Last week Judge Wilson of the Eastern District of Arkansas issued a decision in National Wildlife Federation v. Harvey, a case concerning a challenge to the U.S. Army Corps of Engineers' project to build a pump and irrigation system from the White River to supply water to the neighboring Grand Prairie, a major rice producing area in Arkansas. The Court rejected most of the plaintiff's NEPA and E$A attacks on the Section 7 consultation documents at issue. Nevertheless, the Court overturned the Corps and the Service's decision that the proposed irrigation project would not jeopardize the woodpecker. The error in the Service's actions lay, per the Court, in the decision to reduce the amount of time spent monitoring potential woodpecker cavities in trees in the project's action area. The Court concluded that the Service had failed to articulate a reasoned explanation as to why the Service had adopted a "two nonconsecutive day" as opposed to a "five consecutive day" monitoring protocol. Accordingly, the Court vacated the consultation documents and remanded the matter to the Service and the Corps.
Presumably, if the Service and the Corps develop a reason, on remand, as to why the reduced monitoring protocol is proper, or, if the agencies, using the older protocol, can reasonably reach the same conclusion of "not likely adversely to affect" the woodpecker, then the project should still go through.