they want.” USFWS_CORRESPONDENCE_2903-06.

Furthermore, it would be very unlikely for a collision that meets these very specific requirements to be reported. Whooping cranes migrate across a vast area, much of which with 
low populations and therefore few opportunities for people to witness power line collisions. If a collision does occur, the carcass will likely be removed quickly by a scavenger, and therefore it is unlikely that such collisions would be reported. Consequently there is little chance that the adaptive management program would, in reality, work to ensure that whooping cranes are not unduly adversely affected by the R-Project.

Moreover, if and when these conditions are met and there has been a take of a whooping crane that meets the trigger, it remains entirely unclear what NPPD could do to minimize and mitigate impacts and prevent further collisions. Once the Project is constructed, it is too late to institute any genuinely effective minimization or mitigation measures, such as route placement (i.e. using the “Central Route”). If further mitigation is possible, it must be implemented now to minimize and mitigate take, rather than left until after take has already occurred (which would further violate ESA Section 9) and few, if any, options for minimizing or mitigating take remain available to the Service and NPPD.

This adaptive management scheme therefore violates the requirements for obtaining an ITP, and amending later to include the whooping crane would not be consistent with the requirements of Section 10. Again, an applicant for an ITP must show that it has minimized and mitigated impacts to the maximum extent practicable. 16 U.S.C § 1539(a)(2)(B). Here, that would be utilizing the Central Route, which would go through fewer wetland areas  cranes rely on and migrate through. Once constructed, it would not be possible to alter the route, and therefore there will be no way to take advantage of the Central Route to minimize impacts as required under Section 10.

NPPD cannot avoid the need to implement measures necessary to minimize take of this imperiled species by applying a scheme that would allow them to build now and mitigate later. By deferring the decision about whether to include whooping cranes until after this project is built, the Service has arbitrarily avoided adopting alternative routes or other preconstruction measures that could eliminate or at least reduce take of whooping cranes, in violation of one of the key tenets of ESA Section 10. 50 C.F.R. § 17.22(b). 

Furthermore, it is not even clear that an ITP would be available for this species if it is determined to be necessary after construction, since any additional incidental take above existing baseline threats could jeopardize the species. See Id. (requiring the applicant to ensure the taking will not appreciably reduce the likelihood of survival and recovery of the species). This is likely why NPPD is pushing for this farcical adaptive management scheme that would put off including the crane until after construction is complete. Since any level of take poses a risk of jeopardy, the Service very likely would not be able to amend the ITP to allow take of whooping cranes without violating ESA Sections 7 and 10.

In sum, this adaptive scheme puts whooping cranes at risk of jeopardy, in violation of ESA, and directly contradicts the regulatory requirements for incidental take. This species is hovering on the brink of extinction, and the Court must not allow the Service and NPPD to circumvent the requirements of the ESA.