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

Almost five years after receiving a listing petition, yesterday, the United States Fish & Wildlife Service finally issued its 90-day petition finding for the Mohave ground squirrel (Xerospermophilus mohavensis), finding that "listing may be warranted."  

The listing petition was jointly filed by the Defenders of Wildlife and Dr. Glenn R. Stewart on September 5, 2005.  Although the Endangered Species Act contemplates that the Fish & Wildlife Service will issue a 90-day petition finding within 90 days of receiving a petition, approximately six months after receiving the petition for the Mohave ground squirrel, the Service explained in a letter to petitioners that it would not be able to address the petition because 2006 listing funds had already been allocated.  Without further explanation, the Fish & Wildlife Service failed to act on the listing petition for the next three years. 

In 2010, however, the Fish & Wildlife Service finally addressed the petition, and determined that based on the information in the petition and the information in its files, "listing the Mohave ground squirrel may be warranted due to destruction, modification, or curtailment of the species' habitat or range."  In support of this conclusion, the Fish & Wildlife Service found that numerous activities were potentially impacting the Mohave ground squirrel's habitat, including urban and rural development on public and private lands, military activities at Fort Irwin, livestock grazing, and transportation activities. 

Petitioners had also asserted that because there is a positive correlation between rainfall and survival of the Mohave ground squirrel, decreased precipitation due to climate change was adversely affecting the ground squirrel's habitat.  The Fish & Wildlife Service did not find this assertion persuasive, however, explaining that while it agreed that there would be an overall decrease in precipitation due to climate change, it did not believe that current climate change models are "capable of making meaningful predictions of climate change for specific, local areas such as the range of the Mohave ground squirrel."    

Having found that listing of the Mohave ground squirrel may be warranted, the next step for the Fish & Wildlife Service is to make a 12-month finding on whether listing of the species is warranted.

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Senator Lois Wolk has introduced two separate bills into the California Senate to amend the California Endangered Species Act (CESA) and Natural Community Conservation Planning Act (NCCPA).

SB 1303, as amended, would amend section 2087 of the California Fish and Game Code, which exempts otherwise lawful “routine and ongoing agricultural activities” from the take prohibitions established by CESA. Routine and ongoing agricultural activities are defined by regulation to include, among other things, “any practices performed by a farmer on a farm as incident to or in conjunction with [ ] farming operations.”  Cal. Code Regs. tit. 14 § 786.1.

Presently, section 2087 is set to expire on January 1, 2011. SB 1303, as amended, would extend the expiration date to January 1, 2012. The bill has broad support from the agricultural community. Absent this provision, supporters argue that farmers may be subject to penalties under CESA if their lands provide habitat for listed species, which creates an incentive structure that could undermine the purposes of CESA.

The bill was passed out of the Committee on Natural Resources and Water and is set to be heard by the Committee on Appropriations on May 3, 2010.

SB 1334, as amended, would amend section 2820 of the California Fish and Game Code, which is a provision of the NCCPA. The NCCPA authorizes the California Department of Fish and Game to enter into a planning agreement with any person or public agency to prepare a natural community conservation plan (NCCP) in cooperation with a local agency that has land use permit authority over the activities proposed to be addressed in the plan, to provide comprehensive management and conservation of multiple wildlife species. Cal. Fish & Game Code § 2810(a). An approved NCCP may permit take of threatened or endangered species that is otherwise prohibited by CESA, provided such species are covered by the plan. Section 2820 sets forth the findings that the Department of Fish and Game must make in order to approve a NCCP. Id. § 2820.

SB 1334 would amend section 2820(a)(1), which requires the Department to make a finding that the NCCP “has been developed consistent with the process identified in the planning agreement entered into pursuant to Section 2810”, by adding the following clause “including cooperation with all local agencies that have land use permit authority over the activities proposed to be addressed in the plan.” This proposed amendment is a response to the Bay Delta Conservation Planning process, and its supporters contend that the steering committee for the Bay Delta Conservation Plan has failed to work cooperatively with local land use authorities to date.

