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Endangered Species Law and Policy

Endangered Species Act Roundup – Three For the Price of One

Posted in Fish & Wildlife Service, Listing, Litigation, Uncategorized

Although there were some notable downperiods when it came to Endangered Species Act news over the past twelve months, the past few weeks have been anything but slow.  Below are a few of the more recent newsworthy items that have rolled off the presses:

December 11, 2014 – U.S. Fish and Wildlife Service issues a final rule listing the rufa red knot (Calidris canutus rufa) as a threatened species.  The rufa red knot is a migratory shorebird that breeds in the Canadian Artic, and winters in parts of the United States, the Carribean, and South America.  The final rule states that the listing is due to “loss of both breeding and nonbreeding habitat; likely effects related to disruption of natural predator cycles on the breeding grounds; reduced prey availability throughout the nonbreeding range; and increasing frequency and severity of asynchronies (mismatches) in the timing of the birds’ annual mirgratory cycle relative to favorable food and weather conditions.”

December 11, 2014 – U.S. Fish and Wildlife Service announces the availability of the Draft Recovery Plan for Santa Rosa Plain, which includes the Sonoma County Distinct Population Segment of the California Tiger Salamander (Ambystoma californiense) and three plant species.  The announcement states that the “primary threat to these species is modification and destruction of suitable habitat due to urbanization, agricultural conversion, competition with non-native plants, and climate change.”  The Service estimates the total incremental economic effect of the recovery plan to be $463 million over the next fifty years.  According to the announcement, the Service will be accepting comments on the draft recovery plan through February 9, 2015.

December 12, 2014 – The State of Colorado notifies the U.S. Fish and Wildlife Service of its intent to sue the Service and challenge the final rule listing the Gunnison sage-grouse (Centrocercus minimus) as a threatened species.  We blogged about the rule here.



NMFS Publishes Corrected Proposed Critical Habitat Designation for Arctic Ringed Seal

Posted in Critical Habitat, National Marine Fisheries Service

On December 9, 2014, the National Marine Fisheries Service (NMFS) and Secretary of Commerce published a revised proposed rule designating critical habitat for the Arctic Ringed Seal.  The previous proposed rule was published here (and reported on this blog here) on December 3rd.  Citing a clerical error, NMFS withdrew the December 3rd rule, claiming it “contained numerous errors.”  The rule published today is intended to replace the prior critical habitat designation, and the comment period will reopen effective today and will remain open until March 9, 2015.

Court Holds Small Business Administration and Farm Service Agency Must Consult on Loan Guarantees

Posted in Court Decisions

A federal district court in Arkansas recently issued a decision clarifying that the obligation to consult under section 7(a)(2) of the Endangered Species Act (ESA) extends to the Small Business Administration and the Farm Service Agency when they provide loan guarantees to farmers.  The case, Buffalo River Watershed Alliance v. U.S. Dept. of Agriculture, Case No. 13-450 (E.D. Ark. Dec. 2, 2014), involves a concentrated animal feeding operation in Arkansas that obtained loan guarantees from the Small Business Administration and the Farm Service Agency.  The Farm Service Agency, pursuant to the National Environmental Policy Act (NEPA), completed an environmental assessment and issued a Finding of No Significant Impact with respect to its proposed action to provide a loan guarantee.  In contrast, the Small Business Administration determined it had no obligation under NEPA.  Neither agency obtained a biological opinion from the U.S. Fish and Wildlife Service regarding its actions, though it apparently is undisputed that the federally listed gray bat occupies the area.  In holding that both the Small Business Administration and Farm Service Agency were required to consult and had failed to so in contravention of the ESA, the Court explained:

The Agencies argue that their guaranties were not actions within reach of the Endangered Species Act. This argument … understates the role of the guaranties.

The court provided a one year deadline for compliance and consultation with the U.S. Fish and Wildlife Service.

