Endangered and Threatened Species

Troutman Sanders has an active and often cutting-edge practice advising clients on managing matters related to protected species. This often overlaps with our National Environmental Policy Act (NEPA) work as our clients' Endangered Species Act (ESA) issues often arise in the context of NEPA, and we are well-versed in the interplay of these two important laws. We advise clients in situations both where there is a federal involvement, leading to a Section 7 consultation, and where there is no federal involvement and our client is contemplating developing a Habitat Conservation Plan. We advise companies and individuals as they work with federal agencies to prepare biological assessments, represent clients in informal and formal consultation and help them obtain incidental take permits. We advise several large utilities on ESA issues in the context of hydroelectric operation and relicensing.

In their former roles as government attorneys, several members of our group gained an in-depth understanding of ESA issues in the context of National Pollutant Discharge Elimination System (NPDES) permits. For example, one of our lawyers advised EPA's Region IV regarding assessments of threatened and endangered species for listing of water quality limited segments (also known as impaired waters) for the purpose of listing under Section 303(d) of the Clean Water Act; this approach has become the national strategy.

Sample representations include:

• Representing an interstate hazardous liquids pipeline before the U.S. Fish and Wildlife Service to secure a "no jeopardy" determination with regard to pipeline construction and operation in an area with numerous listed animal and plant species;
• Advising a real estate developer regarding development near piping plovers, a threatened bird, during a permitting process with state and federal resource agencies;
• Advising a landowner who was prevented from developing property due to the presence of listed species, we assisted our client in selling the land to the federal government under very favorable terms;
• Assisting our client in avoiding liability when a contractor hired by the client destroyed Red Cockacked Woodpecker habitat;
• Advising a large municipality in reviewing the effects of chlorine discharges associated with its wastewater discharges on percina rex, a state listed species;
• Advising a landowner seeking to build a residence on property which has an active bald eagles nest on it on compliance with the Chesapeake Bay Region Bald Eagle Recovery Plan;
• Negotiating with state and federal resource agencies on behalf of a large hydroelectric licensee on an agreement to safeguard protected species pursuant to a Candidate Conservation Agreement with Assurances. This innovative agreement will allow one of the nation's largest utilities to participate in the recovery of a declining species. Once completed, the Agreement will be the first of its kind in the Southeastern region of the United States, and one of the first in the nation; and
• Drafting legislation and negotiating the terms thereof with the Department of Defense for several withdrawals of public lands; the legislation explicitly required consideration of endangered species conflicts.