National Wildlife Federation v. Babbitt
| Decision Date | 15 August 2000 |
| Docket Number | No. S-99-274 DFL JFM.,S-99-274 DFL JFM. |
| Citation | 128 F.Supp.2d 1274 |
| Court | U.S. District Court — Eastern District of California |
| Parties | NATIONAL WILDLIFE FEDERATION, et al. Plaintiffs, v. Bruce BABBITT, in his official capacity as Secretary of the United States Department of the Interior, Defendant. |
Annette P. Carnegie, Morrison and Foerster, Walnut Creek, CA, Peter Hsiao, Morrison and Foerster, Los Angeles, CA, for Sacramento City (intervenor).
Larry Creston Larson, Jr, Law Offices of Gregory D. Thatch, Sacramento, CA, for Kaufman & Broad of Sacramento, Lewis Investment Co., and Kern Schumacher, LLC (intervenors).
Gregory Dean Thatch, Law Offices of Gregory D. Thatch, Sacramento, CA, for Kaufman and Broad Home and Natomas Estates LLC (intervenors).
Renee Frances Hawkins, Remy Thomas and Moose, Sacramento, CA, for Lennar Winncrest, LLC, (Intervenor).
Stephen M. MacFarlane, U.S. Attorney's Office, Sacramento, CA, Jane P. Davenport, United States Department of Justice, Environment & Natural Resources Division, Washington, DC, for Bruce Babbitt (defendant).
Renee Frances Hawkins, Remy Thomas and Moose, Sacramento, CA, for River West Investments, Northpointe Park and Borden Ranch Partnership (proposed intervenors).
Plaintiffs challenge the United States Fish and Wildlife Service's issuance of an incidental take permit to allow development in the Natomas Basin, a 53,000 acre tract of largely undeveloped land stretching to the North of the City of Sacramento. The Natomas Basin contains habitat of the Giant Garter Snake, a threatened species under the federal Endangered Species Act, and the Swainson's hawk, a threatened species under the California Endangered Species Act. The parties now bring cross-motions for summary judgment.
The Natomas Basin ("Basin") is a low-lying region of predominately agricultural lands in the Sacramento Valley consisting of approximately 53,000 acres. The Basin is part of a larger flood plain known as the American Basin, and is situated at the northern end of the City of Sacramento ("City"). Approximately 22% of the area of the Basin is within the City limits, with the remainder to the north, in the jurisdiction of Sacramento and Sutter Counties. Because the area was subject until recently to frequent flooding, the Basin has remained relatively immune from development despite its proximity to a growing metropolitan region. The Basin provides habitat or potential habitat for a number of species listed as endangered or threatened under federal or state law. (See Administrative Record (hereinafter "AR") 6:886 at 48-50.) Of the 11,387 acres of the Basin that lie within the City, approximately 30% has been developed, while roughly 55% is in crop land and 15% is vacant or in its natural state. (See AR 10:1657 at III-5.) The land containing natural vegetation is primarily located along irrigation canals, drainage ditches, pastures, and uncultivated fields. (See Def.'s Mem. P. & A. at 11.)
In 1986, heavy spring rains caused significant flood damage in the Sacramento area. In response, the Army Corps of Engineers ("Corps") undertook a study of proposals to improve flood control measures. This study culminated in the Corps' issuance, in 1991, of the "American River Watershed Investigation Feasibility Report" ("Feasibility Report"). The Feasibility Report proposed to provide 200 year flood protection through construction of the Auburn Dam and a series of levee improvements. (See Def.'s Mem. P. & A. at 12.)
The United States Fish and Wildlife Service ("the Service") reacted to the Corps' proposal with concern, noting the importance of the Basin to waterfowl using the Pacific Flyway for migration and to certain native species listed as endangered or threatened under federal or state law. (See AR 6:886.) The Service issued a report in 1991, the "American River Watershed Investigation, Natomas Area," (AR 6:886) ("1991 Report"), that examined the "indirect impacts" from development likely to result from flood control in the Basin. The 1991 Report considered a 41,000 acre subarea of the Basin that provided upland or wetland habitat and concluded that nearly the entire area — 39,200 acres — would be developed if a 200 year flood control plan were implemented. (See id. at 60-65 & Tbls. 5-7.) The 1991 Report found that the biological effects of this degree of urbanization in the Basin would be a dramatic loss of wildlife habitat. (Id. at 64.)
