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Keystone XL Presidential Permit and the Endangered Species Act

April 18, 2012

Paging through the Montana Major Facility Siting Act Certificate of Compliance for Keystone XL (our idea of a good time around here), the critical habitat of the threatened piping plover jumped out.  Piping plovers are:

small, stocky shorebirds (with) a sand-colored upper body, a white underside, and orange legs. During the breeding season, adults have a black forehead, a black breast band, and an orange bill.

In the northern great plains population, numbers have been dropping in recent years, up to 7% annually.  According to the critical habitat designation:

In Montana, plovers currently nest along the Missouri River, on Duck Creek Bay, Bear Creek Bay, Skunk Coulee, and the Big Dry Creek Arm of Fort Peck Reservoir, and alkali wetlands and reservoirs in Phillips and Sheridan Counties.

Under section 3(5)(A) of the federal Endangered Species Act, critical habitat is defined as:

(i) the specific areas within the geographic area occupied by a species, at the time it is listed in accordance with the Endangered Species Act, on which are found those physical or biological features (I) essential to conserve the species and (II) that may require special management considerations or protection; and (ii) specific areas outside the geographic area occupied by a species at the time it is listed, upon determination that such areas are essential to conserve the species. ‘‘Conservation’’ means the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which listing under the Endangered Species Act is no longer necessary. Critical habitat receives protection under section 7 of the Endangered Species Act through the prohibition against destruction or adverse modification of critical habitat with regard to actions carried out, funded, or authorized by a Federal agency.

The regulations at 50 CFR 402.02 define destruction or adverse modification as:

a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical.

Section 7 of the Endangered Species Act requires that federal agencies:

insure that any action authorized, funded, or carried out by such agency… is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary… to be critical, unless such agency has been granted an exemption for such action by the (Endangered Species) Committee….

This means that if any destruction or adverse modification of piping plover critical habitat may take place during the construction of Keystone XL, the presidential permit cannot issue without violating the Endangered Species Act, unless the Endangered Species Committee (also referred to as the God Squad) signs off.  Now isn’t that interesting?  Do you suppose it’s possible to lay a 36-inch diameter buried pipeline, pumping stations, valves, transmission lines, and all the other infrastructure through critical habitat without adversely modifying it?


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