U.S. Fish and Wildlife Service Releases 2014 Threatened and Endangered Species Candidate List

Posted in Fish & Wildlife Service, Fish & Wildlife Service, Fish & Wildlife Service, Listing

On December 5, 2014 the U.S. Fish & Wildlife Service (USFWS) released its Fiscal Year 2014 Threatened and Endangered Species Candidate list.  Under the Endangered Species Act (ESA), when the USFWS either receives a petition from a third party to list a species as threatened or endangered, or when the USFWS decides of its own accord to evaluate a species for listing, it is required to issue a 90 day finding on the potential listing, and then a 12-month finding, followed by a determination on the species’ status.  Forty species received final listing decisions this year.  USFWS may delay a listing decision on a species if it finds that the listing of a species is “warranted but precluded” by other, higher-priority species.  This year, USFWS reviewed 146 candidate species.

When reviewing candidate species for listing, USFWS gives each species a listing priority number (LPN) based on the magnitude and imminence of threats to the species’ continued existence.  LPNs range from 1 to 12, with 1 being the highest priority, and 12 being the lowest priority for listing.  Priorities have three categories for taxonomic status: species that are the sole member of a genus; full species (where the genus has more than one species); and subspecies or distinct population segments (DPS) of vertebrate species.  The list released by USFWS recognized 23 species that are new candidates for listing, including one bird (the Ma’oma’o (Gymnomyza samoensis)) native to American Samoa, eighteen flowering plants native to one or more Hawaiian islands, and four ferns native to one or more Hawaiian islands.  All of the new candidate species received an LPN of 2 or 3.  One bird species, the Sprague’s pipit (Anthus spragueii), received a revised LPN based on a decreased magnitude of threats and overall stability of its population, and was accordingly downgraded from LPN 8 to LPN 11.  The Packard’s milkvetch (Astragalus cusickii var. packardiae) was removed from the candidate species list based on the species’ positive response to a 2013 Bureau of Land Management decision to permanently close 5,620 acres within and near Packard’s milkvetch habitat to off highway vehicle use, eliminating the largest threat to the species from 68% of its occurrences.

Of the species that retained “warranted but precluded” findings, USFWS anticipates publishing a listing determination for 27 species within the next year.  The deadlines for listing determinations on these 27 species are imposed either by court order or a settlement agreement.  Notably, the Columbia Basin DPS of Greater sage-grouse (Centrocercus urophasianus) was not included in the number of species expecting listing determinations within the next 12 months, though USFWS will continue to monitor the status of the DPS.  A number of already listed species received petitions for reclassification from threatened to endangered.  USFWS found that reclassification of one population (North Cascades ecosystem population) of Grizzly Bear (Ursus arctos horribilis), Delta Smelt (Hypomesus transpacificus), and Pariette Cactus (Sclerocactus brevispinus) from threatened to endangered was warranted but precluded by the current work on new candidate species. USFWS found that reclassification was not warranted for two other populations of Grizzly Bear.

For the species that remain candidates for listing, USFWS is soliciting any additional or updated information on an ongoing basis.

Yellow-Billed Cuckoo Critical Habitat: U.S. Fish & Wildlife Service Sets December 18, 2014 Public Hearing in Sacramento

Posted in Critical Habitat, Fish & Wildlife Service

As we reported in November, the U.S. Fish & Wildlife Service (Service) has been planning to hold a public hearing on the proposal to designate 546,335 acres of critical habitat for the western population of yellow-billed cuckoo (Coccyzus americanus) across nine western states.  The Service recently announced that the public hearing will take place on December 18, 2014, in Sacramento, California.  The deadline to submit comments is January 15, 2015, and comments may be provided in writing or verbally at the public hearing.

The proposed critical habitat for the western population of yellow-billed cuckoo (cuckoo) is based on the species’ close association with riparian habitat along low-gradient rivers and streams and open riverine valleys that provide floodplain conditions.  All of the 80 proposed critical habitat units across California, Arizona, New Mexico, Colorado, Utah, Idaho, Nevada, Wyoming, and Texas are rivers, creeks, lakes, dams, washes, and other watercourses and impoundments.

The Service identifies as primary threats to cuckoo habitat changes in hydrology associated with dams, surface and groundwater diversions, and fluctuating reservoir levels, as well as floodplain encroachment associated with agricultural and other development activities, bank stabilization, levee construction and maintenance, road and bridge maintenance activities, and gravel mining.  According to the Service, such activities, when undertaken by a federal agency, or requiring a federal permit or federal funding, may be regulated under Section 7 of the Endangered Species Act to reduce potential the destruction or adverse modification of designated critical habitat, including management of water resources and flood control across hundreds of miles of rivers, streams, and other water bodies across the western United States.

