On Tuesday, April 14, 2015, the U.S. Fish and Wildlife Service (Service) reopened the public comment period on its proposed rule (pdf) designating critical habitat for the Zuni bluehead sucker (Catostomus discobolus), a fish species that lives in certain water bodies in New Mexico. In January 2013, the Service proposed to designate 291.3 miles of critical habitat for the species. Due to information received during the public comment period, the Service now proposes to reduce the amount of critical habitat designated for the species to 141.9 miles, of which approximately 70% is currently occupied by the species.
Previously, the Service had proposed critical habitat for the Zuni bluehead sucker in three distinct units – the San Juan River Unit, the Zuni River Unit, and the Kinlichee Creek Unit. However, the Service has determined that, according to the best scientific data available, Zuni bluehead sucker does not occur in the San Juan River Unit, and the Zuni River Unit does not meet the definition of critical habitat.
Pursuant to Section 4(b)(2) of the Endangered Species Act, the Service examined the possible economic impacts and “any other relevant impact” that designating critical habitat may have. Specifically, the Service looked at the possible impacts of designating critical habitat on land owned by the Zuni Pueblo and the Navajo Nation. The Service is considering excluding tribal land from designation in part because the Navajo Nation has a fisheries management plan – which is currently being amended to prioritize native fishes in stream fisheries management – and because the Zuni Pueblo are working with the Service to develop a management plan for their lands. The Service also stated that it is considering excluding tribal land “based on the working relationship” it has with the Tribes and the Tribes’ “sovereign abilities to manage natural resources in accordance with their own policies, customs, and laws.”
The Service also released a draft economic analysis and a draft environmental assessment along with the proposed rule. Comments will be accepted until May 14, 2015.
On April 3, 2015, a federal district court in California put the brakes on a proposed logging project, invalidating a habitat conservation plan and incidental take permit issued by the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) under section 10 of the Endangered Species Act (ESA), as well as a biological opinion and incidental take statement issued by NMFS under section 7. Klamath-Siskiyou Wildlands Ctr. v. Nat’l Oceanic and Atmospheric Administration, Case No. 13-cv-03717 (N.D. Cal. Apr. 3, 2015) (pdf).
A project can avoid the general “take” prohibition in section 9 of the ESA by: (i) complying with the terms of a biological opinion and incidental take statement under section 7 of the ESA, or (ii) complying with the terms of a habitat conservation plan and incidental take permit under section 10 of the ESA. Section 10 of the ESA requires that a habitat conservation plan “minimize and mitigate the impacts of the taking” to the maximum extent practicable, and that the taking will “not appreciably reduce the likelihood of the survival and recovery of the species in the wild.”
The project at issue in this case was a timber harvest operation in known habitat of the threatened Northern spotted owl (Strix occidentalis caurina) in northern California. The logging project also had the potential to impact threatened Southern Oregon/Northern California Coast coho salmon (Oncorhynchus kisutch) by increasing the introduction of sediment into nearby streams and rivers. In order to proceed with the project, the project proponent submitted a habitat conservation plan (HCP) and obtained an incidental take permit (ITP) from FWS and NMFS to cover take of the spotted owl and coho salmon. The project proponent also obtained biological opinions and incidental take statements from FWS and NMFS with respect to the HCP and ITP.
Under the HCP, the project proponent would harvest timber in 58 owl circles (each owl circle measuring approximately 3,400 acres), while preserving limited habitat in 24 owl circles. Only limited habitat would be conserved by the project proponent because the project proponent owned only portions of the land within the 24 owl circles – sometimes as few as 62 acres; the U.S. Forest Service (Forest Service) owned the bulk of the remaining land. In approving the HCP and issuing the ITP, FWS found, using a weighted average, that the proposed conservation would more than offset the incidental take because project logging would primarily occur in owl circles with low conservation value, whereas conservation would primarily occur in owl circles with high conservation value. In determining the conservation score for an owl circle, FWS considered the entire owl circle, not just the portion owned by the project proponent. A number of environmental groups subsequently challenged the analysis by FWS and NMFS.
With respect to FWS, the court found that by basing its conclusion on the conservation value of the entire owl circle, even though the project proponent controlled only minor portions of the land, the project proponent was “allowed to piggyback off of the conservation work of a non-applicant neighbor” – in this case the Forest Service. The court also found that the HCP failed to comply with the minimization and mitigation requirements in section 10 because: (i) FWS relied on a mitigation measure that did not obligate the project proponent to actually implement practices that “will” develop and maintain dispersal habitat, and (ii) the mitigation measure failed to identify any objective criteria by which to measure compliance.
