Ninth Circuit Upholds Application of Percentage Methodology to Determine Whether There Has Been an Adverse Modification to Critical Habitat
By Diane Kindermann Henderson and Cori M. Badgley
The Ninth Circuit Court of Appeals upheld a biological opinion (“BO”) by the U.S. Fish & Wildlife Service (“FWS”) authorizing the destruction of critical habitat for three species, where the BO applied a percentage formula to ascertain whether there would be adverse modification or destruction of critical habitat. The Ninth Circuit concluded, “The FWS’ determination that critical habitat would be destroyed was not inconsistent with its finding of ‘no adverse modification.’ After all, the project would affect only a very small percentage of the total critical habitat or vernal pool fairy shrimp, vernal pool tadpole shrimp, and slender Orcutt grass.” (Butte Environmental Council v. U.S. Army Corps of Engineers (9th Cir. 2010) 607 F.3d 570.)
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