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Center for Biological Diversity v. United States Bureau of Land Management

ELR Citation: 42 ELR 20211
Nos. 10-72356 et al., (9th Cir., 10/22/2012)

The Ninth Circuit vacated and remanded FWS' biological opinion for a pipeline project involving the construction, operation, and maintenance of a 678-mile, 42-inch-diameter natural gas pipeline extending from Wyoming to Oregon. The right-of-way for the pipeline encompasses approximately 2,291 acres of federal lands and crosses 209 rivers and streams that support federally endangered and threatened fish species. Although FWS determined that the project would adversely affect nine of those species and five designated critical habitats, the biological opinion concluded that the project “would not jeopardize these species or adversely modify their critical habitat.” But the biological opinion's "no jeopardy" and "no adverse modification" determinations relied on mitigation measures set forth in a conservation action plan not enforceable under the ESA. Because the mitigation measures are not binding under the ESA, the biological opinion cannot rely on them. Nor did the biological opinion take into account the potential impacts of withdrawing 337.8 million gallons of groundwater from 64 wells along the pipeline. The biological opinion, therefore, is arbitrary and capricious and was set aside and remanded.