With respect to NMFS, the court found that the 50-year biological opinion issued by NMFS, which was accompanied by an incidental take statement with a duration of 50 years, failed to comply with section 7 of the ESA because it failed to analyze the short-term impacts of the project on the coho salmon, which has a three-year life cycle. The court also found that NMFS’s issuance of the ITP was arbitrary and capricious “because the no-jeopardy finding required by ESA § 7 is identical to the survival finding required under §10[.]”
On April 2, 2015, the U.S. Fish and Wildlife Service (Service) issued a final rule (pdf) listing the northern long-eared bat (Myotis septentrionalis) as threatened under the Endangered Species Act (ESA). The Service determined that there are several factors affecting the species, but none as severe and immediate to its persistence as the disease known as white-nose syndrome (WNS). The Service found that WNS is the predominant threat to the northern long-eared bat and, in the absence of WNS, the species would not be experiencing the dramatic decline that it has since WNS emerged.
The rule provides that, in areas not yet affected by WNS, all incidental take resulting from any otherwise lawful activity will be excepted from prohibition. In areas known to be affected by WNS, all incidental take prohibitions apply, except that take attributable to forest management practices, maintenance and limited expansion of transportation and utility rights-of-way, prairie habitat management, and limited tree removal projects are excepted from the take prohibition.
As we reported previously, the Service published a proposed rule to create a species-specific rule for the northern long-eared bat under authority of section 4(d) of the ESA in January 2015. The final rule establishes an interim rule under section 4(d) providing measures that are necessary and advisable to provide for the conservation of the species. These measures prohibit purposeful take of northern long-eared bats throughout the species’ range, except in instances of removal of the species from human structures and authorized capture and handling of the species by individuals permitted to conduct such activities for other bats. According to the Service, the interim 4(d) rule provides flexibility to landowners, land managers, government agencies, and others as they conduct activities in northern long-eared bat habitat.
The Center for Biological Diversity (CBD) filed suit against the Service to set aside the final rule on the same day the rule was published. Citing a 2013 Service recommendation that the species be listed as endangered, CBD claims that the Service bowed to industry pressure by listing the species as threatened.
On March 27, 2015, just days before the Service’s final listing decision was issued, the Senate approved an amendment for inclusion in a budget resolution (Amendment 422) related to the northern long-eared bat. U.S. Senator John Thune (R-S.D.) stated: “This amendment puts the Senate on record opposing the [Service]’s proposal to list the long-eared bat.” Prior to the Service’s listing decision, the Defenders of Wildlife claimed that the amendment could block, perhaps permanently, any decision to list the bat.
The northern long-eared bat listing becomes effective May 4, 2015. Because the Service received a significant number of comments in response to the proposed rule issued on January 15, 2015, the Service will accept further input on the final rule through July 1, 2015.
After a relatively quiet start to the year, the National Marine Fisheries Service (NMFS) and U.S. Fish & Wildlife Service (FWS) have issued findings and rules regarding the proposed listings of four separate species under the Endangered Species Act (ESA) over the last two days. NMFS issued a 90-day finding on a petition to list the Gulf of Mexico population of Bryde’s whale (Balaenoptera edeni) on April 6, 2015. FWS issued a 12-month finding on a petition to list the Humboldt marten (Martes caurina humboldtensis) and proposed to list two species of crayfish – the Big Sandy crayfish (Cambarus callainus) and Guyandotte River crayfish (Cambarus veteranus) – on April 7, 2015.
April 6, 2015 – NMFS announced its finding (pdf) that the listing of the Gulf of Mexico population of Bryde’s whale may be warranted based on information contained in a petition from the Natural Resources Defense Council (NRDC). The petition asks NMFS to list the whale population in the Gulf of Mexico as an endangered distinct population segment (DPS). Bryde’s whale is a baleen whale occurring in tropical waters throughout the Atlantic, Pacific and Indian oceans. The population in the Gulf of Mexico appears to be highly limited to the coastal areas off of the Florida panhandle, and none of these whales have been reported outside the U.S. exclusive economic zone (EEZ), though NMFS acknowledges that satellite tagging will be required to confirm this assertion. NRDC’s petition cites several 2014 studies that found the Gulf of Mexico population to be genetically and behaviorally distinct from other Bryde’s whale populations globally. Based on this information, NMFS found that the Gulf of Mexico population may be sufficiently discrete and significant to qualify as a DPS. NMFS further found that the population is at risk from ship strikes, acoustic effects from commercial shipping traffic, and the use of airguns during oil exploration activities. NMFS announced that it will commence a status review for the species, and is accepting comments until June 5, 2015.