The Service recommends special management activities to restore natural hydrological regimes and to reduce water diversions and ground water pumping that degrade cuckoo’s riparian habitat.  The listing of and designation of critical habitat for the cuckoo places it in the company of species whose protection is fraught with policy choices requiring a balance between the future water demands across the western U.S. and survival and recovery of such species.

The Service is seeking comments from governmental agencies, Native American tribes, the scientific community, industry, and any other interested parties concerning the proposed critical habitat.  The Service is particularly interested in comments concerning special management and protections of the cuckoo’s habitat that may be needed – or are already being provided – as related to the Service’s final determination to include or exclude particular areas from designation.


National Marine Fisheries Service Issues Biological Opinion for Army Corps of Engineers’ Nationwide Permit Program

Posted in Consultation, National Marine Fisheries Service

On November 24, 2014, the National Marine Fisheries Service (Service) issued (pdf) a new Biological Opinion (BiOp) (pdf) for the U.S. Army Corps of Engineers’ (Corps) Nationwide Permit Program under the Clean Water Act.  The BiOp constitutes the conclusion of the formal programmatic consultation process between the Corps and the Service under the Endangered Species Act (ESA) for the Corps’ revisions to and renewal of expiring nationwide permits authorizing a wide variety of activities under the Clean Water Act, such as mooring buoys, residential developments, utility lines, road crossing, mining activities, wetland and stream restoration activities, and commercial shellfish aquaculture activities.

The Corps’ 2012 actions included reissuing 48 exiting nationwide permits and adding two new ones.  The new permits provide expedited review of projects that have minimal impact on the aquatic environment.   The categories of projects that may be included under the new nationwide permits include linear transportation projects, bank stabilization activities, residential development, commercial and industrial developments, aids to navigation, and certain maintenance activities.

The Service previously issued a biological opinion for the reissued and new nationwide permits in February 2012.  The 2012 biological opinion found that the Corps’ program jeopardized endangered and threatened species under the Service’s jurisdiction and resulted in the destruction or adverse modification of critical habitat that had been designated for these species due to a lack of adequate measures to protect such species and critical habitat.  The Service identified a Reasonable and Prudent Alternative (RPA) that would avoid the likelihood of such jeopardy.  The Corps expressed concerns regarding the RPA and requested reinitiation of formal consultation with the Service.    In July 2012, the Corps and the Service reinitiated programmatic consultation because the Corps modified the action and proposed additional changes that collectively may cause effects to listed species and critical habitat not previously considered in the February 2012 biological opinion.

The BiOp explains that the Corps has agreed to incorporate 12 additional protective measures into its Nationwide Permit Program to minimize any adverse effects to ESA listed and proposed species and designated critical habitat under the Service’s jurisdiction.  These protective measures include:

(1) development of information packages for prospective users of nationwide permits to facilitate compliance with Nationwide Permit General Condition 18;

(2) requiring a list of information on the location of the activity, area affected, and a narrative explanation of how the applicant satisfied requirements or conditions of the nationwide permit;

(3) consultation with the Service’s Regional Offices to identify new or modified regional conditions for nationwide permits;

(4) providing the Service with semi-annual reports on Corps Regulatory Permitting activities;

(5) utilization of the Corps’ discretion provided by Nationwide Permit General Condition 23, Mitigation, to require compensatory mitigation for wetland losses of less than 1/10 of an acre;

(6) issuing guidance to the Corps’ districts and divisions in conducting cumulative effects analyses;

(7) issuing guidance to the Corps’ districts to include a Special Condition to Nationwide Permit verification letters to require permittees to report incidents where certain species are injured or killed as a result of the discharge of dredged or fill material into the waters of the United States;

(8) within 30 days after a semi-annual report is provided to the Service’s Regional Office, there will be a mandatory meeting between Corps and Service staff to determine whether additional measures are necessary to address specific activities;

(9) providing training and guidance to ensure accurate data entry into the Regulatory Program’s automated information system;

(10) a rulemaking to modify Nationwide Permits 12, 13, 14, and 36 to require pre-construction notifications for certain proposed activities;

(11) providing the Service with the baseline impervious surface cover as of 2006 for each 10-digit HUC watershed inhabited by listed species and designated critical habitat; and

(12) including in its semi-annual report the amount of actual impervious surface cover that will result from activities authorized by the nationwide permits.

