Endangered Species

Some have called the federal Endangered Species Act (ESA) the bulldog of all environmental laws. As a result, developing, operating and maintaining projects without properly addressing endangered species laws can be a costly, and sometimes fatal error. Federal and state endangered species law compliance can be very demanding. Protection of listed species affects not only new development, but also ongoing water, wastewater, and other services provided by public agencies.

Clients count on Best Best & Krieger LLP (BBK) attorneys for the proactive planning needed to secure required approvals and enable projects to proceed. BBK attorneys have decades of experience addressing endangered species and other environmental regulatory challenges. We are adept at managing the interplay of environmental laws, including the California and Federal Endangered Species Acts, the Natural Community Conservation Planning Act, the federal Clean Water Act, state water quality laws, wetlands protection requirements, and others.

With long-standing, effective working relationships with the wildlife agencies that administer these laws, we have earned the respect of regulators and can streamline assessment reviews, approvals, and permitting — speeding up the process and containing costs while assuring endangered species and their habitats are protected. 

Comprehensive Services
BBK takes a proactive approach, evaluating each project and establishing a plan to assure timely project completion while avoiding surprises and minimizing the likelihood of legal or regulatory hurdles. Our team represents clients throughout a project’s life, from pre-acquisition planning through completion, before regulatory bodies and in court when disputes arise. 

We have been at the forefront of developing strategies to address ESA compliance at a regional level and helped establish Multiple Species Habitat Conservation Plans (MSHCP) / State Natural Communities Conservation Plans (NCCP) in western Riverside County and in the Coachella Valley. These plans are among the largest and most complex MSHCPs and NCCPs in the United States.

From single-species, smaller-acreage residential and commercial development projects to infrastructure, transportation, telecommunication, energy-related, and facilities projects affecting dozens of endangered species, BBK leads the way. We help public agencies, including cities, counties, and special districts, as well as developers, landowners, and others in the private sector, develop, implement, strategize, and manage species and habitat issues, and negotiate related agreements. 

We draft, review and obtain approval for conservation easements, assist with establishing and managing conservation banks for endangered species and sensitive habitats, and negotiate transactional aspects of mitigation property acquisitions. Additionally, we regularly handle ESA Section 7 formal consultations, assist in obtaining incidental take permits, navigate the biological opinion process, and advocate regarding proposed new species listings and critical habitat designations. 

Cutting-Edge Litigators
We are on the cutting edge in asserting our clients’ interests before various regulatory bodies and in courts and as counsel for public agencies charged with ESA compliance. Our litigators have repeatedly prevailed in endangered species cases. 

• We helped create habitat conservation projects that have ranged from a 10-acre property harboring one species to some of the largest plans in the nation. The Western Riverside County MSCHP, for example, covers more than 1 million acres and protects nearly 150 species. We have also represented coalitions of water agencies in endangered fish species litigation related to Delta water supplies as well as regional water supplies.
• We assisted the City of Laredo, Texas, obtain an ecosystem restoration contract from the U.S. Army Corps of Engineers. The $2.44 million contract was awarded to both Laredo and a private company as part of a cost-share partnership to restore and preserve part of a swath of land along the Rio Grande River bend in Laredo.
• After obtaining a unanimous decision from the U.S. Supreme Court allowing resource users in the Klamath Basin standing to challenge a biological opinion, BBK won a summary judgment in the district court, resulting in one of the few published decisions overturning a biological opinion as “arbitrary and capricious.” 
• We prevailed in a suit challenging the U.S. Fish & Wildlife Service’s pattern and practice of disregarding economic impact analysis when designating critical habitat.