Maryland Attorney General Opinion 95 OAG 084

84 [95 Op. Att’y

NATURAL RESOURCES

S TATE E NDANGERED S PECIES A CT – R ESPONSIBILITIES OF THE
D EPARTMENT OF N ATURAL R ESOURCES, THE P UBLIC
S ERVICE C OMMISSION, AND O THER A GENCIES U NDER THE
E NDANGERED S PECIES A CT

March 23, 2010
REVISED

The Honorable George C. Edwards
The Honorable Wendell R. Beitzel
The Honorable Kevin Kelly
The Honorable LeRoy E. Myers
Allegany County Delegation

You have asked about the responsibilities of the Department of
Natural Resources (“DNR”), the Public Service Commission
(“PSC”), and other agencies with respect to the protection of
endangered species. Citing Animal Welfare Institute v. Beech Ridge
Energy LLC, 675 F. Supp. 2d 540 (D. Md. 2009), a case involving
the federal Endangered Species Act, you also ask whether “State law
similarly prohibits a corporation from setting up wind turbines that
may lead to the taking of endangered species.”

In comparison to the federal statute, the State endangered
species law provides similar, although not identical, protections for
State-listed threatened and endangered species. Given that the State
law was patterned after the federal statute, Maryland courts
construing the State statute are likely to apply the standards
developed under the federal statute. In Beech Ridge, the federal
district court granted an injunction against a wind energy project in
West Virginia after it was demonstrated that the project was
“reasonably certain” imminently to harm, kill, or wound a listed
endangered species and the developer of the project had not obtained
a permit allowing the incidental taking of an endangered species.
This opinion describes generally the roles of DNR, the PSC, and
certain other State agencies under the State endangered species laws.
In addition, it discusses possible consideration by DNR and the PSC
of impacts on endangered species when those agencies implement
statutes governing new power generating facilities.
Gen. 84] 85

I

Endangered Species Acts

A. The Federal ESA

The federal Endangered Species Act (“federal ESA”) makes
it unlawful for any person to “take any [endangered] species within
the United States.” 16 U.S.C. §1538(a)(1)(B). The federal ESA
defines the term “take” as “to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct.” 16 U.S.C. §1532(19).

Regulations defining “harm” and “harass”
The regulations implementing the federal ESA define the
activities that constitute an impermissible “take.” For example,
“harass” means “an intentional or negligent act or omission which
creates the likelihood of injury to wildlife by annoying it to such an
extent as to significantly disrupt normal behavioral patterns which
include, but are not limited to, breeding, feeding, or sheltering.” 50
CFR §17.3. “Harm” is an act that “actually kills or injures wildlife.
Such act may include significant habitat modification or degradation
where it actually kills or injures wildlife by significantly impairing
essential behavioral patterns, including breeding, feeding or
sheltering.” Id.

Civil and criminal penalties
A person who knowingly takes an endangered species in
violation of the federal ESA is subject to significant civil and
criminal penalties. 16 U.S.C. §1540(a) (authorizing civil fines of up
to $25,000 per violation); §1540(b) (authorizing criminal fines of up
to $50,000 and imprisonment for one year). The federal ESA
authorizes citizens to bring suit to enforce its provisions. 16 U.S.C.
§1540(g).

Incidental take permits
Congress amended the federal ESA in 1982 to provide a “safe
harbor” from these penalties. In particular, that amendment
established an “incidental take permit” (“ITP”) process that allows
an entity or other person to lawfully take an endangered species “if
such taking is incidental to, and not the purpose of, the carrying out
of an otherwise lawful activity.” 16 U.S.C. §1539(a)(1)(B). The
Beech Ridge court explained:
86 [95 Op. Att’y

Congress established this process to
reduce conflicts between species
threatened with extinction and
economic development activities, and to
encourage “creative partnerships”
between public and private sectors.

Beech Ridge Energy, 675 F.Supp. 2d at 544 (citations omitted).

Standard for showing that a project would “harm”

The Beech Ridge decision illustrates the application of the
“harm” prong of the ESA. In Beech Ridge, the plaintiffs filed an
action seeking declaratory and injunctive relief against Beech Ridge
Energy LLC, alleging that the construction and future operation of
its wind energy project in West Virginia would take endangered
Indiana bats, in violation of the federal ESA, 16 U.S.C.
§1538(a)(1)(B). Beech Ridge Energy had not obtained an ITP.

