As recently reported by the Center for Biological Diversity, a rider has been proposed for an appropriations bill that would provide $1.5 billion to the U.S. Fish and Wildlife Service in 2017. The controversial rider would remove current Endangered Species Act protections for gray wolf populations in Michigan, Wisconsin, Minnesota, and Wyoming. The appropriations bill, which is currently making its way through the House of Representatives, was before the House Subcommittee on Interior, Environment, and Related Agencies on May 25, 2016.
On May, 17, 2016, the U.S. Senate Committee on Energy and Natural Resources’ Subcommittee on Water and Energy held hearings on a number of pending bills, including S. 2533, sponsored by Senator Diane Feinstein (D-CA). The bill, titled “California Long-Term Provisions for Water Supply and Short-Term Provisions for Emergency Drought Relief Act,” is aimed at providing short-term water supplies to drought-stricken California and providing for long-term investments in drought resiliency throughout the Western United States.
Among its many provisions, S. 2533 invests $1.3 billion in defined long-term projects while making targeted, temporary changes to water operations that last for the length of the drought or two years, whichever is longer. Those temporary changes include potential increased pumping in the Sacramento-San Joaquin Delta, which some say may adversely affect the fish species listed under the Endangered Species Act that occupy that region. The bill would require real-time monitoring of fish species relative to Delta conditions to identify: (1) opportunities to increase water pumping without violating environmental or endangered species laws or biological opinions; and (2) circumstances where it is necessary to decrease water pumping to protect natural origin steelhead, spring run Chinook salmon, winter run Chinook salmon, or delta smelt. The bill would also implement a number of temporary measures designed to maximize delivery of State Water Project or Central Valley Project water, while mitigating impacts to listed fish species.
Senator Feinstein stated that she hopes S. 2533 can pass the Senate, after which they can conference with the House to reconcile the bill with a House Republican proposal passed last year.
After filing an appeal with the U.S. Court of Appeals for the Fifth Circuit less than two weeks prior, on May 10, 2016, the U.S. Fish and Wildlife Service (Service) filed an unopposed motion to voluntarily dismiss its appeal of the district court decision that vacated the listing of the lesser prairie-chicken (Tympanuchus pallidicinctus) as threatened under the Endangered Species Act (ESA). The U.S. District Court for the Western District of Texas, Midland Division, identified a number of errors in the Service’s evaluation of the species under the criteria laid out in the “Policy for Evaluation of Conservation Efforts When Making Listing Decisions” (PECE Policy) for determining whether species conservation will be implemented and effective. A thorough discussion of the district court’s rationale is available here. After the district court declined the Service’s request to amend its judgment and remand the rule without vacatur, the Service filed the recent notice of appeal.
While the Service’s ultimate decision to forego an appeal may appear unexpected, the Service has reported its intent to conduct a status review of the species, which could lead to issuance of a new proposed rule to list the lesser prairie-chicken under the ESA. Current voluntary conservation efforts by states, federal agencies, and stakeholder industries are expected to continue, including the Western Association of Wildlife Agencies (WAFWA) Range-wide Conservation Plan. The listing status of the lesser-prairie chicken directly impacts a number of industries across the species’ five-state range—Texas, Oklahoma, Colorado, Kansas, and New Mexico—and will likely remain a controversial topic in coming years.
On May 11, 2016, the U.S. Fish and Wildlife Service (Service) issued a final rule designating approximately 65,038 acres and 20.3 river miles of critical habitat for the Oregon spotted frog (Rana pretiosa). The acres and river miles comprising the critical habitat designation are located in Whatcom, Skagit, Thurston, Skamania, and Klickitat Counties in Washington, and Wasco, Deschutes, Klamath, Lane, and Jackson Counties in Oregon.
According to the Service, the areas designated as critical habitat constitute the Service’s best assessment of the areas that meet the definition of critical habitat. In the final rule, the Service states that it based its designation on the best available scientific data after taking into account the economic impact, national security impact, and other relevant impacts of specifying a particular area as critical habitat.
The Service listed the Oregon spotted frog as threatened under the Endangered Species Act (ESA) on August 29, 2014. According to the Service, all designated areas of critical habitat are known to have been occupied by the species at the time the species was listed in 2014.
The Service first proposed critical habitat for the species on August 29, 2013, with refinements to the proposal published on June 18, 2014. The proposal was thereafter peer reviewed in accordance with the Service’s peer review policy. The final rule responds to comments from the peer reviewers, as well as to 114 comment letters received regarding the proposed designation.
