Brownstein Hyatt Farber Schreck attorneys have extensive expertise in nearly every aspect of the federal and California Endangered Species Acts developed both in the private and public sectors. Our experience is local and national in scope, allowing us to better navigate the larger policy context often affecting ESA decision-making, while still understanding the local realities impacting any project.
Our lawyers have been involved in some of the most significant and complex issues of the last decade relating to sections 4, 7 and 10 of the federal Act. For example, we have successfully led efforts on cutting-edge listing decisions such as the determination that the polar bear was a threatened species. Likewise, we have developed the primary guidance on the applicability of the ESA’s consultation requirements to proposed actions involving the emission of greenhouse gases utilized by the Department of the Interior. At the project level, several Brownstein attorneys have helped clients negotiate ESA approvals with the U.S. Fish and Wildlife Service (USFWS), the National Marine Fisheries Service (NMFS), and the California Department of Fish and Game (CDFG), including consultations associated with dam relicensing, residential and commercial development, and major water supply and infrastructure projects.
Habitat Conservation and Natural Communities Conservation Planning
We are lead outside counsel for one of California’s largest wholesale water suppliers with respect to the preparation and permitting of a 50-year, multi-species Habitat Conservation Plan (HCP). The project includes the development of a habitat plan and associated implementation agreement and environmental compliance (CEQA and NEPA) documents; acquisition of Incidental Take Permits from the NMFS, USFWS and the CDFG for approximately 25 covered terrestrial and aquatic species; and implementation of a complex, multi-agency settlement of a water rights complaint alleging violations of the public trust and CDFG Section 5937, including acquisition of the State Water Resources Control Board’s approval of the settlement.
Endangered Species Act Section 7 Consultations and Permitting
We recently represented a major power company in the consultation process with USFWS and NMFS under the ESA in conjunction with relicensing of the company’s federal hydropower facility. This effort included extensive negotiations with these resource agencies to develop terms and conditions to protect endangered salmon species. As part of the ESA consultation process, we represented the company in the first-ever filing under the Energy Policy Act of 2005 in a challenge to the agencies' proposed non-discretionary conditions to the license to address ESA and water quality concerns. This action was eventually settled and, through these negotiations, the parties were able to reach agreement on ESA mitigation measures to protect the species.
We represented the largest water utility in Nevada on ESA issues surrounding its plans to operate a pilot, and eventually commercial, scale desalination project that raised potential impacts to endangered species in Mexico. This work included evaluating whether Section 7 and other provisions of the ESA applied to impacts in a foreign country from actions in the United States, and framing the proposal so as to avoid implicating such issues. We assisted the utility in developing a proposal and negotiating an agreement with various public and private interest groups that allowed the project to move forward.
Several of our attorneys have been integrally involved in high-profile, multi-state ESA negotiations to develop long-term plans to mitigate existing and future impacts to listed species. For example, one of our attorneys served as the principal negotiator for the State of Colorado on developing a coverage agreement under Section 7 of the ESA between Colorado, Nebraska, Wyoming and the Department of the Interior to provide reasonable and prudent alternatives to mitigate against water depletion impacts to the whooping crane and other listed species in Nebraska’s Platte River Basin. This process involved a three-year negotiation that resulted in a national model for basin-wide, comprehensive, long-term species protection. Our firm was also involved in similar negotiations in the Colorado River Basin to protect against impacts to numerous listed species in the Basin from existing and future water depletion projects. We have also been involved in negotiating proactive agreements between state and federal governments, providing for the commitment of policies and resources to help states forestall the listing of potentially endangered species.
ESA Compliance for Property Owners and Water Users
We represent a California public water supplier before the State Water Resources Control Board in proceedings to renew U.S. Bureau of Reclamation’s water right permits on a major flood control and water conservation project, which includes public trust issues related to steelhead. We have negotiated with the NMFS for development of the biological assessment and adoption of the biological opinion for protection of steelhead and are intimately involved with overseeing the ongoing compliance with the biological opinion.
We represent a private dam owner and grower with respect to its water right, public trust and endangered species compliance issues in California. Our work has included representation of the client before the State Water Resources Control Board on modifications of the terms and conditions of the client’s water rights to comply with state and federal fishery protection laws; negotiations with the CDFG with respect to modification of the streambed and associated riparian impacts; and negotiation with the NMFS with respect to the designation of critical habitat to include the client’s property.
On behalf of developers, we evaluate ESA impacts in conjunction with residential and commercial development projects. For example, we represented a major commercial retailer in Colorado in negotiations with USFWS regarding approval of the company's plans to construct a large retail store in southeast Colorado. The agency believed that the original design of the facility would adversely impact critical habitat for the Preble's meadow jumping mouse. We were able to negotiate approval of the project for the company with only slight modifications to the original development plans to avoid impacts to species' critical habitat.
On behalf of a joint powers authority made up of numerous retail water agencies, we coordinated the project design and siting for the pipelines, the water treatment plant, storage tanks, pump stations and related State Water Project, Coastal Branch facilities to avoid and mitigate environmental impacts. We supervised the drafting of environmental impact reports and negotiated with the USFWS and CDFG all agreements necessary to construct, operate, repair and maintain the Coastal Branch facilities. We played an active role in the preparation of the USFWS biological opinion, incidental take permit, and amendment to the incidental take permit (when an impacted species was listed during project construction), and HCP for project operation. We also negotiated the preparation of the CDFG's Management Agreement and Memorandum of Agreement for state-listed species potentially impacted by the project.
We have negotiated avoidance measures, biological opinions with incidental take permits, Conservation Agreements, and No Take Concurrences with USFWS on behalf of multiple landowner clients.
Critical Habitat Designations
On behalf of numerous landowner and water user clients, we have played an active role in limiting the designation of critical habitat for the California tiger salamander and coastal steelhead to avoid impacts on clients' properties and operations.
We represented a client in opposing the scope of critical habitat for bull trout in the Snake and Columbia River Basins.
Recovery Planning
We are actively monitoring the NMFS’s development of steelhead Recovery Plans to restore and maintain the species in coastal streams on the West Coast. On behalf of several southern California water right holders, we have participated in resource agency workshops and have provided extensive comments on draft Recovery Plans and recovery actions that have the potential to impact public water supplies. |