Posts from May 2010
Posted in Court Decisions

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 ...

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 ...

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 ...

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 ...

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Posted in Court Decisions

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).

Posted in Consultation

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.

Posted in Listing

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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Tags: Listing
Posted in Listing

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 ...

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Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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