House Passes ESA Reform Package

On July 29, 2014, the U.S. House of Representatives passed Endangered Species Act (ESA) reform legislation introduced by members of the House Natural Resources Committee. As previously reported, the legislation consists of four bills seeking to amend the ESA by, among other things, requiring federal agencies to release to the public all data used to make its listing decisions, disclosing the amount of federal funds used in ESA-related lawsuits, and requiring that the “best scientific and commercial data available” include information provided by state, tribal, and county governments. The bill now heads to the Senate for approval. Commentators have noted, however, that passage by the Senate may be fruitless since the White House has issued a veto threat on the bill, claiming that it is presents “yet another administrative reporting requirement.” It has been over 40 years since the ESA was enacted and over 25 years since the most recent Congressional amendments to the statute.

EPA Not Required to Consult on Air Quality Regulation Regarding Four Corners Power Plant

On July 23, 2014, the United States Court of Appeals for the Tenth Circuit held that the U.S. Environmental Protection Agency (EPA) was not required to consult with the U.S. Fish and Wildlife Service regarding potential endangered species impacts of air quality regulations designed to reduce visual impacts of the Four Corners Power Plant on the Grand Canyon and other national parks.  WildEarth Guardians v. EPA, 2014 U.S.App.LEXIS 13968.  The court concluded that the EPA decision not to regulate air pollutants with potential to impact endangered fish was not an “action” subject to the consultation requirements of section 7 of the Endangered Species Act (ESA).  The decision suggests that federal agencies may avoid ESA consultation obligations by restricting the scope of federal agency actions.

EPA adopted a federal Clean Air Act implementation plan for the power plant in order to reduce haze in the Grand Canyon, Mesa Verde and Arches National Parks.  The EPA plan regulated oxides of nitrogen and particulate matter – two pollutants contributing to haze in the national parks.  EPA elected not to require the power plant to further reduce emissions of mercury and selenium.  Plaintiffs alleged that mercury and selenium emissions from the plant were having an adverse impact on endangered fish in a river close to the plant.  Plaintiffs claimed that EPA had discretion to impose additional restrictions on mercury and selenium emissions in the Clean Air Act implementation plan.

Relying on National Environmental Policy Act and ESA precedent that federal agency inaction does not constitute “action”, the court reasoned that the ESA consultation obligation “cannot be invoked by trying to piggyback nonaction on an agency action by claiming that the nonaction is really part of a broader action.”  The court concluded that the EPA’s consultation obligation was bounded by EPA’s limits on the scope of the Clear Air Act plan to the regulation of pollutants causing haze in the national parks.  “[T]he possibility that the EPA would have discretion in some other regulatory proceeding to directly regulate mercury and selenium did not impose a duty to consult under the ESA.” 

NMFS Releases Final Recovery Plan for Central Valley Salmonids

The National Marine Fisheries Service (NMFS) has released its final recovery plan for Central Valley spring-run Chinook salmon, Sacramento River winter-run Chinook salmon, and Central Valley steelhead.  The website for the recovery plan is here.  Along with the recovery plan, NMFS released a number of supporting documents on the website.  Sacramento River winter-run Chinook salmon is listed as endangered under the Endangered Species Act (ESA), and Central Valley spring-run Chinook salmon and Central Valley steelhead are listed as threatened under the ESA.

At the same time that NMFS released its recovery plan, the California Department of Fish and Wildlife released its Ecosystem Restoration Program Conservation Strategy.  The two agencies issued a joint press release regarding the Recovery Plan and Conservation Strategy available here.

U.S. Fish and Wildlife Service Proposes Credit Program for At-Risk Species

The U.S. Fish and Wildlife Service (Service) recently announced a proposed policy establishing credits for voluntary prelisting conservation actions for imperiled species. The policy is intended to establish an additional measure for encouraging and awarding voluntary actions to protect species that may be listed as endangered or threatened under the Endangered Species Act (ESA).