The bill was passed out of the Committee on Natural Resources and Water and is set to be heard by the Committee on Appropriations on May 3, 2010.
 

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The Fish and Wildlife Service announced the issuance of a comprehensive set of recommended guidelines (PDF) on how to minimize the impact of land-based wind turbines on wildlife and their habitat.  The Service transmitted these recommendations to Secretary of the Interior, Ken Salazar.  Secretary Salazar will review the recommendations and consider them as he directs the Service to develop guidelines for wind turbines.

The guidelines are founded on a tiered approach for assessing potential impacts to wildlife and their habitats.  There are five tiers, and each tier includes a set of questions to help the developer identify potential problems associated with each phase of a project. The goal of the guidelines is to provide a consistent approach to assessing impacts to wildlife and habitats, while still providing flexibility to deal with the unique circumstances of individual projects. 

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The Fish and Wildlife Service announced (PDF) today that it will accept comments through May 20, 2010 regarding a status review of the Sacramento splittail (Pogonichthy macrolepidotus), a fish endemic to lower-elevation waters of the Central Valley of California.  Based on the status review, the Service will issue a 12-month finding by September 30, 2010 that will address whether listing the species may be warranted under the Endangered Species Act (ESA).  If warranted, the Service will also publish, concurrently with the 12-month finding, a proposed rule to list the Sacramento splittail and a final determination on or before September 29, 2011.

The status review and 12-month finding are the result of a settlement agreement with the Center for Biological Diversity, which filed a complaint (PDF) in federal court against the Service in August 2009.  The complaint challenged the Service’s removal of the Sacramento splittail from the ESA threatened species list and alleged improper political influence by a former Department of the Interior official.  The Sacramento splittail had been listed as threatened in 1999, but the Service removed (PDF) it from the list in 2003 after an earlier court decision found the listing decision to be unlawful.

Interested parties may submit comments regarding the status review to the Service by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS–R8–ES–2010–0013 and then follow the instructions for submitting comments.
• U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS–R8–ES–2010–0013; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.

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In a speech at the Department of the Interior, President Obama announced a new national conservation effort titled the America’s Great Outdoors Initiative.

The President described the Administration’s plans to roll out the Initiative in the following way.

"In the months ahead, members of this administration will host regional listening sessions across America. We’ll meet with everybody -- from tribal leaders to farmers, from young people to businesspeople, from elected officials to recreation and conservation groups. And their ideas will help us form a 21st century strategy for America’s great outdoors to better protect our natural landscape and our history for generations to come."

President Obama went on to elaborate on four major components of the Initiative.

"First, we’re going to build on successful conservation efforts being spearheaded outside of Washington -– by local and state governments, by tribes, and by private groups -– so we can write a new chapter in the protection of rivers, wildlife habitats, historic sites, and the great landscapes of our country."

"Secondly, we’re going to help farmers, ranchers, property owners who want to protect their lands for their children and their grandchildren."

"Third, we’ll help families spend more time outdoors, building on what the First Lady has done through the “Let’s Move” initiative to encourage young people to hike and bike and get outside more often."

"And fourth, we want to foster a new generation of community and urban parks so that children across America have the chance to experience places like Millennium Park in my own Chicago."

News outlets, including the Washington Post, covered the announcement.
 

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The regulatory requirements of the Endangered Species Act ("ESA") are imposing limitations on the development of renewable energy projects in the California desert. State and federal regulatory agencies are attempting to expedite ESA and other environmental reviews of proposed renewable energy projects. But the jury is out on whether these efforts will succeed. The ability of California to implement its precedent-setting climate change legislation hangs in the balance. As Governor Schwarzenegger stated "If we cannot put solar power in the Mojave Desert, I don't know where the hell we can put them."