April 7, 2015 – FWS announced that it plans to list two species of crayfish as endangered and to designate critical habitat for each species. The proposed rule (pdf) finds that the Big Sandy crayfish, native to freshwaters in Kentucky, Virginia and West Virginia, is a distinct subspecies of the Guyandotte River crayfish, which is native to freshwaters of West Virginia. The proposed rule follows a settlement agreement from a 2012 lawsuit against FWS by the Center for Biological Diversity for failure to issue a 12-month finding on the Big Sandy crayfish within the statutorily prescribed time period. Following a status review for both species, FWS found that neither species occurs outside of the Big Sandy River basin and the Upper Guyandotte River basin, respectively, and that both have suffered a decline in distribution and population since they were first discovered in 1900. Both the Upper Guyandotte and Big Sandy River basins have been impacted by widespread sedimentation and erosion linked to coal mining, commercial timber harvesting, commercial and residential development, roads, and sewage discharges, which substantially decrease the available habitat for crayfish and other species native to both river systems. The proposed rule finds that the impact of habitat degradation is amplified for both species due to their small and isolated populations. FWS has not proposed critical habitat at this time, citing a lack of information regarding the species’ current habitat as impeding its ability to determine an appropriate extent of critical habitat. FWS is seeking comments on the proposed rule until June 8, 2015.
April 7, 2015 – FWS announced its finding (pdf) that listing of the Pacific marten subspecies, the Humboldt marten, is not warranted either as a subspecies or as a DPS at this time. Based on comments received on its initial finding that listing of the Humboldt marten may be warranted, FWS concluded that the Humboldt marten, which is limited to northern California, is genetically linked with the coastal Oregon population of Pacific marten (Martes caurina caurina). Together, these two populations form a DPS that is both discrete and significant; however, FWS did not find that any of the identified threats to this DPS rose to a level sufficient to warrant listing as an endangered or threatened species. Rather, based on conservation measures at the state and federal level aimed at preserving marten habitat, and ongoing voluntary conservation efforts, FWS found that the coastal DPS of Pacific marten is not currently at risk of either extinction or becoming endangered throughout all or a significant portion of their range..
In a landmark executive order (pdf) issued on April 1, 2015, Governor Jerry Brown mandated a 25 percent water cutback for urban residents to address the state’s historic drought. Gov. Brown directed the State Water Resources Control Board to “impose restrictions to achieve a statewide 25% reduction in potable urban water usage … as compared to the amount used in 2013.” Local agencies may decide how to get customers to reduce consumption, with higher rates being a likely option. The state intends to impose penalties on local agencies that fail to comply with the water restriction goals.
Critics assert that the water restrictions should not target urban users when the agricultural sector consumes 80 percent of water for human use. However, state officials in charge of water, agriculture, fish and game, and other resources insist the seemingly unbalanced cutbacks are not intended to penalize residents while insulating the agricultural sector. According to Chuck Bonham, director of the California Department of Fish and Wildlife: “Drought is not an issue over who is impacted the most, but rather drought is impacting all of us. It’s not about people or the environment, fish or farms. The task in front of us is how we make it through together.” Similarly, in response to questions regarding the tension between water consumption by urban and agricultural water users, California Department of Food and Agriculture Secretary Karen Ross said the restrictions are a “balancing act.”
Furthermore, according to Mark Cowin, director of the California Department of Water Resources (DWR), it is not accurate to say there are no agricultural restrictions. In fact, water deliveries to farms have been dramatically reduced. The federal Central Valley Project has reduced its deliveries to zero and the State Water Project has cut its allocations to 20 percent.
The executive order also calls for DWR to consider installing rock barriers in the Sacramento-San Joaquin River Delta (Delta) in order to prevent salt water from entering the rivers due to low flows. Environmentalists oppose the action because it may block fish passage through the Delta, including the threatened delta smelt.