The new policy would apply in two possible situations. For non-federal actions that may harm listed species and require a take permit under section 10 of the ESA, the policy would credit actions taken prior to listing and apply those credits towards mitigation to offset impacts that would occur after the species is listed. For federal agencies, credits from prelisting conservation actions would be used to offset adverse effects of the agency’s proposed action.

To be eligible for credits, conservation actions must be part of a state-administered program for conservation of the species. The policy is intended to engage states in designing and implementing programs to encourage voluntary prelisting conservation actions. All actions to be credited must occur before the species is listed under the ESA, and they cannot be required pursuant to any federal, state, or local regulation.

According to the Service, the policy enables any harm to a listed species to be offset by benefits provided prior to the listing of the species. Additionally, prelisting conservation actions could be combined with additional mitigation to offset any harm to the species. The Service has yet to define the metrics for measuring either the harm or benefit to the species.

States may choose to work with the Service to administer the prelisting conservation programs. Under the policy, the Service will assist states as needed in developing conservation plans, and in overseeing implementation and operation of the voluntary actions.
 

ESA Section 9 Case Dismissed Because of Allegations re Take

Earlier this month, the United States District Court for the Northern District of California dismissed a lawsuit brought under section 9 of the Endangered Species Act (ESA) because, instead of attacking a specific project or approval, the complaint and notice of intent generally attacked all land use permit decisions by the local agency.  Under section 9 of the ESA, it is illegal for any private or public entity to "take" an endangered species. 16 U.S.C. 1538(a)(1)(B).  The term "take" has been broadly defined to include "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).  The species at issue was the endangered Sonoma County distinct population segment of the California tiger salamander ("Salamander").  The complaint generally alleged that the County of Sonoma had engaged in "take" by issuing permits within 1.3 miles of a known Salamander breeding site, a known occurrence, and/or within critical habitat corridors.  Without a specific project or approval to review, the court found that the "action would devolve into a speculative exercise," and therefore the project was simply "not yet ripe for adjudication."  California River Watch v. County of Sonoma, No. C 14-00217 (N.D. Cal. July 10, 2014).  In addition to finding that the matter was not ripe, the court also found that dismissal was appropriate because the 60-day notice of intent failed to comply with the ESA, as it failed to provide a specific geographic area, project or approval, and therefore "failed to provide sufficient information for the County to identify or attempt to abate the alleged violation."

      

District Court Denies Motion to Enjoin Delta Water Transfers

Last Friday, the U.S. District Court for the Eastern District of California denied (pdf) a motion brought by environmental groups to enjoin a water transfer project in the Sacramento-San Joaquin River Delta (Delta). Plaintiffs brought suit against the U.S. Bureau of Reclamation (Bureau), arguing the Bureau violated the National Environmental Policy Act (NEPA) by approving the San Luis & Delta-Mendota Water Authority (SLDMWA) Water Transfer Project, which would allow water rights holders or contractors north of the Delta to sell water to members of SLDMWA, whose members then would make use of the water in areas that lie south of the Delta. The Bureau’s role would be to review any proposed transfers and facilitate those transfers though the Delta. The Bureau prepared an Environmental Assessment (EA) and issued a Finding of No Significant Impact (FONSI) pursuant to NEPA in April 2014, concluding that the transfer project was covered by the 2008 delta smelt biological opinion issued under the Endangered Species Act and that the timing of the transfers (July-September) was such that delta smelt would not be present in the Delta, and therefore would not be adversely impacted.

Plaintiffs sought to enjoin the transfers, arguing that the Bureau’s conclusion that delta smelt would not be present in the Delta was arbitrary and capricious and that the Bureau failed to consider recent information regarding Delta outflow and relaxed water quality standards. The court denied plaintiffs’ motion for a preliminary injunction, concluding plaintiffs were not likely to succeed on the merits of their NEPA claims because, according to the court, their dispute "boils down to a disagreement with an expert agency as to the likelihood that the 2014 Transfer Project will draw smelt into areas of the Delta where they will be subject to dangerously high temperatures.” The court determined it “must defer to the agency on such matters."
 