Click here for the ESA and Renewable Energy Power Point presentation that was given at the April 8-9 ESA conference

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On April 13, 2010, the Pacific Legal Foundation (PLF) filed a petition (PDF)  to remove the coastal California gnatcatcher, specifically, the subspecies Polioptila californica californica, from the Fish and Wildlife Service’s list of threatened species. Considerable controversy surrounded the 1993 listing and subsequent designation of critical habitat for the coastal California gnatcatcher because its range includes prime real estate and agricultural land in the southern California counties of Los Angeles, Orange, San Diego, Riverside, and San Bernardino.

In its petition, PLF argues, in essence, that scientific studies indicate that no such subspecies exists, i.e., there is no such thing as the “coastal California gnatcatcher.” PLF cites scientific studies published since the 1993 listing that undermine the original basis for the listing. The decision to list the gnatcatcher relied heavily on research published in the early 1990s indicating that the relatively small population of gnatcatchers in southern California formed a subspecies of the much larger population of California gnatcatchers that extends from Los Angeles to the southern end of Baja, Mexico. But studies based on genetic analysis and re-analysis of the original data set that led to the listing conclude that there is no biological basis for the P. c. californica taxonomic classification. If there is no such subspecies, then, according to PLF, the gnatcatcher is not threatened because the larger population inhabiting southern California and Baja, Mexico is not vulnerable to extinction in the near future.

If the Fish and Wildlife Service delists the gnatcatcher, the designation of nearly 200,000 acres of land as critical habitat will be withdrawn. Delisting, however, would not result in the removal of all regulatory protections for the gnatcatcher in southern California. Much of the coastal California gnatcatcher’s range is already subject to conservation under the terms of Habitat Conservation Plans that collectively cover millions of acres, and the gnatcatcher is also protected under the Migratory Bird Treaty Act. Accordingly, delisting may have little or no practical effect for many landowners and developers in the region.

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The Court of Appeals for the Fifth Circuit rejected Endangered Species Act (“ESA”) challenges to the approval of a rail line serving a limestone quarry in Texas. The court upheld the determination by the Surface Transportation Board (“STB”) and the Fish and Wildlife Service (“Service”) to limit the effects analysis in the biological opinion to the impacts of the first phase of the multi-phase quarry project. The court concluded that the subsequent phases were not an interrleated action, a cumulative effect or an indirect effect of the approval of the rail line under the ESA.

In Medina County Environmental Action Association v. Surface Transportation Board, the STB granted an exemption allowing a railroad company to construct and operate a rail line and loading loop to service a proposed limestone quarry in Texas. The proposed rail line was part of “Phase One” in the development of a 1,760-acre tract. Phase One consisted of the proposed rail line and development of 640 acres as a quarry. There were no specific plans for further development, although it was indicated that the rest of the tract might be quarried in additional phases over the next 50 years, depending on market demand.

An environmental group challenged the exemption alleging that the STB and the Service failed to comply with their obligations under section 7 of the ESA because they did not assess the potential for jeopardy posed by the entire 1,760-acre tract on the endangered golden-cheeked warbler and listed karst invertebrates and only assessed the potential effects for Phase One. The plaintiff made three arguments: (1) the entire proposed development is an “interrelated action” to the proposed rail (2) the entire proposed development should have been evaluated as a cumulative effect of the proposed rail; (3) the entire proposed development is an indirect effect of the proposed rail. The court rejected all three claims.
 

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The Fish and Wildlife Service announced that the delta smelt warrants uplisting (PDF) from "threatened" to endangered" under the Endangered Species Act.  However, uplisting at this time is precluded by the need to address higher priority species.  This "warranted but precluded" finding will not have any practical effect on existing protections for the delta smelt. 

According to the Service, the delta smelt is native to the Sacramento-San Joaquin Delta and subject to several threats, including predation, competition with invasive species, contaminants, and entrainment by water export facilities.  The Service stated that it "is still unable to determine with certainty which threats or combinations of threats are directly responsible for the decrease in delta smelt abundance." 

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