In Defenders of Wildlife v. United States Fish & Wildlife Service, 2016 U.S. Dist. LEXIS 109509, the Northern District of California refused to preliminarily enjoin Panoche Valley Solar (PVS) from constructing a 247-megawatt solar facility comprised of approximately 1,529 acres of photovoltaic panels installed on a 2,154-acre site in the Panoche Valley in San Benito County.

The Panoche Valley is home to a variety of endangered species, such as the blunt-nosed leopard lizard, the San Joaquin kit fox, and the giant kangaroo rat.  Each of these species has been in decline due to loss of habitat or fragmentation of existing habitat.  The giant kangaroo rat, for example, survives in less than five percent of its historic geographic range.

In early 2016, the U.S. Fish and Wildlife Service (FWS) issued a biological opinion (BO) under the Endangered Species Act, concluding that the project would not likely jeopardize the survival and recovery of any of the species identified above.  Accordingly, FWS issued an incidental take statement, which authorized limited take of the listed species during the project construction, operation, and maintenance for the life of the project.

While the BO acknowledged that the solar facility would permanently impact 1,688 acres of habitat and temporarily impact 466 acres of habitat, such impacts were minimized by conditions to reduce the anticipated take.  Conditions included designing the project to avoid areas with high densities of listed species, monitoring construction work by FWS-approved biologists, relocating species to nearby habitat, and preserving and managing conservation land for the species covered by the incidental take statement.

Based on the BO, the U.S. Army Corps of Engineers issued a Section 404 permit pursuant to the Clean Water Act, authorizing PVS to discharge dredged or fill material into 0.121 acres of waters of the United States.

Both the BO and the Section 404 permit were challenged in federal court by the Defenders of Wildlife, Sierra Club, and the Santa Clara Valley Audubon Society. After finding it was unlikely that plaintiffs would succeed on the merits, the Court denied their request for a preliminary injunction. This decision allows PVS to rely on the BO and Section 404 permit while the matter is litigated.