Two Final Rules Designate One of Largest Critical Habitat Areas in History

On Wednesday, two final rules were released designating critical habitat for the loggerhead sea turtle (Caretta caretta), a species listed as endangered under the Endangered Species Act (ESA). Together, the rules represent one of the largest areas of critical habitat ever designated under the ESA. The first rule, promulgated by the National Marine Fisheries Service (NMFS), designates over 300,000 square miles of habitat in the northwest Atlantic Ocean. The second rule, promulgated by the U.S. Fish and Wildlife Service (FWS), designates 685 miles of land along the coasts of the Atlantic Ocean and Gulf of Mexico. The species uses the coastal land for nesting.

The loggerhead sea turtle has been listed under the ESA since 1978, but, in 2011, the species was reclassified under the act into distinct population segments, thereby triggering a requirement that NMFS and FWS promulgate critical habitat rules. Wednesday's rules came as the result of a lawsuit filed by Oceana, the Center for Biological Diversity, and the Turtle Island Restoration Network, which culminated in the agencies' promise to promulgate critical habitat designations.

A spokesperson for NMFS stated that protecting loggerhead sea turtles and their habitat is a key part of ensuring "healthy and resilient oceans for generations to come." Another spokesperson for FWS stated that preserving the species would help preserve "a way of life for millions of Americans.”

U.S. Fish and Wildlife Service Regional Director Requests Withdrawal of Proposed Rule to List the Wolverine as Threatened

A Regional Director for the U.S. Fish and Wildlife Service (Service) has directed federal biologists to withdraw their proposed rule to list the wolverine (Gulo gulo luscus) as threatened under the Endangered Species Act. As we reported here, the Service proposed listing the wolverine in February 2013, citing habitat loss due to climate change as the primary threat to the species. Officials in Wyoming, Idaho, and Montana objected to the proposed listing, arguing climate change conclusions are premature. In response to these objections, the Service asked a panel of nine biologists to review the scientific information supporting the proposed listing. In April 2014, the scientists issued a report that concluded wolverines would continue to expand their range in the short term, but climate change would significantly affect their habitat by the end of the century. Based on this report, Terry Rabot, the Assistant Regional Director for the Service’s Pacific Region, recommended that the Service move ahead with the threatened designation. However, in a memorandum dated May 30, 2014, Noreen Walsh, the director of the Service’s Rocky Mountain Region, ordered the recommendation to be reversed. The memorandum, obtained by the Center for Biological Diversity, cites “concern about the degree to which we can reliably predict impacts to wolverine populations from climate change” and directs the Service to “prepare a withdrawal of the proposed rule.” The Director of the Service is expected to make a final decision regarding the proposed rule in early August.

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U.S. Fish and Wildlife Service Downgrades Wood Stork From Endangered to Threatened

The U.S. Fish and Wildlife Service (Service) issued a final rule (pdf) reclassifying the U.S. breeding population of the wood stork (Mycteria americana) from endangered to threatened.

According to the Service, when the wood stork was listed as endangered in 1984, the population was decreasing at a rate of five percent per year. The Service now reports that the U.S. breeding population has increased its number of nesting pairs, and has expanded its breeding range.

Wood storks use a variety of freshwater and estuarine wetlands for nesting, feeding, and roosting. The Service’s downlisting acknowledges the positive impact that collaborative conservation efforts for the species’ habitat have had on the status of the breeding population. For example, the Wetlands Reserve Program has restored more than 200,000 acres of wetlands in Florida and more than 115,000 acres in Alabama, Georgia and South Carolina.

Fifth Circuit Rejects Strict Liability Standard and Reverses Trial Court Decision Imposing Endangered Species Act Section 9 Liability on State Officials for Whooping Crane Deaths

In The Aransas Project v. Shaw, the Fifth Circuit reversed a lower court’s finding that the Texas Commission on Environmental Quality violated section 9 of the Endangered Species Act through its combined actions and inactions with respect to management of water diversions in the San Antonio and Guadalupe River systems. We reported on the lower court decision here. Provided the decision stands, it suggests that the standard for liability under section 9 is not a strict liability standard, but instead requires courts to assess whether take was reasonably foreseeable drawing on common law tort principles.

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