A federal judge in Colorado vacated an incidental take permit granted by the U.S. Fish and Wildlife Service (USFWS) to Nebraska Public Power District (NPPD), regarding the construction of a transmission line project.
The R-Project is a 225-mile long, 345-kilovolt transmission line that would run from the Gerald Gentleman coal-fired generating plant near Sutherland, NE—west of North Platte—to Clearwater—west of Norfolk. The line would also enable the transmission of electricity for any future wind farms.
A lawsuit was filed by the Oregon-California Trails Association, Western Nebraska Resources Council, and the Hanging H East and Whitetail Farms East ranches in U.S. District Court, Denver in July 2019. The petitioners argued the USFWS’ issuance of the incidental take permit is not in compliance with Endangered Species Act (ESA), National Environmental policy Act (NEPA), and the National Historic Preservation Act (NHPA).
Citing it as “an unusually complicated case” in which the petitioners’ arguments were the “see what sticks variety,” U.S. District Judge William J. Martinez of Denver in his 116-page decision found many of their arguments were with merit. However, Martinez found the USFWS did not adequately consider its effects on a historical landmark; the incidental take of an endangered species, the whooping crane; and the potential for wind turbine development.
While Martinez threw out most of the suit, it does not permanently forbid the construction of the line. The ruling asks USFWS to reconsider the incidental take permit and its compliance with other government regulations.
Aspects of the ruling
The majority of the ruling focused on the USFWS issuing a permit for the incidental take of the American burying beetle during project construction. The petitioners claim it violates the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA).
In January 2015, NPPD established the “final route” for the transmission lines and for the next two years worked with USFWS and other parties to draft an environmental impact statement (EIS) for the beetle. During the permit process, the USFWS asked NPPD to apply for incidental take coverage of whooping cranes, in addition to American burying beetles.
When USFWS issued its draft EIS, it was solely focused on the beetle and comments received from interested parties focused on “potential effects to whooping cranes (and, to a lesser degree, interior least terns and piping plovers).”
The petitioners argued the USFWS violated the ESA by granting the incidental take permit and approving the habitat conservation plan, whereas “neither the permit nor the plan addresses the whooping crane.”
They also argued USFWS failed to consider the threat to whooping cranes and other bird species through collisions with wind turbines and habitat modification, which constitutes a violation of the ESA and NEPA. NPPD asserts no wind projects were associated with the construction of the R-Project.
Martinez cites that USFWS in its biological opinion (BiOp) and final EIS “discusses wind power as it relates to the birds as a ‘cumulative effect’ under NEPA.” Cumulative effects are defined as “those effects of future state or private activities, not involving federal activities, that are reasonably certain to occur within the action area subject to consultation.”
The USFWS limited its BiOp to the area adjacent to the R-Project and not to the “137 turbines that may be built in Antelope County.” The court remanded the BiOp back to the USFWS based on whether there was a cumulative-versus-indirect error on the turbine project in Antelope county.
In addition to ESA and NEPA, USFWS was also required to look at other federal laws for the project’s compliance, including the National Historic Preservation Act (NHPA).
Around the same time the USFWS began pushing the NPPD to include the whooping crane within its permit application, they also began receiving information from other federal agencies that the final route would cross immediately over, or very near to, sections of the Oregon and California Trails, the Mormon Pioneer Trail, and the Pony Express Trail.
The final EIS acknowledged the R-Project would have “a long-term, high-intensity indirect (visual, auditory, and atmospheric) effect” on an area known as O’Fallon’s Bluff, which “exhibit[s] some of the most clearly defined and preserved segments of the Oregon-California Trails.”
The petitioners argued USFWS “fail[ed] to analyze (or adopt) a route within [the Power District’s] routing corridor [i.e., in contrast to a significantly different route like the Central Route] that would have run east from the Gerald Gentleman Substation and thus avoided most (if not all) of the affected historic resources located directly north of the substation [referring to O’Fallon’s Bluff].”
USFWS and NPPD failed to respond to the argument that it considered “a broad range of alternatives,” and Martinez found an error regardless of their silence.
Martinez wrote, “Unlike the central route (which was mostly outside any approved routing corridor), the record shows that there were options within approved routing corridors to avoid major impacts on O’Fallon’s Bluff.”
Martinez further wrote, “The [USFWS] acted ‘not in accordance with [the] law,’ with respect to its consideration of possibilities to avoid impacts on O’Fallon’s Bluff.”
While the development may be on hold, it has been a long-fought battle of ranchers and private property owners against eminent domain and the Sandhills area’s protection.
The threat of eminent domain
Amy Ballagh of Ballagh Cattle Company has been “dealing with” the R-Project since July 2013.
The family homesteaded the ranch located outside Amelia, NE, in 1885 and worked to establish the grasslands and shelterbelts.
Amy told WLJ the family had not signed an easement agreement, and NPPD intends to file eminent domain if they do not “willingly” sign the agreement. NPPD has filed an injunction on them at one point to do “survey” work and has trespassed on the property more than once.
The Ballaghs have asked NPPD to look at routes other than their property for construction of the line, so poles accessed for further maintenance do not disturb the rangeland they worked to restore.
“The currently proposed route will run through the center of the headquarters portion of our ranch, through wetlands that for the past two years have been completely underwater, without any road access to construct or maintain the transmission lines, so we find this size of a project inappropriately sited,” Ballagh said.
Ballagh agreed the whooping cranes should be included in the take permit issued by USFWS and is also concerned with the lattice design of the towers that carry the lines and the possibility of fire. She indicated that the project brings nothing but destruction to the remote areas it crosses.
“I can’t help but wonder if this line, that is supposedly so ‘vital,’ wouldn’t have already been built if they had taken the time to take another look at their options,” Ballagh said. “It is still my hope that there can be an opportunity for NPPD to rethink this project and come up with a more practical solution. Mr. [NPPD President Tom] Kent has arrogantly made statements since the court ruling that would indicate that he doesn’t want any changes made (including those that could save the O’Fallon’s Bluff area), and so I think ‘money’ and ‘power’ will have this project moving ahead in the next couple of years.” – Charles Wallace, WLJ editor