On July 24, 2015, the U.S. Fish and Wildlife Service (Service) published a notice seeking authorization from the Office of Management and Budget to evaluate habitat conservation banks established under the Endangered Species Act (ESA) through a survey of bank sponsors and managers. 80 Fed. Reg. 44,147. The Service and the Department of the Interior’s Office of Policy Analysis state that they are undertaking this effort to “identify potential institutional or other impediments to the habitat conservation banking program, and develop possible options for encouraging expanded use of the program.”
As of January 2015, 132 habitat conservation banks were approved by the Service. The upcoming survey is designed to encompass all types of entities that sponsor habitat conservation banks—at both the corporate, or organizational, and the individual bank level—and aims to gather the following information through voluntary responses: (1) background information on the banks; (2) information about experience with the conservation banking program; (3) perceptions of technical and institutional obstacles encountered in the conservation banking program; and (4) perceptions of incentives that would help foster successful banks.
At this stage, the Service is requesting comments on the survey itself, specifically: (1) whether or not it is necessary and of practical utility; (2) the accuracy of the Service’s estimate of the burden for the survey; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the survey on respondents. The notice states that public comments on the survey are being accepted through August 24, 2015.
Whether dealing with water or with endangered species directly, there have been a number of recent developments that are worth keeping on your radar. Below is a quick summary of some of the more significant items:
July 16, 2015 – The House of Representative, in a largely partisan vote, passed H.R. 2898, the Western Water and American Food Security Act of 2015, by a vote of 245-176. The Act, which is intended to ease some of the effects of the unprecedented drought gripping California, requires, among other things, for the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, and the Bureau of Reclamation to work with various California agencies and interested parties to increase water exports from the Central Valley Project and State Water Project. Immediately after the House passed the Act, a number of environmental groups voiced their opposition, citing potential impacts to federally protected fish species. Whether the House’s actions will result in any relief for California is still very much up in the air, as reports indicate that even if Republicans are able to garner the necessary Democratic votes to have the Act pass the Senate, the President is likely to veto the Act. (See July 16, 2015 Los Angeles Times article by Colin Diersing and Monte Morin.)
July 16, 2015 – The U.S. Fish and Wildlife Service and National Marine Fisheries Service announced a 60-day extension of the public comment period for proposed revisions to the Endangered Species Act petition regulations. According to the announcement, public comments will now be accepted if received on or before September 18, 2015. For a further discussion of the proposed revisions, see our May 19, 2015 post.
July 20, 2015 – People for the Ethical Treatment of Animals (PETA) filed a federal lawsuit against the Miami Seaquarium alleging that by keeping Lolita, a killer whale (Orcinus orca), in captivity, the Seaquarium is violating the Endangered Species Act (ESA). (See PETA’s July 20, 2015 Update.) Lolita is the only captive member of the Southern Resident killer whale Distinct Population Segment (DPS). While the 2005 DPS listing under the ESA excluded captive members of the species from ESA protection, an amendment in early 2015 eliminated that exclusion. (See our prior posts for additional background: January 31, 2014, January 22, 2015, February 16, 2015.)
In Building Industry Association of the Bay Area v. U.S. Department of Commerce, a decision with significant implications for property owners, the building industry, and the development community at large, the U.S. Court of Appeals for the Ninth Circuit rejected various challenges to the National Marine Fisheries Service’s (NMFS) critical habitat designation for the southern distinct population segment of North American green sturgeon (Acipenser medirostris), holding that (1) while NMFS must “consider” the economic impacts of designating areas as critical habitat, NMFS is not required to do a cost-benefit analysis, and (2) if NMFS decides not to exclude land from a critical habitat designation, that decision cannot be challenged in court. 2015 U.S. App. LEXIS 11645 (9th Cir. July 7, 2015).
Shortly after NMFS issued a final rule designating critical habitat for the green sturgeon, plaintiffs filed a lawsuit alleging that NMFS failed to comply with Section 4(b)(2) of the Endangered Species Act. Section 4(b)(2) provides that NMFS “shall” designate critical habitat after considering, among other things, the economic impact of designating any particular area as critical habitat. NMFS “may” exclude any area from designation if it determines the benefits of exclusion outweigh the benefits of designating the area as critical habitat.
