San Diego HCP struck down

In a sharply worded decision, Senior Judge Rudi Brewster has enjoined operation of an Incidental Take Permit issued in 1997 to the City of San Diego under section 10 of the ESA, insofar as the permit allows development of vernal pool habitat.

The City's plan is one portion of a massive Multi-Species Conservation Plan covering more than half a million acres. Judge Brewster found that the ability of the plan to protect two fairy shrimp species and five native plant species was critically dependent upon the assumption that Clean Water Act section 404 permits would be required for vernal pool development. The Supreme Court's ruling that Clean Water Act does not extend to at least some isolated wetlands in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, 531 U.S. 159 (2001), reaffirmed by a fractured court in Rapanos v. United States, ___ U.S. ___ (2006), undermines that assumption. Although "the precise contours of federal jurisdiction over wetlands in general and vernal pools in particular remain unclear," Judge Brewster was persuaded that the Corps of Engineers "will not undertake review through its CWA permit process of impacts to isolated vernal pools that seasonally fill with water on San Diego's mesas."

In addition to demanding re-initiation of consultation, Judge Brewster concluded that the "no surprises" assurances included in the Incidental Take Permit are not binding under these circumstances. Having avoided consideration of the impacts of development on vernal pool species by punting that task to the Corps of Engineers in the permit, FWS could not then play the "shell game" of arguing that it is precluded from changing the terms of the permit when it turns out that the Corps cannot play its assigned role. He also found that FWS had arbitrarily and without explanation adopted a practice of allowing destruction of up to 12% of the vernal pool area covered by the plan. Finally, Judge Brewster ruled that the City had not provided adequate assurances of funding for creation of the planned reserve.

It seems clear from Judge Brewster's opinion that the plan as it currently stands will not adequately protect vernal pool species, and that the Fish and Wildlife Service failed to adequately evaluate the impact of the permit on those species.

The decision's emphasis on the duty to re-initiate consultation, however, puts it in the middle of an on-going dispute about the scope of the ESA's section 7 consultation duties. The Ninth Circuit recently held in Defenders of Wildlife v. EPA, 420 F.3d 946 (9th Cir. 2006), that the duty to consult applies "when the agency engages in an affirmative action that is both within its decisionmaking authority and unconstrained by earlier agency commitments." The National Association of Home Builders has sought certiorari on the Defenders decision, challenging that broad description of section 7. But taking it at face value for the moment, is approval of an incidental take permit the type of "agency commitment" that can constrain future agency discretion, and thereby narrow the scope of the consultation duty in the future? If not, a permit would provide essentially no assurances for the permittee, since its terms would constantly be subject to re-evaluation.

An alternative approach would be to impose more stringent demands at the time the initial permit decision is made. One way to read this decision is as requiring that FWS not rely on any restrictions not explicitly and enforceably set forth in the permit to protect the covered species against jeopardy. If it's too much to ask that FWS anticipate and provide for the potential loss of all exogenous sources of legal authority when evaluating the permit, then it may make sense to say that fundamental changes in the law that alter the conservation context require re-evaluation of the agreement.

The result doesn't seem inconsistent with the intuition behind "no surprises" assurances that "a deal's a deal." To the extent that the Corps truly has lost jurisdiction over isolated wetlands (an issue that is far from resolved), the developers would be gettting a windfall by being allowed to develop free of restrictions that everyone saw as part of "the deal."