The question before the court was whether Beech Ridge
Energy should have obtained an ITP because the wind turbines
potentially would take the Indiana bats present at the project site. In
assessing this claim, the court observed that the federal ESA is silent
on the requisite degree of certainty for establishing a “take.” 675
F.Supp 2d at 562. After reviewing the holdings of other courts
construing the federal ESA and the history of the regulations
adopted by the federal Fish and Wildlife Service, it held that “in an
action brought under [§1538] of the ESA, a plaintiff must establish,
by a preponderance of the evidence, that the challenged activity is
reasonably certain to imminently harm, kill, or wound the listed
species.” Id. at 563. The court left open the possibility that a lesser
standard might apply if “harassment” were the basis of the alleged
take. See id. at 561 n.26, 563 n.29. On the facts of the case before
it, the court concluded that plaintiffs had met the potentially higher
standard and that Beech Ridge Energy should have obtained an ITP.
Accordingly, the court enjoined the company from building
additional wind turbines and from operating those already under
construction built unless the bats were in hibernation. Id. at 580-81.

Standard for showing that a project would “harass”
With respect to the standard for demonstrating whether a
project would “harass” an endangered species – a question left open
in Beech Ridge – there are few cases that construe that term. In
Babbitt v. Sweet Home Chapter, 515 U.S. 687 (1995), the Supreme
Gen. 84] 87

Court suggested that the term “harass” encompasses deliberate
actions aimed at the endangered species and would not include an
indirect means of injuring wildlife such as habitat modification –
which the Court held was covered by the term “harm.” The Court
stated, in relevant part:

…if the statutory term “harm”
encompasses such indirect means of
killing and injuring wildlife as habitat
modification, the other terms listed in
[the definition of “take”] – “harass,”
“pursue,” “hunt,” “shoot,” “wound,”
“kill,” “trap,” “capture,” and “collect” –
generally retain independent meanings.
Most of those terms refer to deliberate
actions more frequently than does
“harm,” … In addition, most of the
other words in the definition describe
either actions from which habitat
modification does not usually result
(e.g., “pursue,” “harass”) or effects to
which activities that modify habitat do
not usually lead (e.g., “trap,”
“collect”)....

515 U.S. at 698 n. 11.

The lower court decisions that construe the term “harass”
generally paraphrase the definition in the federal regulation. The
Ninth Circuit has stated that a party attempting to prove a “take” in
the form of harassment must demonstrate “by a preponderance of the
evidence that the proposed construction would … more likely than
not harass [the endangered species] by annoying it to such an extent
as to disrupt its normal behavioral patterns.” See Defenders of
Wildlife v. Bernal, 204 F.3d 920, 925 (9 th Cir. 1999).

In Marbled Murrelet v. Pacific Lumber Co., 880
F.Supp.1343, 1367 (N.D. Cal. 1995), the federal district court
granted injunctive relief in part because it found that a proposed
timber harvest during the breeding season of an endangered species
“creates the likelihood of injury [to the species] by annoying them
to such an extent that it will significantly disrupt their normal
behavior patterns.” On appeal, the Ninth Circuit affirmed the grant
of injunctive relief, but did not discuss the harassment standard or
the sufficiency of the evidence under that standard, as it determined
88 [95 Op. Att’y

that the timber harvest would “harm” the endangered species.
Marbled Murrelet v. Babbit, 83 F.3d 1060, 1068 & n.5 (9 th Cir.
1996), cert. denied, 519 U.S. 1108 (1997).

If, as suggested in the Sweet Home Chapter decision, the term
“harass” refers only to deliberate efforts to affect wildlife and does
not ordinarily include habitat modification, it may not apply to a
wind turbine project. In any event, it appears from the extant case
law that, to obtain relief on the basis that a project would “harass” an
endangered species, a plaintiff would have to demonstrate, by a
preponderance of the evidence, that it was “more likely than not”
that the project would annoy the endangered species to such an
extent as to disrupt normal behavior patterns.

