84 [95 Op. Att’y

NATURAL RESOURCES

STATE ENDANGERED SPECIES ACT – RESPONSIBILITIES OF THE

DEPARTMENT OF NATURAL RESOURCES, THE PUBLIC

SERVICE COMMISSION, AND OTHER AGENCIES UNDER THE

ENDANGERED SPECIES ACT

March 23, 2010

R E V I S E D

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 Cir. 1999). th

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

 The adverb “actually” appears before the verbs in the federal 1

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.

that the timber harvest would “harm” the endangered species.

Marbled Murrelet v. Babbit, 83 F.3d 1060, 1068 & n.5 (9 Cir.

th

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
Gen. 84] 89

 As explained in the next section of this opinion, DNR may issue 2

permits for certain other reasons. 

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 §4-2A01(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. 
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 §4-2A05(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

 Chapter 31, Laws of Maryland 1971. The current version of the 3

Act is now codified in different sections in several articles of the

Annotated Code.

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 §4-2A06(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”) – the PSC is obligated to consult with DNR concerning the 3

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.
92 [95 Op. Att’y

 The Siting Act predates the deregulation of electric generation. 4

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.

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. In particular, the PSC decides 4

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
Gen. 84] 93

 For example, in a CPCN proceeding several years ago involving 5

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.

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
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.