Federal approval missed a key step in addressing requirements of Endangered Species Act
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By Bob Berwyn
FRISCO — Federal biologists have acknowledged that they left out a key step in their approval of the proposed Peak 6 ski area expansion at Breckenridge, a project that would degrade a patch of lynx habitat in the Tenmile Range.
“We reviewed the … biological opinion, and we agree that our incidental take statement lacks a meaningful mechanism to reinitiate consultation if the project exceeds the anticipated incidental take,” U.S. Fish and Wildlife Service Western Colorado Supervisor Patricia Gelatt wrote in a March 6 letter responding to a formal legal notice from Rocky Mountain Wild and the Blue River Group of the Sierra Club.
Gelatt said her agency plans to meet with the Forest Service and modify its biological opinion to address the deficiencies before the Notice of Intent expires on April 19, but she didn’t explain how agency biologists missed including the required regulatory mechanisms after discussing the expansion with the Forest Service for several years.
On Feb. 14, those two groups, assisted by the University of Denver’s Environmental Law Clinic, notified the U.S. Forest Service, the U.S. Fish and Wildlife Service and Vail Resort that they intend to file a lawsuit challenging the approval of the Peak 6 expansion, which would add new lifts and trails north of the existing lift-served terrain at Breckenridge Ski area.
Vail Resorts has said publicly and to its shareholders that it plans to develop the new terrain as soon as this summer, but a lawsuit could put those plans on hold, at least temporarily. The expansion was approved in August, 2012. The regional office of the Forest Service rejected a subsequent administrative appeal, leaving a legal challenge as the last option for opponents of the expansion.
The resort says it needs the new development to meet the demand for intermediate terrain and to ease crowding on existing trails. Ski area officials initially claimed that the expansion wouldn’t attract additional skiers, but the subsequent Forest Service analysis showed that the new lift pod won’t do much — if anything — to address crowded slopes at Breckenridge.
The initial proposal elicited nearly 200 critical comments, as well as support from some local businesses and skiers. Concerns included social impacts centered around quality of life, as well as loss of healthy spruce forests, negative effects on lynx and the loss of access to close-in backcountry skiing terrain.
Supporters said the expansion is needed to meet the needs of guests and improve the overall skiing experience at Breckenridge. Some point out that Peak 6 has long been in the ski area’s permitted boundary, and that enhanced skiing will benefit the town overall.
In the formal Notice of Intent to Sue, the groups pointed out that the approval didn’t include any meaningful monitoring measures that would help the agencies determine whether they underestimated the project’s impacts to lynx. The notice also says the USFWS failed to identify reasonable or prudent measures to lessen the impacts of the project on the lynx or its prey.
A formal notice is required in a lawsuit challenging actions or decisions made pursuant to the Endangered Species Act. In this case, the notice focuses on parts of the approval process related to requirements of the ESA. If a lawsuit is filed, it could include other legal challenges that don’t have to be specifically identified in advance.
Overall, conservation groups say White River National Forest Supervisor’s Scott Fitzwilliams decision to “waive” protections for lynx by amending the forest’s resource plan fall short of meeting the agency’s obligations under the Endangered Species Act, said Matt Sandler, staff attorney with Rocky Mountain Wild.
According to the groups, the Forest Service failed its obligations to protect listed species by approving an action that will “permanently converting 81 acres of lynx habitat to non-habitat; indirectly decreasing lynx habitat by 340 acres; impairing connectivity that is paramount to maintaining a viable population of lynx; and lowering snowshoe hare populations that are essential to lynx conservation.”
In his decision, Fitzwilliams acknowledged lynx impacts, but outlined a conservation plan, funded in part by a Vail Resorts contribution, to help improve lynx habitat for the long-term on a regional level.
Aside from legal technicalities that could determine the outcome of a lawsuit, the larger biological question is whether the Peak 6 expansion will threaten the continued existence of lynx across North America.
The best available science — as well as common sense — suggest the project won’t do that, but that doesn’t mean that federal agencies don’t have to live up to the letter and spirit of the country’s guiding environmental laws.
Read the Notice of Intent here.
Read the U.S. Fish and Wildlife Service response here.