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Ninth Circuit Rejects BiOp For Wyoming-Oregon Gas Pipeline Already Built, Orders Fish Mitigation
Posted on Friday, October 26, 2012 (PST)

The U.S. Court of Appeals for the Ninth Circuit issued a ruling Monday that says the Bureau of Land Management and U.S. Fish and Wildlife Service violated federal law -- both the Endangered Species Act and the National Environmental Policy Act -- in sanctioning the construction of the 700-mile Ruby pipeline from natural gas fields in Wyoming to southern Oregon.

The decision requires the Fish and Wildlife Service to prepare a new “biological opinion” requiring additional mitigation for nine endangered fish species that could be affected by the project. It also it requires the Bureau to prepare a new analysis of the pipeline’s cumulative effects on sensitive sagebrush.

“We wish the Ruby pipeline had never been built, but since it was, it’s crucial that everything possible is done to minimize harm to the endangered fish that live along its route,” said Amy Atwood, senior attorney at the Center for Biological Diversity, which appealed the decision to approve the pipeline. “With this victory, these rare fish will be better protected, and the public won’t have to bear the whole cost of the pipeline’s destructive impacts.”

Constructed in 2010, the 700-mile Ruby pipeline involves the construction, operation, and maintenance of a 42-inch-diameter natural gas pipeline extending from Wyoming across Utah and Nevada 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: the Lahontan cutthroat trout, Warner sucker, Lost River sucker, shortnose sucker and Modoc sucker, according to the CBD.

By pumping more than 300 million gallons of water for use in dust abatement and “hydrostatic testing,” the pipeline also affected four endangered Colorado River fish, the Colorado pikeminnow, humpback chub, razorback sucker and bonytail chub.

“The Ruby gas pipeline scarred hundreds of miles of sagebrush habitats, unnecessarily degrading and fragmenting wildlife habitats and streams,” said Rose Strickland, a Nevada conservationist. “Weak and ineffective federal restoration and mitigation requirements must be strengthened and enforced until successfully met.”

Although the pipeline builder promised voluntary mitigations to address impacts to fish, the mitigations were not required by the current biological opinion and were not fully funded. The court concluded that relying on voluntary measures that may or may not occur is a clear violation of the law.

It also concluded that Ruby and the Fish and Wildlife Service had failed to consider or mitigate the impacts of withdrawing millions of gallons of groundwater. The BiOp only considered surface water withdrawals for the construction project.

The Ninth Circuit opinion addresses challenges to the project filed by the Center for Biological Diversity, Defenders of Wildlife et al., and the Summit Lake Paiute Tribe.

The petitioners said that the USFWS BiOp and its accompanying “Incidental Take Statement” are illegal because: (1) the BiOp’s “no jeopardy” and “no adverse modification” determinations relied on protective measures set forth in a conservation plan not enforceable under the ESA; (2) the BiOp did not take into account the potential impacts of withdrawing 337.8 million gallons of groundwater from sixty-four wells along the pipeline; (3) the Incidental Take Statement miscalculated the number of fish to be killed, by using a “dry-ditch construction method” for water crossings; and (4) the Incidental Take Statement placed no limit on the number of “eggs and fry” of threatened Lahontan cutthroat trout to be taken during construction.

ESA BiOps’ incidental take statements judge how much negative impact on listed species might be allowed in conducting a particular activity without jeopardizing that species.

“We agree with the first two contentions and so set aside the Biological Opinion as arbitrary and capricious,” according to the opinion issued by the three-judge Ninth Circuit panel.

The Center for Biological Diversity is a national, nonprofit conservation organization with more than 450,000 members and online activists dedicated to the protection of endangered species and wild places

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