Plaintiffs argued that Section 4(b)(2) created a nondiscretionary duty to “consider” the economic impacts of designating an area as critical habitat, and that it specifically required a “balancing-of-the benefits” methodology when considering such impacts.
The Ninth Circuit rejected this argument, concluding that after NFMS considered the economic impact of the designation, the entire exclusionary process is discretionary and there is no particular methodology that NMFS is required to follow. The Ninth Circuit found that the use of “outweigh” in the second sentence of Section 4(b)(2) limited the agency’s discretion to exclude areas from designation, but did not require the agency to weigh the economic benefits of exclusion against the conservation benefits of inclusion.
The Ninth Circuit also rejected plaintiffs’ claim that NMFS failed to take into consideration the economic impacts of designating “high conservation value” (HCV) areas, finding that the record demonstrated economic impacts in HCV areas were considered. And, it was after considering those impacts that NMFS determined that the HCV areas were critical to recovery of the green sturgeon and could not be excluded from designation.
Finally, the Ninth Circuit found that NFMS’s decision not to exclude areas from critical habitat is not reviewable. Citing its recent decision in Bear Valley Mutual Water Co. v. Jewell, 2015 WL 3894308 (9th Cir. Jun. 25, 2015), the court explained that the decision is unreviewable because section 701(a)(2) of the Administrative Procedure Act excludes agency action from judicial review if the agency action is committed to agency discretion by law.
On July 6, 2015, the U.S. Fish & Wildlife Service (Service) published a Draft Polar Bear (Ursus maritimus) Conservation Management Plan (Polar Bear Plan). The Polar Bear Plan identifies the continuing loss of sea-ice habitat as the single greatest threat to the species’ continued survival, and the global reduction of greenhouse gases (GHG) as the most important action to halt and reverse this trend. The Polar Bear Plan also addresses several “high priority” actions designed to maintain the polar bear population, including reducing risks from spills, protecting terrestrial denning habitat, and managing human-bear conflicts, so that when the species’ sea-ice habitat returns, it is sufficiently abundant and genetically diverse to recover.
Photo: U.S. Fish and Wildlife Service
In 2008, the Service listed the polar bear as threatened under the Endangered Species Act (ESA). Although the 2008 listing rule identifies sea-ice loss as the primary threat to the species, it does not prohibit or otherwise limit activities outside the current range of the polar bear, such as GHG emissions, even if a causal connection can be made between the conduct of the activity and the effects on the species.
The Service prepared the Polar Bear Plan to meet its statutory obligation under the ESA to prepare a recovery plan for each listed species. Because the polar bear is a listed species under the ESA, it is also considered “depleted” under the Marine Mammal Protection Act (MMPA). Thus, the Polar Bear Plan is also intended to serve as a conservation plan under the MMPA.
Although the Polar Bear Plan emphasizes that the single most important action for conservation and recovery of polar bears is to stop Arctic warming and the loss of sea-ice by limiting atmospheric levels of GHG, the Polar Bear Plan does not include GHG emission reduction thresholds or other quantitative measures to reduce atmospheric levels of GHGs. Rather, the Polar Bear Plan proposes development and implementation of a communications strategy to educate national and international audiences about the cause of Arctic warming and loss of sea-ice and the dire consequences to both the polar bear and Arctic peoples with connections to the species.
Among other things, the Polar Bear Plan’s conservation management strategy includes measures to minimize risk of spills to the polar bear, triggered in part by the opening of new shipping lanes and the prospect of offshore oil exploration and development due to summer sea-ice declines. Planned conservation and recovery actions include continued feedback on oil exploration plans and compliance documents, as well as “vigilant” implementation of existing regulatory mechanisms, including the National Environmental Policy Act, the ESA, and the MMPA.
The Service is accepting public comments on the Polar Bear Plan until August 20, 2015.