On May 6, 2016, the U.S. Fish and Wildlife Service (“Service”) published its proposed revisions to the Bald and Golden Eagle Protection Act (“BGEPA”) permit program. The stated intention of these proposed revisions is to improve upon the 2009 regulations establishing a permit program under BGEPA. In 2012, the Service issued an advance notice of proposed rulemaking seeking public input on aspects of the 2009 regulations. In addition to updating the best available science regarding eagle populations, conservation measures and causes of eagle mortality, the proposed revisions seek to include input received from the public about aspects of the 2009 regulations that could be improved. Notably, the revisions introduce of the concept of practicability to the permit issuance criteria, address compensatory mitigation requirements, and emphasize local populations in the “Preservation Standard,” among other changes. Also notably, the proposed revisions reintroduce the maximum permit duration of 30-years. In 2013, the Service issued an amendment to the 2009 eagle regulations extending the 5-year maximum term to 30-years. In 2015, the U.S. District Court for the Northern District of California invalidated the amendment extending the term of BGEPA permits on National Environmental Policy Act grounds. Comments on the proposed rule will be accepted through July 5, 2016.
On April 28, 2016, the U.S. Fish and Wildlife Service (USFWS) issued a revised Biological Opinion and Incidental Take Permit for the Rosemont Copper Mine in Pima County, Arizona. USFWS originally issued a Biological Opinion and Incidental Take Permit for the mine project in 2013. Consultation with USFWS was reinitiated in 2015 primarily due to the listing of additional species not considered during the initial consultation.
The Rosemont Copper Mine is proposed on approximately 955 acres of private land and 75 acres of Arizona State Land Department land, on the east side of the Santa Rita Mountains and approximately 30 miles south of Tucson, Arizona. The mine will impact several species that are listed as threatened and endangered under the Endangered Species Act (ESA). Most notably, however, the mine threatens the remaining wild jaguar (Panthera onca) in the United States, and will impact designated critical habitat for jaguars in the vicinity of Sonorita, Arizona and the Huachuca Mountains.
Relying on its recently adopted critical habitat definition, USFWS concluded that the mine would not destroy or adversely modify designated critical habitat for the jaguar because, while the project would narrow the width of critical habitat by about half in one location, it would not entirely preclude movement of the species throughout designated critical habitat in the United States or impede habitat connectivity with Mexico. Jaguars historically ranged from southern United States to central Argentina: Argentina, Belize, Bolivia, Brazil, Colombia, Costa Rica, Ecuador, El Salvador, French Guiana, Guatemala, Guyana, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, U.S. (Arizona, New Mexico, Texas), Uruguay and Venezuela. Currently, they range from the southwestern United States to northern Argentina, and are found in all countries except for El Salvador and Uruguay.
Analyzing impacts to the species from a global perspective, USFWS also concluded that take of one jaguar in the United States would not jeopardize the species. According to the Biological Opinion, 30,000 jaguars still remain in the wild worldwide.
The validity of the USFWS determination, and its precedential value for future consultations, will likely be tested in an ESA lawsuit.
On April 21, 2016, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, “Service”) announced revisions to their proposed modifications to the Endangered Species Act (“ESA”) petition process. 81 Fed. Reg. 23,448 (Apr. 21, 2016) (pdf). In May 2015, the Service announced proposed changes to the petition process for listing a species or seeking to change the listing status of a species under the ESA. 80 Fed. Reg. 29,286 (May 21, 2015) (pdf). The Service’s proposed rule originally required petitions to list species to address only one species, contain information about a species’ current range (including the states and/or countries included in a species’ range), and certify that the petition provided all relevant information regarding the species. The proposed rule also required a petitioner, in every state where the species occurs, to coordinate with the State in the development of relevant information and to serve a copy of the petition on the State resources agency at least 30 days prior to submitting the petition to the Service. As previously detailed here, these proposed changes represented a significant departure from the petition process that currently exists.
The Service stated that the May 2015 proposed rule was intended to both comply with the Service’s obligation under section 6 of the ESA to cooperate with the States to the maximum extent possible, and to maximize efficiency in processing listing and re-classification petitions. In response to comments received on the proposed rule, the Service announced that it was making “small revisions in language in the proposed regulation text” for “clarity and simplicity.” Contrary to this characterization, however, many in the environmental community view the revisions as a significant scaling back or narrowing of the original changes, as reported by E&E’s Greenwire and the Center for Biological Diversity, making the listing petition process more favorable to conservation organizations.
Among the revisions to the previously proposed changes are:
- Less Cooperation with the States. The requirement that petitioners coordinate with States and gather information from State wildlife agencies about a particular species was eliminated. Rather, petitioners must simply provide affected states with notice of their intent to file a petition for listing and/or reclassification at least 30 days prior to submitting the petition to the Service.
