Endangered Species Law and Policy : Environmental and Natural Resources Attorneys from Nossaman

President Obama announced a government consolidation plan that would involve transferring parts of the National Oceanic and Atmospheric Administration ("NOAA"), which is currently part of the Department of Commerce, to the Department of the Interior.  NOAA oversees marine wildlife, including endangered marine species.  The Fish and Wildlife Service, which is an agency within Interior, oversees freshwater species and land-dwelling wildlife.  In his remarks regarding the proposed consolidation, President Obama, suggested that having the two agencies that conduct oversight over species in separate departments was inefficient.

As reported by Jason Samenow in the Washington Post, the consolidation plan is facing growing opposition.  Several environmental groups, including the NRDC have spoken out against the plan arguing that it could hinder the government's protection of the oceans and undermine the agency's independence.  The National Weather Service Employee's Union is also opposed to the consolidation.  However, not everyone thinks the consolidation is entirely bad.  David Malakoff of Science quotes a former head of NOAA's marine fisheries program as stating that "The place that NOAA sits doesn't matter; what matters is that its operations need to be coherent and functioning" and that there are both advantages and disadvantages to the proposed consolidation.

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On January 12, 2012, the U.S. Fish and Wildlife Service found, after completing a 90-day review, that a petition to list the Humboldt marten (Martes americana humboldtensis) as an endangered or threatened species under the federal Endangered Species Act presented substantial scientific information indicating that listing may be warranted.  The Service will now conduct a comprehensive status review of the species to determine whether listing of the Humboldt marten is warranted.  The Service will be accepting comments on the Humboldt marten until March 12, 2012. 

For almost 50 years the Humboldt marten, a member of the weasel family, was considered potentially extinct.  In 1996, however, a stationary camera captured a picture of the illusive creature in Del Norte, California.  It is believed that the Humboldt marten population in California consists of fewer than 100 individuals.

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The U.S. Fish and Wildlife Service (FWS) and the California Department of Fish and Game (DFG) have approved the San Diego County Water Authority’s (Authority) Natural Community Conservation Plan/Habitat Conservation Plan (NCCP/HCP), which is expected to contribute to the conservation of San Diego County’s natural resources, while providing a more efficient endangered species permitting process for the Authority. The 55-year plan satisfies the requirements for incidental take authorization under California’s Natural Community Planning Act and the federal Endangered Species Act.

The comprehensive plan covers 63 plant and animal species and their habitats that may be adversely affected by Authority activities, including the construction, operation, repair, and maintenance of current and future water supply infrastructure facilities. The 63 species include 26 plants, 13 birds, nine reptiles, eight mammals, five invertebrates, and two amphibians. Of the 63 species covered by the plan, 18 are currently listed as endangered or threatened under the state and/or federal Endangered Species Acts. The plan covers roughly 922,000 acres in San Diego County, which encompasses areas served by the Authority and its member water agencies. The plan also includes a small portion of land in south-central Riverside County.

The Authority submitted the NCCP/HCP, along with a draft Environmental Impact Report/Environmental Impact Statement (EIR/EIS), to FWS and DFG in March 2010 (pdf) as part of its application for an incidental take permit. A final EIR/EIS was issued by the Authority and FWS in February 2011 (pdf) in accordance with the National Environmental Policy Act (NEPA) and the California Environmental Quality Act. A record of decision (pdf) was issued under NEPA in September 2011. The final NCCP/HCP and EIR/EIS documents are available here.

Concurrent with approval of the NCCP/HCP, FWS issued an incidental take permit (pdf) to the Authority that allows limited impacts to the listed species. If any of the remaining species covered by the plan become listed in the future, they will automatically be added to the permit.

According to the San Diego Union-Tribune, the three agencies “worked closely and collaboratively to find a way to comprehensively address potential endangered species impacts from the water authority’s projects and activities.” (San Diego Union-Tribune, Jan. 9, 2012, Mike Lee). Jim Bartel, field supervisor for FWS’s Carlsbad office, also stated that the plan “is a great example of innovative and effective environmental planning.”
 

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In September 2011, we reported that a federal district court made a rare finding of agency bad faith in litigation challenging a biological opinion and reasonable and prudent alternative (RPA) issued with respect to the effects of the Central Valley Project and State Water Project in California on the threatened delta smelt.  The finding came on the heels of a decision by the court granting injunctive relief to the State of California and public water agencies and agricultural interests, enjoining implementation of a component of the RPA previously determined to be arbitrary and capricious, which is referred to as the Fall X2 Action.  Following the bad faith finding, the House of Representatives held an oversight hearing, and a number of Representatives expressed their concern about the conduct of the federal agency personnel.

Rather than launch an Inspector General's investigation, the Service decided to hire an engineering and designing consulting firm, Atkins, to oversee a review of the finding of bad faith.  At the same time, the Service vehemently defended the conduct of its personnel, going so far as to give a merit award to one of the two personnel charged with bad faith less than a month after the court's decision and well before the outside review was completed.  The decision to contract directly with an outside organization to conduct the review allowed the Service to control the scope of the review including the questions posed to the reviewers, determine what materials the reviewers would be provided, and limit the panel to communicating only with the Department of the Interior during the course of the review.

