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

On May 27, 2010, the United States District Court for the Eastern District of California issued findings of fact and conclusions of law (PDF) regarding Plaintiffs’ request for a preliminary injunction in The Consolidated Delta Smelt Cases, No. 09-407 (E.D. Cal. May 27, 2010).  The matter consists of five consolidated actions that all challenge the December 2008 biological opinion, jeopardy and adverse modification determinations, and reasonable and prudent alternative (RPA) for continued operation of the Central Valley Project (CVP) and State Water Project (SWP) issued by the Fish and Wildlife Service (FWS).  The CVP and SWP provide water for approximately 25 million Californians.

While the Court did not issue an order, it did indicate that the Plaintiffs had already succeeded on their National Environmental Policy Act claims and were likely to succeed on at least some of their Endangered Species Act claims.  Specifically, the Court determined that "FWS’s reliance on analyses [of the effects of the CVP and SWP] that utilize raw (as opposed to population-normalized) salvage data is an undeniable failure to use the best available scientific methodology."  Findings & Conclusions at 52.  Furthermore, the Court determined that Reclamation erred by failing to ensure that "the RPA utilized the best available science."  Id. at 116.

The Court is holding a hearing to address whether to issue an injunction on May 28, 2010.

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Mike Taugher of the Contra Costa Times reports that Dr. Pat Glibert of the University of Maryland was forced to resign from the National Research Council’s Committee on Sustainable Water and Environmental Management in the California Bay-Delta.  The National Research Council convened the committee at the request of members of the California congressional delegation, including Senator Feinstein and Representative Costa.

The decision to force Dr. Glibert off the committee, which released its first report in March 2010 and had plans to develop a second report in the coming year, is extremely unusual.  Taugher reports that the National Research Council's decision was directly responsive to the publication of a study in a peer-reviewed scientific journal this past week by Dr. Glibert, in which she concluded that increases in ammonium downstream of the Sacramento Regional County Sanitation District's sewage treatment plant altered the food web in the Delta and contributed to the decline of native fish.

In response, a second member of the committee and member of the Water, Science, and Technology Board that oversees the committee’s work, Michael McGuire, resigned in protest.   According to Taugher, McGuire's resignation states, "Given the fixed points of view of many of the remaining committee members and the stilling of an important alternative voice on the committee, I do not see how I can contribute to provide a meaningful contribution."  The decisions of the National Research Council and McGuire are likely to raise questions about the committee and its work.

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This week, the Endangered Species Committee of the American Bar Association's Section on Environment, Energy and Resources published its most recent edition of the Endangered Species Committee Newsletter.  The Newsletter is edited by Paul Weiland and includes an article by him regarding an interim report of the National Research Council’s Committee on Sustainable Water and Environmental Management in the California Bay-Delta. The report is entitled “A Scientific Assessment of Alternatives for Reducing Water Management Effects on Threatened and Endangered Fishes in California’s Bay Delta.”  Click here for a prior post regarding the report.

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On May 17, 2010, the United States District Court for the Northern District of California approved a stipulated injunction and order submitted by the Center for Biological Diversity ("CBD") and the U.S. Environmental Protection Agency ("EPA") establishing, among other things, an immediate prohibition on the use of certain pesticides in and around the greater San Francisco Bay area, and a series of deadlines for the EPA to make "effects determinations" and, as necessary, initiate consultations under the Endangered Species Act. 

EPA is responsible for registering pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act, and ensuring that the pesticides uses it authorizes will not have unreasonable adverse effects on the environment, including on threatened and endangered species.  With respect to the 75 pesticides at issue in the CBD litigation, CBD alleged that the EPA failed to comply with section 7(a)(2) of the Endangered Species Act when it registered the pesticides for use in the United States without consulting with the the U.S. Fish and Wildlife Service regarding potential impacts on tidewater goby, delta smelt, California clapper rail, salt marsh harvest mouse, California tiger salamander, San Francisco garter snake, California freshwater shrimp, San Joaquin kit fox, Alameda whipsnake, valley elderberry longhorn beetle, and Bay checkerspot butterfly and their habitats.  All of these species are listed as either threatened or endangered under the Endangered Species Act.

Although CBD and EPA filed a joint motion for entry of stipulated injunction in January 2010, because defendant-intervenors had opposed the stipulation, final approval of the stipulated injunction was delayed until this past week.  As finally adopted, the stipulated injunction is comprised of four basic elements:  (1) a schedule for EPA to complete its "effects determination" for certain identified pesticides; (2) a general prohibition on the use of certain pesticides within and around the habitat of the 11 listed species; (3) the distribution of a bilingual notification brochure warning that certain pesticides may harm wildlife or their habitat; and (4) a similarly worded shelf-tag for certain pesticide containing products.  With respect to the prohibition on use, the stipulated injunction provides a list of exemptions for common household uses, such as spraying potted plants or controlling subterranean termites.         

