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Friends of Boundary Mountains v. United States Army Corps of Engineers

United States District Court, D. Maine

April 23, 2014

FRIENDS OF THE BOUNDARY MOUNTAINS, Plaintiff,
v.
U.S. ARMY CORPS OF ENGINEERS, et als., Defendants, and TRANSCANADA MAINE WIND DEVELOPMENT INC., Intervenor-Defendant

Order Filed: June 2, 2014

Page 106

For Friends of The Boundary Mountains, Plaintiff: LYNNE A. WILLIAMS, LEAD ATTORNEY, LAW OFFICE OF LYNNE A. WILLIAMS, Bar Harbor, ME, USA.

For U.S. Army Corps of Engineers, Lt Gen Thomas P Bostick, Commander and Chief of Engineers, U.S. Army Corps of Engineers, Jay Clement, Senior Project Manager, U.S. Army Corps of Engineers, New England District, Defendants: LAUREL A. BEDIG, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Environmental Defense Section, Washington, DC, USA; ROBERT P. WILLIAMS, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Enrd/Environmental Enforcement Section, Washington, DC, USA; JOHN G. OSBORN, U.S. ATTORNEY'S OFFICE, District Of Maine, Portland, ME, USA.

For Transcanada Maine Wind Development Inc, Intervenor Defendant: GORDON R. SMITH, JULIET T. BROWNE, VERRILL DANA LLP, Portland, ME, USA.

Page 107

ORDER AFFIRMING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE

George Z. Singal, U.S. District Judge.

The United States Magistrate Judge filed with the Court on April 23, 2014, his Recommended Decision (ECF No. 46). Plaintiff filed its Objection to the Recommended Decision on Cross-Motions for Summary Judgment (ECF No. 47) on May 12, 2014. Defendant-Intervenor filed its Response to Plaintiff's Objection to the Recommended Decision (ECF No. 48) on May 19, 2014. Defendants filed their Opposition to Plaintiff's Objection to the Recommended Decision (ECF No. 49) on May 29, 2014.

I have reviewed and considered the Magistrate Judge's Recommended Decision, together with the entire record; I have made a de novo determination of all matters adjudicated by the Magistrate Judge's Recommended Decision; and I concur with the recommendations of the United States Magistrate Judge for the reasons set forth in his Recommended Decision, and determine that no further proceeding is necessary.

1. It is therefore ORDERED that the Recommended Decision of the Magistrate Judge is hereby AFFIRMED.

2. It is ORDERED that Defendant's Cross-Motion for Summary Judgment (ECF Nos. 32/33) is hereby GRANTED.

3. It is ORDERED that Intervenor-Defendant's Cross-Motion for Summary Judgment (ECF No. 36) is hereby GRANTED.

4. It is ORDERED that Plaintiff's Motion for Summary Judgment (ECF No. 31) is DENIED.

RECOMMENDED DECISION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

John C. Nivison, U.S. Magistrate Judge.

In this action, Plaintiff Friends of the Boundary Mountains seeks to " enjoin the grant of a permit" (Complaint ¶ 1) that Defendants the Army Corps of Engineers, Army Corps Lt. General Thomas P. Bostick,

Page 108

and Army Corps Senior Project Manager Jay Clement, issued to Intervenor-Defendant TransCanada pursuant to Defendants' authority under section 404 of the Clean Water Act, 33 U.S.C. § 1344, which governs " permits for dredged or fill material." The matter is before the Court on Plaintiff's Motion for Summary Judgment (ECF No. 31), Defendants' Opposition and Cross-Motion (ECF No. 32), and Intervenor-Defendant's Cross-Motion and Opposition to Plaintiff's Motion (ECF No. 36).

Following a review of the administrative record, and after consideration of the parties' arguments, as explained below, the recommendation is that the Court uphold the administrative decision, deny Plaintiff's Motion for Summary Judgment, grant Defendants' Cross-Motion for Judgment, and grant Intervenor-Defendant's Cross-Motion for Summary Judgment.

Background[1]

On February 10, 2010, Intervenor-Defendant filed an application with the Army Corps of Engineers seeking authorization to disturb wetlands and vernal pools in the Kibby Stream watershed (upper reaches of the Dead River watershed) in connection with the construction of the Kibby Expansion Wind Power Project, located in Kibby and Chain of Ponds Townships, Maine. (R. 1:78, 3:1-3, 3:358-66.) As originally proposed, the Project contemplated the installation of fifteen 3 megawatt wind turbine generators and " associated elements" adjacent to and to the west of the existing, 132 megawatt Kibby Project. (R. 3:358.) The Project also included construction of new ridgeline roads and a new substation. Although the Project would use existing access roads, the plans included the construction of new access roads on Sisk Mountain. (R. 3:360.)

On March 8, 2010, Defendant Clement notified Intervenor-Defendant by letter that the application form was complete, but that the Army Corps of Engineers needed additional information in order to review the application. (R. 2:1.) In addition to requesting further information, Defendant Clement requested that Intervenor-Defendant notify the Corps of any proceedings that might be held before the Maine Land Use Planning Commission, formerly known as the Maine Land Use Regulatory Commission, " so that we can attend if possible." (R. 2:3.) Defendant Clement noted that attendance by the Corps at any such proceedings " may allow us to avoid a similar Corps meeting/hearing later in the process." (R. 2:3.)