B. The State ESA

Maryland has two virtually identical endangered species laws:
the Endangered Species of Fish Conservation Act, Annotated Code
of Maryland, Natural Resources Article (“NR”), §4-2A-01 et seq.;
and the Nongame and Endangered Species Conservation Act, NR
§10-2A-01 et seq. (collectively, the “State ESA”). These laws
prohibit the “take” of any endangered species of fish or wildlife. NR
§4-2A-05(c)(2); NR §10-2A-05(c)(2). The statutes also prohibit the
“take” of any fish or wildlife deemed by DNR to be “in need of
conservation,” except as provided by rules or regulations adopted by
DNR. NR §4-2A-03(c); NR §10-2A-03(c).

Definitions of key terms similar to federal law
The definition of “take” is the same as the federal ESA
definition. See NR §4-2A-01(h); NR §10-2A-01(h). DNR has
adopted regulations to implement the State ESA. See COMAR
08.03.08. Those regulations contain definitions of the terms
“harass,” COMAR 08.03.08.01B(5), and “harm,” COMAR
08.03.08.01B(6), that mirror the federal ESA regulations.1

1
The adverb “actually” appears before the verbs in the federal
regulation defining “harm.” See 50 CFR §17.3. That word and references
to habitat modification and degradation were removed from, but later
reinstated in, the federal regulation when an attempt was made to rewrite
it in 1981. See 46 Fed.Reg. 29490-94 (June 2, 1981); 46 Fed.Reg. 54748-
01 (November 4, 1981). In our view, the absence of that adverb from the
State definition of the term does not create a meaningful difference
between the federal and State definitions.
Gen. 84] 89

No Maryland appellate court has construed the terms “take,”
“harm,” or “harass” as they appear in the State ESA. However,
these are the same key terms that appear in the federal ESA and the
State ESA is designed specifically to coordinate with the federal
ESA. See NR §4-2A-02; NR §10-2A-02(3). Thus, it seems likely
that Maryland courts would apply the same standards applied under
the federal law as outlined in the previous section of this letter.

Creation of lists of species
The State ESA encompasses any species which is considered
endangered or threatened under the federal ESA. NR §4-2A-
01(d)(i); NR §10-2A-01(d)(i). In addition, the Secretary of Natural
Resources is to develop and maintain lists of threatened and
endangered species. NR §4-2A-04; NR §10-2A-04. Interested
persons may petition the Director of the Wildlife and Heritage
Service to add a species to the State list, or to remove one from it.
COMAR 08.03.08.02.

Remedies
A person who takes an endangered species protected by the
State ESA is subject to a fine of not more than $1,000, imprisonment
for not more than one year, or both. NR §4-2A-07; NR §10-2A-07.
However, the State ESA does not authorize civil penalties or citizen
suits. Nor is there a general provision for an incidental take permit.2
An incidental take permit may be issued, but only for the endangered
Puritan Tiger Beetle, NR §10-2A-05.1, or the endangered Delmarva
Fox Squirrel, NR §10-2A-05.2.

II

State Agency Responsibilities

You asked about the responsibilities of various State agencies
under the State ESA. The statute accords primary responsibility to
DNR, but also requires other State agencies to take account of
endangered species in certain contexts.

2
As explained in the next section of this opinion, DNR may issue
permits for certain other reasons.
90 [95 Op. Att’y

A. DNR

The statute requires DNR to perform certain functions and
authorizes it to take other actions. DNR is to conduct ongoing
investigations of fish and nongame wildlife in order to develop
conservation programs and regulations that limit the taking,
possession, transportation, export, and sale of species deemed to be
in need of conservation. NR §4-2A-03; NR §10-2A-03. In addition
to those species deemed “endangered” or “threatened” under the
federal ESA, DNR is to determine whether any other species of fish,
wildlife, or plant “normally occurring within the State is an
endangered or threatened species” due to, among other reasons, the
“threatened destruction, modification or curtailment of its habitat or
range.” NR §4-2A-04(b); NR §10-2A-04(b). The statute specifies
procedures for adding or removing a species from the list of
threatened or endangered species. NR §4-2A-04(d), -05(a); NR
§10-2A-04(d), -05(a). DNR is to create programs for conservation
of endangered or threatened fish, wildlife, and plants, including
acquisition of land and aquatic habitat. NR §4-2A-06(a); NR §10-
2A-06(a).