On March 26, 2015, House of Representatives Republican Cynthia Lummis (R-WY) introduced a bill (H.R. 1667) to amend Section 4(b) of the Endangered Species Act (ESA) to require the Secretary of Interior to “make publicly available on the Internet the best scientific and commercial data available that are the basis for reach regulation, including each proposed regulation” for listing decisions regarding endangered or threatened status for wildlife and plant species. H.R. 1667 does not require the Secretary of the Interior to post information that is prohibited from disclosure under state law for the protection of personal information.
H.R. 1667 is identical to Senate Bill 292, introduced by Senator John Cornyn (R-TX) earlier this year. Although H.R. 1667 has been criticized by some as aimed at hindering the federal resource agencies from implementing the ESA, the proposed amendment would increase transparency in agency rulemaking. Existing law does not require studies and other data that are the basis for proposed listing decisions to be made publicly available when a regulation is proposed. The resource agencies are also not required to post a reference list together with the proposed regulation in the Federal Register, or to provide complete citations to studies referenced in proposed regulations. As a result, interested parties are frequently unable to obtain key documentation until after the opportunity to comment on a proposed regulation has already passed. H.R. 1667 would help the public gain timely access to this information.
On March 27, 2015, the National Marine Fisheries Service (NMFS) accepted two petitions asking NMFS to list the Porbeagle shark (Lamna nasus) as threatened or endangered under the Endangered Species Act either throughout the entirety of its global range, or as distinct population segments (DPS) occurring in the Northwest Atlantic, the Northeast Atlantic, and the Mediterranean. (80 Fed. Reg. 16,356 [pdf].) The petitions, filed separately by Wild Earth Guardians and the Humane Society of the United States, were originally rejected as not warranted by NMFS in July 2010. Both petitioners then filed complaints in the U.S. District Court for the District of Columbia, challenging NMFS’ denial of the petitions in August 2011.
On November 14, 2014, the U.S. District Court for the District of Columbia released a memorandum decision (Case 1:11-cv-01414 –BJR Humane Society of the United States v. Blank et al. [pdf]) reversing NMFS’ denial of the petitions and ordering NMFS to prepare a new 90-day finding on the petitions. The court’s ruling became final on December 12, 2014. In accordance with the court’s direction, NFMS undertook a new 90-day review of each of the petitions, using information on Porbeagle sharks globally that became available in the time between the 2010 petitions and the court’s 2014 ruling. NFMS also consulted with fisheries experts within the agency. While the Wild Earth Guardians petition requests that the Porbeagle shark be listed throughout its range or in three separate DPSs, NMFS’ new 90-day finding focuses on only the Northwest and Northeast Atlantic populations. NMFS relied on a report prepared by the Committee on the Status of Endangered Wildlife in Canada in 2014 which concludes that the species appears to be in decline in the Northwest Atlantic due to an ongoing threat from bycatch. The new 90-day finding uses this information to conclude that the actions requested by the petitioners may be warranted and announces the initiation of a species status review by NMFS.
NMFS requests additional information on the historical and current distribution of the shark, its abundance, life history and habitat requirements, genetics and population structure, information on threats to the species, and any ongoing efforts to restore habitat or to protect the species. The comment period on the 90-day finding and status review will be open until May 12, 2015. NMFS will complete its status review and publish its findings on or before December 12, 2015.
In a decision issued earlier this week, a U.S. District Court rejected the U.S. Fish and Wildlife Service’s (Service) interpretation of the Endangered Species Act (ESA), finding that its interpretation of the critical habitat designation requirement constituted an impermissible construction of the statute. Ctr. for Biological Diversity v. Kelly, Case No. 1:13-cv-00427 (D. Idaho Mar. 23, 2015) (pdf). Specifically, the court found that, contrary to the Service’s longstanding interpretation, the ESA requires critical habitat to be designated in a manner that would facilitate the recovery of a species.
The challenge to the Service’s interpretation of the ESA arose out of the Service’s 2012 final rule designating critical habitat for the endangered Southern Selkirk Mountains population of woodland caribou (Rangifer tarandus caribou). In 2011, the Service published a proposed rule that would designate approximately 375,562 acres as critical habitat for the caribou. In August 2012, however, the Service issued a draft final rule proposing to reduce the critical habitat designation by more than one-third, to approximately 227,100 acres. In November 2012, the Service published a final rule designating only 30,010 acres as critical habitat for the caribou. Shortly thereafter, a number of environmental organizations challenged the Service’s critical habitat designation, alleging that the designation violated the ESA because: (1) the Service failed to explain how the designation would provide for the recovery of the caribou; and (2) the Service was required to provide additional public notice and comment because the final rule was a substantial deviation from the proposed rule.