- Relaxation of the One Species per Petition Rule. Previously, the Service envisioned restricting a petition to addressing a single species or distinct population segment. However, in the proposed revisions, the Service states that constraining a petition to a single species means constraining the petition to a single “taxonomic species.” Meaning that a petition can include multiple subspecies of the same species or multiple distinct population segments of a species.
- All Relevant Information Not Required. One of the most dramatic revisions is the removal of the requirement that petitioners certify that they have provided all relevant information with a petition to list or reclassify a species. Comments received regarding this requirement asserted that it “would be difficult to implement and enforce.”
The Service also clarified in the revisions that it even if a petition fails to comply with the petition content requirements, it will retain the discretion to process a petition that “substantially complies” with the content requirements. Finally, the Service clarified that its review of a petition will include “all information readily available” and that its ultimate finding that the petitioned action may be, is, or is not warranted will be published in the Federal Register.
Due to the revisions, the Service reopened the public comment period for the proposed regulations. The Service will accept comments until May 23, 2016.
Environmental Management has released an advanced copy of an article I co-authored with Dr. Dennis Murphy entitled, Guidance on the Use of Best Available Science under the U.S. Endangered Species Act. The principle purposes of the article are to identify the types of data, analyses, and modeling efforts that can serve as best available science and consider the role and application of best available science in effects analysis and adaptive management. The article is available free of charge, here.
On March 29, 2016, the U.S. District Court for the Southern District of California granted summary judgment in favor of the Bureau of Indian Affairs (“BIA”) in a lawsuit involving the grant of a lease to Tule Wind, LLC for construction of the second phase of an industrial-scale wind energy facility. The Protect Our Communities Foundation v. Black, Case No. 14-cv-2261 (S.D. Cal. March 29, 2016). Plaintiffs alleged that BIA’s approval of the project (1) violated the National Environmental Policy Act (“NEPA”); (2) violated the Bald and Golden Eagle Protection Act (“BGEPA”); and (3) violated the Migratory Bird Treaty Act (“MBTA”).
With respect to the BGEPA and MBTA claims, Plaintiffs alleged that by approving the Record of Decision granting the lease to Tule Wind, BIA permitted Tule Wind to violate these two laws given the wind energy facility’s proximity to eagle nests in the region. The court disagreed with Plaintiffs allegations finding (1) the BIA lease does not authorize the killing of eagles or other migratory birds; (2) BGEPA and MBTA are reactive laws and do not require an agency permitting a third party’s otherwise lawful activity to condition approval on obtaining authorization under either law; (3) BIA does not administer or enforce either the MBTA or BGEPA; and (4) individuals are responsible for their own compliance under BGEPA and that an agency need only obtain a BGEPA permit if the take of eagles are likely to result from agency actions implemented by the agency. With respect to the NEPA claim, plaintiffs alleged that BIA was required to prepare a supplemental NEPA analysis. The court disagreed, finding that the approval of the lease was the major federal action and BIA had no further remaining major federal actions requiring supplemental NEPA.
This week, two congressional committees are holding three separate hearings on issues related to the Endangered Species Act (ESA). On April 19, the House Committee on Natural Resources will hold an oversight hearing entitled Recent Changes to Endangered Species Critical Habitat Designation and Implementation. On April 20 and 21, the House Oversight and Government Reform Subcommittee on Interior will hold two hearings to discuss delisting under the ESA. Nossaman partner, Robert D. Thornton, will testify at the committee hearing on April 20.
The hearing before the Natural Resources Committee will focus on the recent critical habitat final rules and policy issued by the U.S Fish and Wildlife Service and National Marine Fisheries Service, which we reported about here. Witnesses at the hearing will include Dan Ashe, Director of the Fish and Wildlife Service; Karen Budd-Falen, Senior Partner at Budd-Falen Law Offices, LLC; David Bernhardt, Shareholder at Brownstein Hyatt Farber Schreck, LLP; Robbie LaValley, County Administrator, Delta County; and Dr. Loyal Mehrhoff, Endangered Species Recovery Director at Center for Biological Diversity.
The hearings before the House Oversight and Government Reform Subcommittee on Interior will focus on the challenges that the U.S Fish and Wildlife Service and National Marine Fisheries Service face when making a determination and attempting to delist species under the ESA. In addition to Mr. Thornton, witnesses for the hearings on delisting will include Karen Budd-Falen; Lowell Baier, President Emeritus of the Boone and Crockett Club; Joel Bousman, Chairman of the Sublette County Board of Commissioners; and Director Ashe.