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

Following the release of an incomplete draft of the Bay Delta Conservation Plan (BDCP), numerous stakeholders issued statements outlining their perspective on the status of the planning effort.  Statements were issued by a number of public water agencies that have provided most of the funding for the planning effort to date including Westlands Water District (pdf), Kern County Water Agency (pdf), Metropolitan Water District (pdf), and the State Water Contractors (pdf).  They were also released by other interested stakeholders, such as the Bay Institute and Environmental Defense Fund.  In response to the statement by Westlands Water District, in which the agency indicates it is withdrawing support for the BDCP, the U.S. Department of the Interior issued this letter (pdf).  In light of these statements, the fate of the BDCP remains unclear.

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The Bay Delta Conservation Plan (BDCP) is a long-term conservation strategy designed to improve the status of species and natural communities covered by the plan and provide the basis for the issuance of endangered species permits for the operation of the state and federal water projects in California.  For a number of years, federal and state agencies, numerous public water agencies, and non-governmental organizations have worked to develop the BDCP.  On November 18, an incomplete draft of the BDCP was released to the public amid controversy as reported by numerous news outlets including the New York Times and the Sacramento Bee.  Stakeholders with diverse interests expressed varying degrees of dissatisfaction with the BDCP, which is being developed at the same time that the current restrictions on the state and federal water projects are being challenged in numerous lawsuits filed in federal and state courts.

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The National Research Council (NRC) announced the formation of an ad hoc panel to review the Bay Delta Conservation Plan (BDCP).  The NRC explains that "[t]he panel’s review will be related to but be conducted separately from the on-going, more broadly focused NRC study entitled 'Sustainable Water and Environmental Management in the California Bay-Delta.'"  Provisional appointments to the panel, including Dr. Henry J. Vaux of the University of California, Berkeley as Chair, are provided here.  There is a 20 day public comment period on the appointees that commenced on November 12, 2010.

The NRC indicates that the draft BDCP is currently scheduled for release on November 24, 2010.  As we reported here, it is uncertain when a draft BDCP will be released.  The ad hoc panel is scheduled to meet December 8 - 10, 2010 in San Francisco, California, at the same time that the Committee on Sustainable Water and Environmental Management in the California Bay-Delta is meeting.  There is substantial overlap between the list of provisional appointments and the standing Committee.

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The Fish and Wildlife Service recently published an updated list of plant and animal species native to the United States that are candidates for listing as threatened or endangered species under the Endangered Species Act.  The list, referred to as a Candidate Notice of Review or CNOR, is published periodically by the Service.  A press release announcing the release of the CNOR is available here.  Each species on the list is assigned a listing priority number (or LPN) based on its status and threats.  The CNOR includes five new candidates, changes the LPN for four existing candidates, and removes one species from candidate status.  The CNOR contains a total of 251 species.

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In 2008, the National Oceanic & Atmospheric Administration ("NOAA") authorized Washington, Oregon, and Idaho to "lethally remove" individual sea lions that congregate below the Bonneville Dam and continue to eat listed salmon and steelhead after non-lethal deterrence methods prove unsuccessful.  Under the current program, after a sea lion is identified and trapped it is either transported to a new location or euthanized.  Earlier this month, however, a task force convened at NOAA's request recommended that the controversial program be liberalized, and that sea lions be shot on the spot as a visual deterrent to the remaining population.  The recommendations of the task force will now be considered by NOAA, and potentially incorporated into a new rule governing the program.

Although approximately 40 sea lions have been killed or removed since the initiation of the program, the United States Army Corps of Engineers reported that sea lion consumption of salmon and steelhead around Bonneville Dam grew from 3,846 in Spring 2007 to 5,095 in Spring 2010.

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On October 29, 2010, the Quechan Tribe of the Fort Yuma Indian Reservation filed a complaint (pdf) in the U.S. District Court for the Southern District of California against the U.S. Department of the Interior and its Bureau of Land Management (BLM) for actions approving a 709-megawatt solar project in the Imperial Valley between Octotillo and El Centro in southern California. The complaint challenges the BLM’s final approval of Tessara’s (formerly Sterling Energy Systems) 6,144-acre Imperial Valley Solar Project on BLM land under the Federal Lands Policy and Management Act (FLPMA), National Historic Preservation Act (NHPA), and National Environmental Policy Act (NEPA).  With respect to NEPA, the plaintiff alleged that defendants failed to determine whether historical or cultural resources occur on the project site and the National Environmental Policy Act because the Final Environmental Impact Statement (FEIS) does not adequately consider cultural impacts on the Tribe from destruction and loss of tribal archaeological sites and the proposed-federally listed flat-tailed horned lizard.

The Quechan Tribe’s Reservation lands run along the Colorado River near Yuma, Arizona; however, according to the complaint, the Tribe historically occupied lands spanning present-day Arizona and southern California, including the project site between Octotillo and El Centro. The flat-tailed horned lizard plays a significant role in the Quechan Tribal creation story.