The State ESA authorizes the Secretary of Natural Resources
to issue permits for activities otherwise forbidden by the statute “for
scientific purposes” or “to enhance the propagation or survival of the
affected species.” NR §4-2A-05(f); NR §10-2A-05(f); see also
COMAR 08.03.08.03. The Secretary may also issue permits for
aquaculture operations involving endangered species. NR §4-2A-
05(f).

DNR may enter into conservation agreements with political
subdivisions, other states, federal agencies, and even individuals
concerning conservation of threatened or endangered species. NR
§4-2A-06(b); NR §10-2A-06(b).

Finally, DNR’s Natural Resources Police are authorized to
make arrests, conduct searches, and seize evidence and contraband
related to criminal violations of the State ESA. NR §4-2A-07; NR
§10-2A-07. If any fish, wildlife, plants, or related items are seized
as part of an investigation, DNR may oversee their safekeeping prior
to any forfeiture of those items. Id.

B. Other State Agencies

The State ESA requires that all “State departments and
agencies, in consultation with and with the assistance of [DNR],
Gen. 84] 91

shall utilize their authorities in furtherance of the [State ESA] … by
taking any action necessary to insure that actions authorized, funded,
or carried out by them do not jeopardize the continued existence of
the endangered species or threatened species or result in the
destruction or modification of habitat of the species which is deemed
by the Secretary to be critical.” NR §4-2A-06(c); NR §10-2A-06(c).

This provision applies to all State agencies. It can come into
play, for example, when the Maryland Department of the
Environment (“MDE”) issues permits in connection with its review
of projects under the Nontidal Wetlands Protection Act, Annotated
Code of Maryland, Environment Article (“EN”), §5-901 et seq. If
a landowner proposes to carry out regulated activities within
nontidal wetlands, the landowner must first apply for and obtain a
permit from MDE. When reviewing applications, MDE determines,
through consultation with DNR, whether the proposed project will
have an adverse impact on a listed species or its habitat. If it will,
MDE evaluates options for reconfiguring the project to avoid the
impact, and if the impact is unavoidable, requires mitigation
measures that ensure that the project will not “jeopardize the
continued existence of” a listed species or “result in the destruction
or modification of” the species’ critical habitat. See NR §4-2A-
06(c); NR §10-2A-06(c).

C. Public Service Commission

Responsibilities under State ESA
You specifically asked about the responsibilities of the PSC
with respect to endangered species. The State ESA itself does not
assign any particular responsibility to the PSC that is distinct from
other agencies. Like other agencies, the PSC is to consult with DNR
as necessary to ensure that its actions do not jeopardize the existence
of an endangered or threatened species or result in the destruction or
modification of critical habitat. In addition, under a law that
predates the State ESA – the Power Plant Siting Act of 1971 (“Siting
Act”)3 – the PSC is obligated to consult with DNR concerning the
environmental ramifications of certain matters before it. That
consultation may include the impact of a proposal on endangered
species. We describe that law in greater detail in the next section.

3
Chapter 31, Laws of Maryland 1971. The current version of the
Act is now codified in different sections in several articles of the
Annotated Code.
92 [95 Op. Att’y

Responsibilities under Siting Act
The Siting Act establishes a licensing process for certain new
generation facilities that integrates a comprehensive evaluation of a
proposed construction site and the impact of the project on the
surrounding community and the State. See generally Annotated
Code of Maryland, Public Utility Companies Article (“PUC”), §7-
207 et seq.; NR §§3-304 and 3-306.4 In particular, the PSC decides
whether to issue a certificate of public convenience and necessity
(“CPCN”) authorizing construction of a new facility. This
evaluation process may require the PSC to deny a particular
application or, more frequently, impose limitations on the proposed
construction due to findings and recommendations of other State
agencies reviewing the proposal in concert with the PSC.

Under the Siting Act, the PSC is the principal licensing
authority for new generation in Maryland, but is subject to a
requirement to evaluate and balance a number of factors as part of
the decision making process. PUC §7-207(e). Beyond this
consideration of specified factors, the PSC is required to ensure that
its approval of the project and any conditions imposed on the
developer meet State and federal statutory and regulatory
requirements as determined by MDE and, more importantly for this
issue, by a determination by DNR that a particular site is suitable for
the proposed construction. See PUC §7-208.