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The Fish and Wildlife Service (Service) announced this week a 90-day finding (pdf) on a petition (pdf) submitted by the Center for Biological Diversity to list the Sierra Nevada red fox (Vulpes vulpes necator) as endangered or threatened under the Endangered Species Act (ESA) and to designate critical habitat. As reported in the Sacramento Bee and the Modesto Bee, the Service stated that there is enough evidence to consider protecting the fox based on its small population, threats from off-road vehicles and disease transmission from dogs.

The fox, considered one of the rarest mammals in the United States, weighs about ten pounds, measures just over two feet, and generally lives only above an elevation of 7,000 feet. The current distribution of Sierra Nevada red fox is believed to be restricted to two small populations: one in the vicinity of Lassen Peak and the other in the vicinity of Sonora Pass.  In 1980, the California Fish and Game Commission listed the species as threatened under the California Endangered Species Act.

Historically, the Sierra Nevada red fox occupied high-elevation areas of the Sierra Nevada and Cascade mountain ranges in California, ranging from Tulare County north to Sierra County, and from the vicinity of Lassen Peak and Mt. Shasta west to the Trinity Mountains in Trinity County. A recent study indicates that this range also included the southern Cascade mountain range in Oregon, as far north as the Columbia River.

Scientific and commercial data and other information regarding this subspecies must be received on or before March 5, 2012. Based on the status review, the Service will issue a 12-month finding on the petition, which will address whether the listing is warranted.

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As Peter Fimrite reported in the San Francisco Chronicle, this week a lone gray wolf (Canis lupis) crossed the border from Oregon into California.  This marks the first time since 1924 that a wolf was seen in California.  The species was hunted to extinction within the state, due at least in part to concerns about the risks it posed to humans.  The species is listed (pdf) as endangered under the federal Endangered Species Act.  It is not listed under the California Endangered Species Act.

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Secretary of the Interior Ken Salazar recently announced that the Fish and Wildlife Service would remove the gray wolf (Canis lupus) population in the Great Lakes region from the list of threatened and endangered species under the Endangered Species Act (ESA).  The species was listed in 1967 under the predecessor to the ESA.  The final rule delisting the gray wolf is available here (pdf).  The Service released the proposed rule (pdf) on May 5, 2011.  The population of gray wolfs in the Great Lakes region is estimated (pdf) to include 2,921 wolves in Minnesota, 687 wolves in Michigan, and 782 wolves in Wisconsin.

Adult gray wolves range from 40 to 175 pounds and prey upon medium and large mammals, including deer, moose, elk, caribou as well as domestic animals, including horses and cattle.  The decision to delist the speceis in the Great Lakes region drew praise from State officials in the region, farmers, and some conservation and environmental advocacy groups, but it has been criticized as premature by other environmental advocacy groups.

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Federal and state officials have issued proposed changes to the Bay Delta Conservation Plan’s (BDCP) Memorandum of Agreement (MOA) to address public comments concerning the language of the MOA and the need for meaningful public involvement in the BDCP process.

The U.S. Bureau of Reclamation (Reclamation) and the California Department of Water Resources (DWR) issued the draft MOA on September 6, 2011 and requested public comments (pdf) by November 16, 2011. The MOA is intended to replace in its entirety an earlier memorandum of agreement that was executed in March 2009.

In response to comments received from the public, federal, and state agencies issued a revised version of the MOA (pdf), comprehensive responses (pdf) to the comments, and a summary (pdf) of the comments. Revisions to the MOA included clarifying that the BDCP will address both water supply and environmental conditions, revising the BDCP schedule, and further clarifying the role of consultants in the BDCP process.

The MOA establishes a joint process for development of the BDCP among Reclamation, DWR, and certain California public water agencies that export water from the Sacramento-San Joaquin River Delta. The MOA, titled the “"First Amendment to the Memorandum of Agreement (MOA) Regarding Collaboration on the Planning, Preliminary Design and Environmental Compliance for the Delta Habitat Conservation and Conveyance Program in Connection with the Development of the Bay Delta Conservation Plan,” is intended to enable a timely analysis of conservation and water supply measures developed in the BDCP.
 

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As recently reported by Matt Weiser of the Sacramento Bee, on December 15, 2011, the California Fish and Game Commission named the black-backed woodpecker (Picoides arcticus) a candidate species.  Under the California Endangered Species Act, the Department of Fish and Game now has 12 months to complete a status review of the species "based on the best scientific information available" and submit a report and listing recommendation to the Commission.  After receiving the Department's recommendation and all appropriate public comment at a public hearing, the Commission will decide whether listing of the woodpecker as an endangered or threatened species is or is not warranted. 

The Department's initial evaluation and recommendations is available here (pdf).

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