Hydropower companies are now challenging in court an Endangered Species Act rule change that the Biden administration says protects vulnerable fish but that the hydro industry considers burdensome and unjustified.
In a potentially far-reaching lawsuit filed Friday, the National Hydropower Association and the Northwest Hydroelectric Association seek to reverse the administration’s rule that mitigation measures can be required as a condition of obtaining a hydro license. The potential requirement for mitigation measures, also known as offsets, goes further than the previous policy. That policy urged hydro license applicants to take steps to “minimize” the harm to federally protected species.
The Fish and Wildlife Service and NOAA Fisheries imposed the changes in May 2024 as part of a broader effort to update and strengthen Endangered Species Act regulations.
“The Services’ long held position was that mitigation measures — i.e., offsets — are not appropriate minimization measures,” the lawsuit states, adding that “the Services’ explanation of their departure from this longstanding understanding relies on a novel, unnecessary and incorrect interpretation of the ESA.”