The 1991 Report contained an extensive discussion of potential means of mitigating for the urbanization that would follow upon flood control. The 1991 Report recommended that an area totaling 17,650 acres in the Natomas Area be acquired and managed as a wetland/upland complex, to off-set the expected loss of 22,717 acres of such habitat. Excluding acquisition costs, the 1991 Report anticipated the nonrecurring cost for development of acquired lands into habitat at approximately $171,675,000 — over $9700 per acre. In addition, the Report estimated annual management costs of $8,825,000, or $500 per acre.
In 1991, the Sacramento Area Flood Control Authority ("SAFCA") began the process of applying for an incidental take permit ("ITP") under § 10 of the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq. The ITP application was intended to permit implementation of the Corps' proposed 200-year flood control project, consistent with the requirements of the federal and state statutes protecting endangered species. In 1992, however, after Congress discontinued funding for study of the proposed Auburn Dam project — an integral part of the Corps' 200-year flood protection plan — SAFCA redirected its energies toward a more modest flood control project, designed to achieve 100-year flood protection in the Natomas area. In order to implement the flood control project, SAFCA applied to the Corps for a permit under § 404 of the Clean Water Act, 33 U.S.C. §§ 1251 et seq., to permit the discharge of fill material into certain wetlands and waterways in the basin. In reviewing this request, the Corps considered the direct effects of the proposed discharges, but initially declined to consider the indirect effects of the flood control project, namely, the urbanization likely to ensue. However, as a result of the Fish and Wildlife Service's insistence on this issue, the Corps agreed, in November 1993, to require SAFCA to address the urban development that would occur as a result of the requested § 404 permit.
In 1993, the Service listed the Giant Garter Snake ("GGS") as a threatened species under the ESA. The listing notice identified 13 distinct populations of the GGS, of which the American Basin population was one of the largest. See 58 Fed. Reg. 54053 (Oct. 20, 1993). The Natomas Basin population is a subpopulation of the American Basin population of the GGS. After the listing of the GGS, "interest renewed ... in developing a habitat conservation plan." (Def.'s Mem. P. & A. at 15.) In January 1994, the Natomas Basin Habitat Conservation Plan Working Group ("Working Group") was formed, and began development of a habitat conservation plan ("Plan," or "HCP"),1 as required to qualify for an ITP. The Working Group was comprised of "representatives of land owners of a large proportion of the affected area." (AR 23:03931.)
In March 1994, the Service issued a Biological Opinion ("1994 Biological Opinion") regarding SAFCA's proposed flood control project.2 (See AR 1:227.) The 1994 Biological Opinion noted that "nine of the twelve other extant populations [of the GGS are] on the verge of extinction," and expressed the Service's opinion that, given "the severe, declining trends in habitat suitability/availability and population levels throughout 75 percent of the range of the species," the American Basin population of GGS was "vital to the survival of the species." (Id. at 231.) In addition, the 1994 Biological Opinion noted that, absent measures to mitigate the expected urbanization of existing GGS habitat, "this flood control project and consequent urban development could extirpate the giant garter snake from the American Basin." (Id. at 230.) The 1994 Biological Opinion nevertheless concluded that the project would not likely "reduce appreciably the likelihood of the survival and recovery of the giant garter snake by adversely affecting reproduction, numbers and distribution of the species." (Id. at 231.) This conclusion was premised on five conditions proposed by the Corps as limitations on any permit to be issued to SAFCA: (i) preconstruction surveys for the GGS; (ii) the use of measures to minimize incidental take; (iii) compensation for any direct losses of GGS habitat; (iv) completion of a habitat management plan that ensures the conservation needs of the GGS; and (v) execution of an agreement by the City, Sacramento and Sutter Counties, and the Service, to guarantee implementation of the plan. (See id. at 228, 231.) Most important among these conditions were numbers (iv) and (v), which the 1994 Biological Opinion characterized as
a special permit condition that would establish a multispecies habitat conservation plan for the 55,000-acre lower American Basin, scheduled for completion prior to the start of construction of the proposed pumping station. An element of this habitat management plan would include an agreement among local governments and the Service that guarantees the conservation needs of the giant garter snake.
(Id....
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