CBD had obtained a similar stipulated injunction from the EPA in 2005 as a result of litigation concerning the California Red-legged frog and EPA's previous registration of 66 pesticides. 

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On May 18, 2010, the United States District Court for the Eastern District of California issued findings of fact and conclusions of law (PDF) regarding Plaintiffs’ request for a preliminary injunction in The Consolidated Salmonid Cases, No. 09-1053 (E.D. Cal. May 18, 2010).  The matter consists of seven consolidated actions that all challenge the June 2009 biological opinion, jeopardy and adverse modification determinations, and reasonable and prudent alternative (RPA) for continued operation of the Central Valley Project (CVP) and State Water Project (SWP) issued by the National Marine Fisheries Service (NMFS). The CVP and SWP provide water for approximately 25 million Californians.

Plaintiffs challenged the implementation of two components of the RPA developed by NMFS, RPA Actions IV.2.1 and IV.2.3. Action IV.2.1 imposes minimum San Joaquin River inflow requirements in conjunction with maximum permissible exports (i.e., a 4 to 1 ratio between inflow and exports) and is effective April 1 to May 31.  Action IV.2.3 limits Old and Middle river flows to no more negative than -2,500 to -5,000 cfs, depending on juvenile entrainment levels, and is effective January 1 to June 15 or until a temperature trigger is hit at Mossdale (a location on the San Joaquin River).

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On April 28, 2010, the U.S. District Court for the Western District of Washington granted a motion for summary judgment filed by Wild Fish Conservancy, holding that EPA and NMFS failed to use the best scientific and commercial data available in their informal consultation regarding EPA's approval of water-quality standards that exempted salmon farms from various state water quality standards.  Wild Fish Conservancy v. U.S.E.P.A., No. C08-0156, 2010 WL 1734850 (W.D. Wash April 28, 2010).

Specifically, the court held that when EPA and NMFS engaged in informal consultation over EPA's approval of the disputed water quality standards, they should have considered the recent recovery plans for Puget Sound Chinook salmon (2007) and for the Southern Resident Killer Whales (2008) (PDF).  Both recovery plans expressly stated that they were developed based on the best scientific data available regarding each species.  The letter that NMFS issued concurring in EPA's not-likely-to-adversely-affect determination referenced three earlier studies prepared by NMFS and one prepared by the Washington State Department of Natural Resources, but not the more recent recovery plans.  Indeed, the court found that the administrative record was devoid of any mention of the two recovery plans.

Ultimately, the court ordered EPA and NMFS to reconsider whether formal consultation is required taking into account the best available science.

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The Fish and Game Commission announced a change in its hearing date and location regarding listing the California tiger salamander as threatened under California's Endangered Species Act.  The hearing will now be a teleconference meeting held on Thursday, May 20, 2010 at 9:30 a.m. at the Commission Conference Room in Sacramento.  Locations where the public may participate are provided in the Commission's notice (PDF). 

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The Fish and Wildlife Service announced (PDF) that it is initiating a 12-month status review of a petition to list the Hermes copper butterfly (Hermelycaena [Lycaena] hermes) as a threatened or endangered species under the Endangered Species Act and to designate critical habitat.  Hermes copper butterflies are known to range from Fallbrook, California, in northern San Diego County to 18 miles south of Santo Tomas in Baja California, Mexico, and from Pine Valley in eastern San Diego County to Lopez Canyon in western San Diego County.  The species inhabits coastal sage scrub and southern mixed chaparral and is dependent on its larval host plant, Rhamnus crocea (spiny redberry), to complete its lifecycle.

The decision to review the butterfly is the result of a 90-day finding (PDF) by the Service indicating listing may be warranted.  Twice previously interested parties unsuccessfully petitioned to have the species listed, in 1991 and 2004.  Last year, the Center for Biological Diversity challenged the Service’s negative finding on the 2004 petition and, in October, reached a settlement agreement with the Obama administration whereby the Service agreed to review the petition again and to look at all new information about the butterfly and its habitat that has become available since the not substantial finding in 2006.

The Service is soliciting information about the butterfly and its habitat from interested parties for its 12-month status review.  Information must be received on or before July 6, 2010 and may be submitted to either:  Federal eRulemaking Portal: http://www.regulations.gov (search for docket FWS-R8-ES-2010-0031 and then follow the instructions for submitting comments); or by U.S. mail or hand-delivery addressed to Public Comments Processing, Attn: FWS-R8-ES-2010-0031; 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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