Endangered and Threatened Species

As a result of settlements between the U.S. Fish and Wildlife Service and environmental groups, the number of species being considered for listing as threatened or endangered has increased exponentially in recent years. Moreover, regulators are interpreting longstanding water laws in new ways, using clean water standards as a protective device for resources, habitats and wildlife. Today, water quality also can include protection of species.

Troutman Sanders’ environmental lawyers advise our clients on the potential impact of new legislative developments and of the Endangered Species Act (ESA) on projects, particularly those related to wind power and mining operations. We also help clients keep their projects on schedule.

We have assisted clients in commenting on proposed listings and in evaluating the impact of such listings on regulatory programs. These include the development of water quality standards, Clean Water Act Section 402 and 404 permits, water withdrawal permits and air permits.

We advise clients in situations where there is 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 assist clients as they work with federal agencies to prepare biological assessments and we represent clients in informal and formal consultation and help them obtain incidental take permits. Our lawyers have also assisted in defending state permitting actions against ESA take claims brought by environmental groups.

Representative Experience

  • Represented a renewable energy supplier in due diligence evaluation of the acquisition of a proposed 70MW wind farm in West Virginia with potential impacts to endangered bat species, including the Indiana bat and the Virginia big-eared bat. Golden eagles protected under the Migratory Bird Treaty Act also required consideration. Among other activities, we assessed the potential schedule and ongoing operational and financial risks associated with the potential for wind turbine strikes to harm protected species.
  • Worked on a complex total maximum daily loads (TMDL) and water-permit proceedings to protect endangered fish in Savannah Harbor.
  • Negotiated species-specific protective measures for threatened and endangered (T&E) freshwater mussels as required by biological opinion under the Surface Mining Control and Reclamation Act (SMCRA) for coal-related project permitting in the Appalachian coalfields.
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