On July 1, 2015, the U.S. Fish and Wildlife Service (Service) published notice of its 90-day findings on petitions to list 31 species under the Endangered Species Act (ESA). Of these 31 species, all of which occur in the United States, the Service made positive 90-day findings on 21 petitions. A positive finding on a listing petition prompts a 12-month review of each species by the Service to determine whether listing is warranted. Of the remaining ten petitions, the Service concluded that nine petitions failed to provide substantial information demonstrating that listing action may be warranted. Most species addressed in the findings originated from a 53-species mega-petition filed by the Center for Biological Diversity (CBD) in July 2012. If the Service finalizes its May 21, 2015 proposed rule to revise the regulations for species listing petitions, multi-species petitions such as the one filed by CBD will no longer be accepted by the Service.
Perhaps most notably, the Service’s publication included a denial of the petition to reclassify or “downlist” the gray wolf (Canis lupis) from its current status as endangered to threatened. Twenty-two petitioners (including the Humane Society of the United States, CBD, and the Sault Sainte Marie Tribe of Chippewa Indians) signed the 2015 petition requesting reclassification of the gray wolf (excluding the Mexican wolf subspecies (Canis lupus baileyi) throughout the conterminous United States). The Service first concluded that the petition failed to provide substantial information indicating that the population proposed for reclassification may qualify as a distinct population segment. The Service acknowledged that this finding alone was enough to deny the petition for reclassification, but stated that the status of the gray wolf has been a source of significant controversy over the past few years, and due to the controversy, also concluded that the petition did not provide substantial information indicating that the gray wolf at large would qualify as threatened rather than endangered.
In a decision that casts a shadow on the enforceability of contractual assurances in habitat conservation plan (“HCP”) agreements, the U.S. Court of Appeals for the Ninth Circuit rejected various Endangered Species Act (“ESA”) and National Environmental Policy Act (“NEPA”) challenges to the U.S. Fish and Wildlife Service’s (“Service”) designation of critical habitat for a native fish species (the Santa Ana Sucker) on the Santa Ana River in Southern California. Bear Valley Municipal Water Company v. Jewell, No. 12-57297 (9th Cir. June 25, 2015).
This is the first case to address the interplay between the “No Surprises” Rule and the Service’s discretion under section 4 of the ESA to exclude areas from critical habitat based on “economic impact” and “any other relevant impact . . . .” The case is also the first to address whether the ESA policy provision directing the federal wildlife agencies to coordinate with local agencies to “resolve water resource issues” imposes enforceable obligations on the wildlife agencies.
In the 1990s, the Service approved the Western Riverside County Multiple Species Habitat Conservation Plan (“Western Riverside HCP”) – a multi-species conservation plan covering over a million acres in urban Southern California. In 2010, the Service’s critical habitat rule relating to the sucker designated 3,048 acres on the Santa Ana River covered by the Western Riverside HCP.
The implementing agreement for the Western Riverside HCP included a “No Surprises” provision, stating that “to the maximum extent allowable,” unless the Service found that the HCP was not being implemented, the Service would not designate critical habitat for a covered species that was adequately conserved by the Western Riverside HCP. The Service did not make the finding required by the agreement, and the court acknowledged that the Western Riverside HCP was being implemented.
The Ninth Circuit decided the issues on appeal as follows:
- The Service’s designation of critical habitat on the Santa Ana River within the area of the Western Riverside HCP complied with the ESA and did not violate the agreement implementing the HCP. The Service’s decision to not exclude the HCP areas from critical habitat is committed to the discretion of the Service and is not reviewable by the court. In any event, the critical habitat designation did not violate the HCP agreement because the Service has not imposed additional requirements on the parties to the agreement.
- The policy provision in the ESA regarding consultation with agencies to “resolve water resource issues in concert with conservation of endangered species” is a “non-operative statement of policy” that is implemented through the listing and critical habitat designation provisions of the ESA. The Service complied with the procedures applicable to designation of critical habitat.