With the addition of these 12 protective measures, the Service concluded in the BiOp that nationwide permits would not jeopardize the continued existence of any threatened or endangered species or result in the destruction or adverse modification of critical habitat.

California Fish and Game Commission Decides to List Tricolored Blackbird on an Emergency Basis

Posted in Listing

Today, in response to a petition to list (pdf) filed by the Center for Biological Diversity (CBD) in October 2014, the California Fish and Game Commission (Commission) extended protection to the tricolored blackbird (agelaius tricolor) on an emergency basis under the California Endangered Species Act.  The Commission previously — in 2005 — denied a petition from CBD to list the species.

While the tricolored backbird is endemic to California, it is distributed through much of the State.  Census data on the species has been collected periodically over the past 20 years.  The data suggests a substantial, recent decline as described in the petition and reported this past summer.  One such report was published in Scientific American by John Platt.  The cause of the recent decline is not well estabished, and it is possible that the drought is playing a role.

The basis for an emergency listing under California Fish and Game Code section 2076.5 is an “emegency posing a significant threat to the continued existence of the species.”  This heightened standard, as compared to the standard listing process under the Act, is intended to empower the Commission to protect species at immediate risk of extinction.  It is infrequently invoked because at the time the Commission must make its decision neither the Commission nor the public has the benefit of a written evaluation of the petition from the Department of Fish and Wildlife.

NMFS Proposes Critical Habitat for the Threatened Arctic Ringed Seal

Posted in Conservation, Critical Habitat, National Marine Fisheries Service

Image courtesy of the National Marine Mammal Laboratory/NOAA

On December 3, 2014, the National Marine Fisheries Service (NMFS) published its proposed rule designating critical habitat for the threatened Arctic Ringed Seal (Phoca hispida hispida).  (79 Fed. Reg. 71,714).  The proposed designation, if finalized, would mark one of the largest critical habitat designations in the Bering, Beaufort, and Chukchi seas, consisting of millions of acres.  The seal, which was designated as a threatened species under the Endangered Species Act (ESA) in December 2012, is the smallest of the northern seals with an average lifespan of 15 to 28 years. (77 Fed. Reg. 76,706).  Females give birth to one pup a year and the seal’s range is strongly associated with the extent of sea ice throughout the Arctic Ocean and into the Beaufort, Bering, and Chukchi seas along the coasts of Canada and Alaska.  Seals depend on sea ice for birthing, molting, and over-wintering habitat, and depend on a large mass of open water for foraging habitat.

Image courtesy of the National Marine Mammal Laboratory/NOAA

In addition to other factors, NMFS lists greenhouse gas emissions, oil and gas exploration, development, and production, shipping and transportation, and commercial fishing as threats to the seal. NOAA notes that, although the precise impact of greenhouse gas emissions upon the seal is unknown, they have the potential to decrease the availability of suitable sea ice habitat.

While the Secretary of Commerce has the authority under the ESA to exclude areas from critical habitat if those areas are nonessential to the survival of the species and if the economic impact of including the area outweighs the benefits of its inclusion, in the proposed rule.  Despite the identified potential economic impacts to oil and gas related activities, dredge mining, navigation dredging, commercial fishing, oil spill prevention and response, and certain military activities, the Secretary and NMFS declined to do so at this stage.  After acknowledging that there is a lack of data regarding activities in the proposed habitat that would be subjected to consultation under section 7 of the ESA, that there is a lack of information regarding any activities or development that is planned in the area, and a lack of information regarding native cultural practices or tribal activities that might be impacted by the proposed designation, NMFS estimated that the potential economic impact of the critical habitat designation is between $1.33 million and $1.86 million in the next ten years.

The proposal is open for comment for 90 days, and NMFS is specifically seeking information on any areas that should be considered for exclusion from designation as none are currently proposed.  Four public hearings on the proposal will be held in Alaska, in Anchorage, Nome, Kotzebue, and Barrow, with the dates and times to be announced at a later date.