With respect to the issue of recovery, the court found that the Service’s interpretation “that its critical habitat designation need not ‘prove’ that it will ‘ensure’ the recovery of the species is contrary to the plain language and purpose of the ESA.” The court explained that “the whole point behind designating critical habitat is to identify those physical and biological features of the occupied area and/or those unoccupied areas that are essential to the conservation of a species with the aim of arriving at the point where the species is recovered, i.e., no longer in need of the measures provided for in the ESA.” Accordingly, the court found that the Service’s interpretation was contrary to law, and therefore not entitled to Chevron deference.
On the issue of additional public notice and comment, the court again sided with the plaintiffs, finding that such measures were required because the final was the product of “a fundamental and dramatic change in reasoning based on materials not previously discussed or cited in the Proposed Rule.”
On Tuesday, March 24, 2015, the National Marine Fisheries Service (NMFS) issued a 12-month finding (pdf) concluding that listing a distinct population segment (DPS) of the harbor porpoise (Phocoena phocoena) in the Baltic Sea as endangered or threatened under the Endangered Species Act (ESA) is not warranted. NMFS found that while a discrete subpopulation of harbor porpoises exists in the Baltic region, the subpopulation is not ecologically and biologically significant to the species.
In order to determine that a DPS exists, NMFS must find: (i) that a subpopulation is discrete either because it is markedly separated from other population of the same taxon as a consequences of physical, physiological, ecological, or behavioral factors, or because it is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanism exist that are significant; and (ii) that the subpopulation is biologically and ecologically significant to the species. The significance consideration may take into account (1) persistence of the discrete subpopulation in an ecological setting that is unusual or unique for the taxon; (2) evidence that loss of the discrete subpopulation would result in a significant gap in the range of the taxon; (3) evidence that the discrete subpopulation represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range; or (4) evidence that the discrete subpopulation differs markedly from other populations of the species in its genetic characteristics.
NMFS found that a discrete subpopulation of harbor porpoises exists in the Baltic region based on differences in genetics, skulls, contaminants, and teeth between Baltic harbor porpoises and other populations of the species. However, NMFS found that the discrete Baltic subpopulation was not significant under any of the possible significance factors. This finding stemmed from the fact that Baltic harbor porpoise prefers shallow coastal areas (the same habitat preferred by the general species) and that the Baltic subpopulation comprises only a small geographic area in the total range of the species. Additionally, NMFS found no evidence that the Baltic subpopulation either represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range, or differs markedly from other populations in its genetic characteristics.
The 12-month finding was issued in response to a 2013 petition filed by WildEarth Guardians, which requested the listing of 81 marine species and subpopulations. NMFS has since found that the petitioned actions may be warranted for 24 species and 3 subpopulations. The findings issued Tuesday addressed only the Baltic Sea harbor porpoise. NMFS is still in the process of evaluating many of the other species for whom listing may be warranted.
In a three-page memorandum decision, the United States Court of Appeals for the Ninth Circuit dismissed Wild Equity and other groups’ appeal from a lower court decision, dismissing as moot a lawsuit alleging that the City and County of San Francisco (“San Francisco”) violated the Endangered Species Act’s take prohibition as a consequence of its continuing operations of the Sharp Park Golf Course. (2015 U.S. App. LEXIS 4854 [pdf].)
The lower court dismissed the action on the grounds that the Fish and Wildlife Service issued a biological opinion and incidental take statement covering golf course operations. Wild Equity appealed, arguing that the incidental take statement does not become effective until the consulting agency – here, the Army Corps of Engineers – takes action by issuing the Clean Water Act (“CWA”) section 404 permit sought by San Francisco. While the appeal was pending, the Corps issued a CWA section 404 permit to San Francisco. Nonetheless, Wild Equity pursued the appeal, arguing in the alternative that the case falls within an exception to the mootness doctrine as a situation capable of repetition, yet evading review.
In a unanimous decision, the Ninth Circuit panel rejected Wild Equity’s contentions concluding that the case did not meet either of the two prongs of the Supreme Court’s capable of repetition exception. The court went on to state: “The issuance of the ITS and CWA permit have [ ] fundamentally changed the legal landscape within which the parties are operating, reducing the likelihood that this issue will arise again between these particular parties.”
Nossaman served as outside counsel to the City and County of San Francisco in this matter.