BLM Directed to “Try Again” on NEPA Analysis for Echanis Wind’s Transmission Line: Greater Sage-Grouse Remains Key Issue for Project Development Despite USFWS Decision Not to List Under ESA

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In the continuing saga of the Echanis wind project in Eastern Oregon, U.S. District Court Judge Michael Mosman on April 18 vacated the Bureau of Land Management’s (BLM)’s Record of Decision (ROD) on a right-of-way grant decision under the Federal Land Policy and Management Act for a 230-kV transmission line conveying power generated from the wind project proposed for development on private land on the north side of Steens Mountain. The wind project would include between 40 and 69 wind turbines near Diamond, Oregon.

The case was before Judge Mosman on remand from the Ninth Circuit, which instructed Judge Mosman to vacate the BLM’s ROD unless he found it advisable that the ROD remain in place. The Ninth Circuit’s 2016 opinion followed Judge Mosman’s initial decision to grant the BLM’s motion for summary judgment. Judge Mosman had ruled that the BLM had adequately considered the impact of the project on fragmentation and connectivity of sage-grouse habitat, but the Ninth Circuit’s decision reversed that decision based on its determination that the BLM’s environmental review under the National Environmental Policy Act (NEPA) did not adequately assess baseline sage-grouse data during winter at the proposed project site.

On remand, Judge Mosman opted to vacate the ROD. Accordingly, the BLM will have to prepare a new environmental impact statement if the proponent elects to move forward with project development.

Although this decision is not particularly noteworthy from a NEPA perspective, the case underscores the importance of taking sage-grouse issues into account early in project development. Even for purely private land projects, sage-grouse impacts remain a chief concern despite the U.S. Fish and Wildlife Service’s (USFWS) 2015 decision not to list the sage-grouse under the Endangered Species Act (ESA). In Oregon, for example, the Oregon Department of Fish and Wildlife’s (ODFW) sage-grouse rules provide that ODFW may approve mitigation for impacts from a large-scale development (e.g., a wind or solar facility) only after the mitigation hierarchy has been addressed by the permitting authority, with the aim of directing development away from the most productive sage-grouse habitats. Thus, even in low density sage-grouse habitat, before proposing mitigation, a project proponent must demonstrate that project development cannot occur in another location that avoids impact to sage-grouse habitat unless (1) it is not technically or financially feasible to locate the proposed use outside of low density sage-grouse habitat based on accepted engineering practices, regulatory standards, proximity to necessary infrastructure or some combination thereof; or (2) the development is dependent on geographic or other physical feature(s) found in low density habitat areas that are less common at other locations. In addition, ODFW rules require compensatory mitigation to achieve “net conservation benefit for sage-grouse by replacing the lost functionality of the impacted habitat to a level capable of supporting greater sage-grouse number than that of the habitat which was impacted.”

Thus, although many project proponents are not likely to encounter the issues raised in the Echanis case, which are specific to projects with federal components where NEPA analysis is required, the greater sage-grouse, even following the USFWS’s decision not to list the species under the ESA, is continuing to present challenges for project developers.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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