- The designation of critical habitat in areas that are not occupied by the sucker complied with the ESA. The ESA allows the Service to designate unoccupied areas of critical habitat if the Service finds that the designation is essential to the conservation of the species and the designated occupied areas are inadequate to conserve the species. The Service concluded that the unoccupied areas were “essential” because they provide water and course sediment necessary to maintain preferred substrate conditions.
- The designation of critical habitat is not subject to NEPA. The panel concluded that it was bound by the prior Ninth Circuit decision holding that NEPA does not apply to the designation of critical habitat. Notably, the Tenth Circuit has held to the contrary.
On June 18, 2015, the U.S. District Court for the Eastern District of California denied a motion for a temporary restraining order and preliminary injunction, finding the plaintiff failed to establish that an emergency salinity barrier would imminently harm species listed under the Endangered Species Act (ESA). Center for Environmental Science, Accuracy & Reliability (“CESAR”) v. Cowin, No. 1:15-cv-00884-LJO-BAM (E.D. Cal Jun. 18, 2015) (pdf).
CESAR filed an action against the California Department of Water Resources (DWR) and the U.S. Fish and Wildlife Service (Service) on June 11, 2015, seeking to enjoin the construction and operation of an Emergency Drought Salinity Barrier at West False River (Project) in the Sacramento-San Joaquin Delta (Delta). CESAR further sought to require the Service to reinitiate consultation under the ESA “due to changed circumstances, to wit, the construction and operation of the Project.” Among other things, CESAR argued that the Project would adversely impact species listed under the ESA, including the delta smelt (Hypomesus transpacificus).
DWR constructed the Project in response to Governor Brown’s Executive Order B-29-15, which directed DWR to plan, and, if necessary, implement emergency salinity barriers at various locations within the Delta. The Project is intended to reduce saltwater intrusion into the central Delta resulting from California’s prolonged drought. According to DWR, if the Project was not installed, salinity levels in the Delta would degrade water quality to levels that would render it unacceptable as a source for drinking water or commercial and industrial uses, thereby creating risks to human health and safety. Installation of the Project was completed on June 15, 2015, with approximately 150,000 tons of rock comprising the salinity barrier. DWR obtained most of the required federal permits for the Project on an emergency basis.
The court denied plaintiff’s motion, holding CESAR failed to demonstrate a reasonably certain threat of imminent harm to ESA-listed species. Given that the Project had already been installed, the court construed CESAR’s motion as a request to have the Project removed, thereby applying the heightened standard for a mandatory injunction. The court found that the “potential” impacts described by CESAR were insufficient to meet its burden of establishing that the Project would irreparably harm the species, opining that CESAR was required to demonstrate significant harm to the overall population.
On June 17, 2015, the U.S. Court of Appeals for the Ninth Circuit ruled that the U.S. Forest Service (Service) violated section 7 of the Endangered Species Act (ESA) by failing to reinitiate consultation with the U.S. Fish and Wildlife Service (FWS) regarding the impacts of a revised critical habitat designation on the Canada lynx (Lynx canadensis). Cottonwood Environmental Law Center v. U.S. Forest Service, No. 13-35624 (9th Cir. Jun. 17, 2015) (pdf). The Canada lynx was listed as threatened in 2000, and a limited amount of critical habitat was designated for the species in 2006, which did not include any National Forest System land. Subsequently, the Service issued guidance for its land management and permitting activities—referred to as the Lynx Amendments—upon which it consulted with FWS, resulting in a determination that the guidance did not jeopardize the species. When agency misconduct and flaws were discovered in the critical habitat designation process, FWS revised the critical habitat designation upward from 1,841 to 39,000 square miles, including land in eleven National Forests. The Service then declined to reinitiate consultation with FWS on the Lynx Amendments. An environmental group challenged this decision, alleging that the Service’s failure to consult violated section 7 of the ESA. The plaintiffs sought reinitiation of consultation on the Lynx Amendments, which were incorporated into the Forest Plans for eighteen National Forests, as well as injunctions on two projects for which the biological opinions were informed by the Lynx Amendments.