Intervenor-Defendant submitted a revised Grid Scale Wind Energy Development Application to the Land Use Planning Commission in December 2009. (R. 7:10.) The application's introduction outlined the Project's scope. (R. 7:31-33.) The application discussed, among other things, avian and bat monitoring conducted by Intervenor-Defendant following consultation with the Maine Department of Inland Fisheries and Wildlife (MDIFW) and the U.S. Fish and Wildlife Service (FWS). Intervenor-Defendant also relied on a collection of studies and surveys in support of its application, including rare raptor nesting surveys, spring and fall daytime surveys of migrating raptors, spring and fall nighttime radar surveys of bird migration, and summertime breeding bird surveys conducted on Sisk Mountain. (R. 7:79-146.) In the application, Intervenor-Defendant also represented that it would conduct

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post-construction monitoring based on ongoing discussions with MDIFW and FWS. (R. 7:79-146.)

On May 11, 2011, when the proposed project was still a 15-turbine project, FWS wrote to Intervenor-Defendant concerning Intervenor-Defendant's report titled Eagle Use in the Proposed Kibby Expansion Wind Power Project Area: Impact Assessment and Decision on Take Permit. (R. 5:14 (Eagle Use report); R. 5:56 (FWS letter).) In the letter, FWS provided Intervenor-Defendant with some information, and expressed its concerns about the Project. More specifically, FWS noted that while the mountains of western Maine are " of particular importance to golden eagles" based on historic nesting habitat and location within a primary migration corridor, its " best information suggests golden eagles were recently extirpated in Maine," largely due to the lasting impacts of environmental contaminants like DDT and DDE. (R. 5:56.) FWS also identified known golden eagle eyries within two to ten miles of the Project site and discussed historic knowledge of a radio-tagged, female golden eagle named " Virgil Cain," which was observed in the vicinity of the project in 2009 and 2010 and was known to be back in Maine in the spring of 2011, though her movements showed " no sign of territoriality." (R. 5:58.)

FWS also stated that although the degree of deterrence that wind projects place on golden eagle nesting habits is unknown, such projects may " introduce a significant source of mortality to golden eagles and their young." (R. 5:58.) FWS advised that it recently authored a new (April 2011) Draft Eagle Conservation Plan Guidance, which " provides detailed information on methods for data collection, risk assessment, examples of appropriate avoidance and minimization measures and Advanced Conservation Practices . . . for wind projects." The Guidance " encourage[d] all wind applicants in western Maine to avoid take of golden eagles by using the tiered approach in the guidance: siting wind projects in appropriate locations to minimize risk, gathering adequate information to quantitatively model risk to golden eagles, and developing contingencies for avoiding, minimizing, and mitigating take of bald and golden eagles." (R. 5:63.)

FWS informed Intervenor-Defendant that its " currently provided" information was insufficient " to accurately assess risk to eagles at the project site," and further advised that in its view, the Project generated " moderate to high risk of take of golden eagles." (R. 5:63.) FWS also sought " an Avian and Bat Protection Plan and/or Eagle Conservation Plan that [would] identify how uncertainty will be addressed, avoidance and minimization measures, post-construction surveys and research, and an adaptive management framework for addressing uncertainty." (R. 5:63.) FWS further stated that before it provided comments to the Army Corp of Engineers, it wished to discuss multiple issues with Intervenor-Defendant, including, but not limited to, the development of an Eagle Conservation Plan, additional surveys, contributions to ongoing telemetry studies, measures to reduce the project's footprint and rapidly reforest ridge top openings, measures to eliminate electrocution risk to migrating birds, and the development of post-construction mortality studies. (R. 5:64.) In concluding the letter, FWS asserted that compliance with its Wind Energy Guidelines would be " evidence of due care with respect to avoiding, minimizing, and mitigating adverse impacts to migratory birds." (R. 5:65.)

As part of the Maine Land Use Planning Commission's review process, the Commission solicited input from the Maine Department of Inland Fisheries and Wildlife

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and other state agencies. (R. 2:143, 176-78.) Most notably, MDIFW evaluated the project's impact on the Bicknell's thrush habitat. The Bicknell's thrush is known to prefer a subalpine forest habitat. (R. 7:1594-95.) MDIFW expressed concern about the proposed location of turbine 11 and its access road, which would have bisected a known, occupied habitat. (R. 7:1595.)

After receiving the information from MDIFW, FWS, and other feedback[2] on the project, Intervenor-Defendant twice amended its proposal. In its first adjustment, Intervenor-Defendant moved turbine 11 to reduce the impact on the subalpine forest habitat favored by the Bicknell's thrush. (R. 2:170.) The second adjustment, made in August 2010, reduced the number of turbines from 15 to 11. (R. 2:271-284, 7:1532, 7:1535-43.) This adjustment also significantly reduced the impact of the Project on the subalpine forest habitat preferred by the Bicknell's thrush. (R. 7:1594-95.) MDIFW reviewed favorably these changes in the proposal, did not object to the Commission's issuance of the development permit based on Maine regulations and policies,[3] concluded that additional pre-construction surveys were not needed, and requested a detailed post-construction monitoring plan to evaluate impacts on the Bicknell's thrush. (R. 7:1595, 1611.)

On January 5, 2011, the Commission issued its decision and granted Intervenor-Defendant's application for a development permit. (R. 7:1566-1646 (Decision), 7:1647-1657 (Appendix I), 7:1658-1660 (Appendix II).) The Commission issued its permit in due course. (R. 2:236-253.) As part of its review, the Commission convened public hearings and gathered testimony, both oral and written, and ...


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