Posts from June 2010
Posted in Litigation

After nine years of environmental review and the arduous federal, state, and local permitting process, Cape Wind Associates, LLC (CWA) recently obtained the right to a commercial lease from the Minerals Management Service (recently renamed the Bureau of Ocean Energy Management, Regulation, and Enforcement) to construct and operate an offshore wind facility located in federal waters 4.7 miles offshore Cape Cod, Massachusetts, on Horseshoe Shoal in Nantucket Sound.

But on June 25, 2010 a coalition of environmental groups filed a lawsuit (PDF) in the federal ...

On June 24, 2010, the Fish & Wildlife Service issued a Notice of Violation to the City of Birmingham, Alabama for allegedly killing an estimated 11,700 endangered watercress darters, and injuring approximately 8,900 others, in a single incident in 2008.  The Service is seeking $2,975,000 in civil penalties as a result of the incident.

The watercress darter is found in only five spring brooks and spring pools in Birmingham, Alabama.  In September 2008, a Birmingham maintenance crew allegedly breached an earthen dam and drained a spring pool, stranding and killing thousands of ...

Posted in Court Decisions

The California Court of Appeal’s First Appellate District issued a decision affirming the lower court in a case of first impression regarding the interpretation of the term person in the California Endangered Species Act (CESA). The issue presented to the court was whether the California Department of Water Resources (DWR) is a person for the purpose of CESA. The court held that a state agency is a ‘person’ within the meaning of section 2080, which prohibits any ‘person’ from taking an endangered or threatened species without appropriate permit authority from the ...

Posted in Conservation

Home to endangered species, marine mammals, and nationally significant commercial and recreational fishing resources, the Gulf of Mexico ecosystem is under assault. When the Deepwater Horizon oil platform exploded on April 20, sinking two days later, it began spewing oil into the Gulf’s ecosystem. Recalling that the infamous Exxon Valdez oil spill released just over 11 million gallons of oil into Alaska’s Prince William Sound, on May 27 scientists estimated that the Gulf spill, hopefully now capped, released between 17 million and 27 million gallons of oil, making it the ...

Posted in Listing

On June 3, 2010, a federal court approved a settlement that requires the Fish and Wildlife Service to take final action on proposed listings for six penguin species and one distinct population segment in the next few months.  In response to a 2006 petition to list 12 species of penguins, in 2007 the Service found that there was enough evidence to conduct a status review for 10 of the 12.  In 2008, the Service issued three proposed rules to list seven of the 10 as threatened or endangered due to climate change and commercial fishing, among other factors.  (See 73 Fed. Reg. 77,264, 73 ...

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Tags: Listing

In a letter (PDF) dated May 25, 2010 and sent to Secretaries Salazar and Locke of the Departments of the Interior and Commerce, respectively, Stephen Parker of the National Research Council's Water Science and Technology Board explained the National Research Council's decision to force the resignation of Dr. Pat Glibert of the University of Maryland.

The forced resignation is extraordinary in light of the National Research Council's Policy on Composition and Balance and Conflicts of Interest for Committees Used in the Development of Reports (which explicitly ...

The Court of Appeals for the Ninth Circuit upheld the Fish and Wildlife Service's ("Service') no "adverse modification" determination despite the fact that the proposed project would destroy some critical habitat.

In Butte Environmental Council v. U.S. Army Corps of Engineers (PDF), environmental plaintiffs challenged the Service's biological opinion finding that a proposed business park to be located along Stillwater Creek in Redding, California would not adversely modify the critical habitat of the threatened vernal pool fairy shrimp, endangered vernal pool tadpole ...

On May 27, 2010, the United States District Court for the District of Columbia issued a decision rejecting a challenge to the U.S. Fish and Wildlife Service's critical habitat determination for the endangered San Diego fairy shrimp, concluding that the Service's determination was entitled to deference. 

Under the terms of the Endangered Species Act, the Service is required to designate, to the maximum extent practicable, critical habitat for an endangered or threatened species concurrently with a final listing rule.  Critical habitat is defined, in part, as ...

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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