High Court Denies Petition by Parties with Reclamation Contracts Seeking to Avoid ESA Consultation

Posted in Court Decisions

On November 17, the U.S. Supreme Court denied the petition for writ of certiorari filed by Glenn Colusa Irrigation District and others seeking to overturn a decision by the United States Court of Appeals for the Ninth Circuit (en banc) holding that the Bureau of Reclamation’s decision to renew water contracts with senior water rights holders is subject to consultation under section 7(a)(2) of the Endangered Species Act.  Our prior post regarding the petition is available here.

E&E reporter Jeremy Jacobs wrote in Greenwire today that the Supreme Court “left in place an appeals court ruling that required the Interior Department to conduct a more extensive review of how California water contracts would affect threatened delta smelt before renewing them.”

Reading the Tea Leaves: U.S. Fish & Wildlife Service Lists, Designates Critical Habitat for Gunnison Sage-Grouse – Is the Greater Sage Grouse Next?

Posted in Critical Habitat, Listing

Image courtesy of the U.S. Fish and Wildlife Service by Gary Kramer

On November 12, 2014, the U.S. Fish & Wildlife Service (Service) listed as “threatened” and designated over 1.4 million acres of critical habitat for Gunnison sage-grouse (Centrocercus minimus), the smaller cousin of the greater sage-grouse (Centrocercus urophasianus).  The Gunnison sage-grouse’s (Gunnison) current range is limited to southwestern Colorado and southeastern Utah.

The regulations came as a blow to the State of Colorado, landowners, and others who have devoted considerable resources to the conservation of the Gunnison Basin population’s sagebrush habitat.  Equally disappointed are members of the environmental community, including the non-profit organization whose litigation prompted the Gunnison listing:  the Service’s “threatened” listing, rather than the proposed “endangered” listing (pdf) paves the way to a special rule under Section 4(d) of the Endangered Species Act (ESA) that would exempt specified activities from the ESA’s Section 9 “take” prohibition.  In a public statement, the Service announced that it plans to publish a special 4(d) rule for public comment that would exempt from the take prohibition a number of ongoing activities, such as ranching and routine agricultural practices.

The 4(d) exemptions may come as cold comfort to Colorado state and local agencies and private landowners who have developed voluntary conservation plans to protect over one-half million acres of Gunnison habitat.  Section 4(d) exemptions do not relieve federal agencies of their Section 7(a)(2) obligations to consult with the Service for any federal agency action (e.g., Natural Resources Conservation Service funding and Bureau of Land Management (BLM) lease agreements) that may affect the species or its designated critical habitat.  However, landowners who have enrolled their property in one of the 40 current or pending Candidate Conservation Agreements with Assurances for Gunnison Sage-grouse will not be required to provide additional conservation measures or additional land, water, or resource restrictions – beyond those voluntarily agreed to – to avoid future take of Gunnison or to protect the species’ habitat on enrolled property.

The Service’s “threatened” listing of Gunnison may be an attempt to split the baby:  depending on how broadly the Service defines the 4(d) exemptions, the State of Colorado, local agencies, and private landowners, on one hand, will see federal regulatory overreach and environmental organizations, on the other hand, are likely to challenge the exemption as swallowing the rule.  As reported in Greenwire (Nov. 12, 2014), threats of litigation from both sides have already emerged.

The Service is trying to head-off predictions about future greater sage-grouse regulation.  In 2010, the Service found listing the range-wide greater sage-grouse under the ESA “warranted, but precluded” and placed the species on the “candidate” list (pdf).  However, in the Gunnison listing Frequently Asked Questions, the Service states, “The decision on Gunnison sage-grouse in no way predetermines a decision on the greater sage-grouse.  . . . Because the [Gunnison’s] range is much smaller, and its smaller populations are more vulnerable to extirpation, the threats to [Gunnison] occur throughout a larger portion of the range and are more imminent.”

Image courtesy of the U.S. Fish and Wildlife Service by Stephen Ting

The California-Nevada greater sage-grouse distinct population segment (Bi-state DPS) is currently proposed for listing as “threatened”; the Service has also proposed a special 4(d) rule and designation of critical habitat for the species.  First proposed on October 28, 2013, the Bi-state DPS listing determination is still under review following two comment-period extensions and one public hearing.  The Service plans to publish its final determination for the Bi-state DPS no later than April 28, 2015. [8/5/14 Fed Red pdf ]