As a threshold issue, the Siting Act requires the Secretary of
Natural Resources to make a preliminary determination that a
proposed site is suitable for the proposed construction. NR §3-304.
Among the reasons for determining a site, or a portion of a site, is
unsuitable may be the presence of species protected under the State

4
The Siting Act predates the deregulation of electric generation.
The Act was written on the premise that only vertically integrated utilities
under the supervision of the PSC would build new generation. As a
consequence, utilities acquired power plant sites far in advance of needed
construction. Accordingly, the language in the Siting Act refers to
preliminary site evaluations and 10-year plans which no longer apply to
the development of generation in Maryland. However, the fundamental
requirements of the Siting Act are still observed, even though what are
commonly thought of as public utilities no longer build new generation.
In particular, the deregulation law requires that any “person” intending to
construct a generating station obtain a CPCN. Chapters 3,4, Laws of
Maryland 1999, codified in relevant part in PUC §7-207; see also
COMAR 20.79.
Gen. 84] 93

ESA. If, after evaluation of the environmental assessment done by
the reviewing agencies, the Secretary finds that construction would
result in unacceptable impacts, the Secretary may deem the site, or
a portion thereof, unsuitable. In that event, the PSC may not
approve the construction unless and until the condition or conditions
that support the Secretary’s determination are removed or otherwise
satisfactorily mitigated. NR §3-304. As a further limitation on the
PSC’s discretion, the Siting Act requires DNR and MDE to conduct
studies of the effects of the proposed project on certain of the State’s
resources and forward those studies and recommendations to the
PSC as part of the CPCN process. NR §3-306.5

5
For example, in a CPCN proceeding several years ago involving
an application for a 40 megawatt wind facility in Garrett County, the
Secretary of Natural Resources deemed a portion of a proposed site for an
array of wind turbines “not suitable,” in part because of the potential for
construction to result in a “take” of protected species. The Secretary
deemed the remainder of the site suitable and recommended that the PSC
grant the CPCN except to limit the project to suitable areas. See Letter of
Secretary C. Ronald Franks (November 2, 2005) & Initial Recommended
Condition 16 filed as Docket Item 101. In the Matter of the Application
Of Synergics Wind Energy, LLC. for a Certificate of Public Convenience
And Necessity to Construct a 40-MW Wind Power Facility in Garrett
County, Maryland, PSC Case No. 9008 (“Case No. 9008"). The Secretary
relied on an agency review of the proposed site that found a number of
State-listed species, particularly in the mid-portion of the site. See Case
No. 9008, Docket Items, 52, 78, and 88. In the CPCN proceeding, the
PSC hearing examiner accepted the Secretary’s recommendation and
issued a proposed order that granted a CPCN for the suitable portions of
the site, but prohibited construction in the unsuitable portion of the site.
See Case No. 9008, Docket Item 125 (October 31, 2006).

Subsequent legislation created an exception to the CPCN
requirement for wind generation facilities of 70 megawatts or less.
Chapter 163, Laws of Maryland 2007, now codified as PUC §7-207.1.
That provision also establishes an abbreviated approval process for these
facilities that does not include the same comprehensive environmental
review provided by the CPCN process. However, the PSC would still
have to take the State ESA into account in implementing that provision.
94 [95 Op. Att’y

III

Conclusion

In comparison to the federal ESA, the State ESA provides
similar, although not identical, protections for State-listed threatened
and endangered species. Given that the State ESA was patterned
after the federal statute, Maryland courts construing the State ESA
are likely to apply the standards developed under the federal ESA.
In Beech Ridge, the federal district court granted an injunction
against a wind energy project in West Virginia after it was
demonstrated that the project was “reasonably certain” imminently
to harm, kill, or wound a listed endangered species and the developer
of the project had not obtained a permit allowing the incidental
taking of an endangered species.

The State ESA charges DNR with carrying out particular
functions. It also requires all State agencies, in consultation with
DNR, to ensure that their actions do not jeopardize endangered or
threatened species. Finally, the PSC is to obtain the views of DNR
as to the suitability of energy projects, including wind projects that
satisfy certain criteria, when it decides whether to issue a CPCN for
such a project.

Douglas F. Gansler
Attorney General

Robert N. McDonald
Chief Counsel
Opinions and Advice

Editor’s Note:

This opinion was originally issued in slightly different form as
a letter of advice.