Upholding the decision of the U.S. District Court for the District of Montana, the Ninth Circuit held that the revised designation of critical habitat for the Canada lynx required reinitiation of section 7 consultation on the Lynx Amendments. The Court determined that, due to the designation of new critical habitat and the Forest Service’s retention of discretionary involvement and control over the Forest Plans, reinitiation of consultation with FWS was required. However, the Court declined to enjoin the projects, based on an analysis of two U.S. Supreme Court decisions that the Court interpreted as overruling Ninth Circuit precedent, Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985), which established a presumption of irreparable injury in cases involving ESA procedural violations. Interestingly, the two cases relied upon by the Ninth Circuit—Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), and Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010)—both arose under the National Environmental Policy Act (NEPA), which the Court analogized to procedural ESA cases, concluding that Thomas had been overturned. Ultimately, the Court held that there is no presumption of irreparable injury when there has been a procedural ESA violation, and plaintiffs must show irreparable injury to justify injunctive relief. Because the Court’s decision altered long-established Ninth Circuit precedent, the Court remanded the case to allow the plaintiffs to make the necessary showing.
Governor Brown has announced the nomination of Eric Sklar and Anthony Williams to serve on the California Fish and Game Commission (Commission). The five-member Commission is established under article IV, section 20 of the California Constitution. Under section 200 of the Fish and Game Code, the Commission has the power to regulate the taking or possession of birds, mammals, fish, amphibia, and reptiles. Among other things, the Commission enacts hunting and sport-fishing regulations and determines whether to list and de-list species under the California Endangered Species Act.
The present membership of the Commission includes President Jack Bayliss of Los Angeles, Vice President Jim Kellogg of Discovery Bay, and members Jacque Hostler-Carmesin of McKinleyville, Richard Rogers of Santa Barbara, and Michael Sutton of Monterey. The terms of Commissioners Rogers and Sutton expired in January 2011 and January 2015, respectively, but under California law they continue to serve until their successors are appointed and qualified.
According to the Governor’s announcement, Eric Sklar resides in St. Helena and is founder and managing partner at Cs2 Wines LLC and president at Preslar Ventures Inc. In addition, Anthony Williams resides in Huntington Beach and is director of government relations at the Boeing Company.
On June 15, 2015, Senator James Inhofe (R-Okla.), Chairman of the U.S. Senate Committee on Environment and Public Works, and Congressman Rob Bishop (R-Utah), Chairman of the U.S. House Committee on Natural Resources, sent a letter to Gina McCarthy, Administrator for the U.S. Environmental Protection Agency (EPA), criticizing the EPA’s failure to consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (Services) regarding the potential impacts of the Obama administration’s proposed Clean Power Plan on endangered and threatened species. Section 7 of the Endangered Species Act (ESA) requires federal agencies to consult with the Services when an agency takes an action that may affect a listed species or its designated critical habitat. The Congressmen’s letter alleges that the two rules proposed by the Obama administration to reduce carbon dioxide emissions from power plants may affect “a plethora of endangered species” whom the EPA has found to be affected by climate change.
Previously, the EPA engaged in an analysis of the existing rule regulating power plants and found that, because the rule was likely to have positive effects on species by reducing overall greenhouse gas (GHG) emissions, section 7 consultation was unnecessary. The letter of June 15 alleges that the EPA had to engage in consultation regarding the new power plant rules because the new rules will result in the early closing of a significant number of coal-fired power plants and coal-fired generating units, and such closings “are precisely the kind of real-world impacts the EPA must assess before promulgating a rule.” Specifically, the letter points to two power plants in Florida that are designated manatee refuges whose closures “would significantly and adversely affect the endangered manatee.”
The letter also requests that the EPA turn over all “records, documents, analyses, memoranda, and communications” concerning the potential impacts of the rules on endangered species and provide evidence that the EPA fulfilled its obligations to analyze those impacts and consult with the Services. The letter requests that the EPA provide these documents to the congressional committees by June 22, 2015.