The complaint also challenges BLM’s approval of an amendment to the California Desert Conservation Area (CDCA)—BLM’s resource management plan covering 25 million acres within southern California—allowing for solar energy and a right-of-way grant to lease land managed by the BLM for construction and operation of a solar electricity generation facility. The complaint alleges that the BLM’s approval of the CDCA amendment violates the Federal Lands Policy and Management Act because the CDCA designates the project site as “Class L” lands for lower intensity uses and BLM failed to evaluate or consider whether the project would constitute a “lower intensity use.”  The complaint also alleges the FEIS fails to adequately consider cumulative impacts from other planned solar projects.

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In a decision that could have profound implications for listing decisions under the Endangered Species Act, on November 4, 2010, the U.S. District Court for the District of Columbia remanded (PDF) the Polar Bear Listing Rule to the Fish & Wildlife Service for "additional explanation for the legal basis of its listing determination" that the Polar bear is a "threatened" not "endangered" species.

In essence, the court has asked the Fish & Wildlife Service to provide the court with its agency interpretation of "endangered species."  As previously discussed here, the Fish & Wildlife Service took the position in the Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation that "endangered species" means "in imminent danger of extinction," and argued that although the word "imminent" does not appear in the statutory definition, the structure and language in the statute compels such an interpretation.

In a 26-page Memorandum Opinion (PDF), the court concluded that "the statute is either silent or ambiguous with respect to the precise question at issue . . . ," and, contrary to the Fish & Wildlife Service's claim, "[t]he definition of an "endangered species" is . . . inherently ambiguous."  The court also rejected the argument that the legislative history supports the Fish & Wildlife Service's interpretation.

The court therefore remanded the Polar Bear Listing Rule to the Fish & Wildlife Service to provide its agency interpretation, and indicated that if that interpretation is reasonable, the court will be bound to defer to it under the Chevron doctrine.  However, the court cautioned that "should the agency determine upon review that no reasonable interpretation of the statute supports its existing 'threatened' designation for the polar bear, new rulemaking procedures may be warranted."

If the agency determines that to qualify for listing as an endangered species, a species must be in danger of imminent extinction throughout all or a significant portion of its range, it will set a high bar for species to qualify for full protection under the Endangered Species Act.

The Fish & Wildlife Service has until December 23, 2010 to submit the agency's supplemental explanation and supporting materials, if any, and the court set February 23, 2011 as the new hearing date on the pending cross-motions for summary judgment.  In the meantime, the current listing rule and Section 4(d) rule remain in effect.

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On November 2, 2010, the U.S. Fish and Wildlife Service (FWS) listed (PDF) the Georgia pigtoe mussel, the interrupted rocksnail and the rough hornsnail as endangered under the Endangered Species Act (ESA) and designated 160 miles of stream and river channels as critical habitat for the three species in Georgia, Alabama and Tennessee. The listing followed FWS’s determination that the species have experienced a significant curtailment in their freshwater habitats. FWS attributes the habitat loss to fragmentation and isolation of free-flowing rivers and tributaries, as well as increased vulnerability to water quality and habitat degradation.

FWS also proposed protection (PDF) for the rayed bean and snuffbox mussels, seeking comments from the scientific community and the public prior to finalizing the listing rule. Mississippi’s Bay Springs salamander, however, was denied protection (PDF) based on FWS’s determination that it is extinct. These species, as well as the pigtoe mussel, interrupted rocksnail and the rough hornsnail, are threatened by degradation of freshwater habitat due to dams, urban sprawl, and industrial and agricultural pollution.

Litigation surrounding the species may have prompted FWS’s actions; last February, the Center for Biological Diversity filed suit against FWS for failure to protect over 90 species, including the Bay Springs salamander. Critics assert that, despite its belief that the salamander is extinct, FWS should have listed the species to stimulate further surveys of the population since it is possible that some individuals remain.

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On October 18, 2010, Idaho Governor Butch Otter announced the State of Idaho would no longer manage wolves as a designated agent under the Endangered Species Act.  According to the Idaho Department of Fish and Game website, a January 2006 agreement between Idaho and the U.S. Department of the Interior designated the State as an agent for day-to-day wolf management for the Fish and Wildlife Service, but efforts to renew the agreement were unsuccessful.  In response to the Governor's action, the Service issued a press release (pdf) indicating it would once again be the lead agency for wolf management in Idaho.  Governor Otter registered his displeasure with the situation by issuing this statement.

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The U.S. Fish and Wildlife Service (“Service”) published a proposed rule (PDF) this week to reclassify the spikedace and loach minnows from threatened to endangered under the federal Endangered Species Act (“ESA”). The proposed rule also designates approximately 796 miles of streams and rivers in central and eastern Arizona and western New Mexico as critical habitat for the two fish.

Both the spikedace and the loach minnow are small fish that measure fewer than three inches in length. They inhabit shallow water in perennial streams. According to the Service, prolonged drought, anticipated effects of climate change, increasing abundance, and the expanding range of competitive and predatory nonnative fishes have increased the threat of extinction for both species. The proposed re-designation of critical habitat is the result of court challenges and a General Inspector audit of the 2007 rule. As for the reclassification, the Service had actually determined that listing the species as endangered was warranted in 1994, but reclassification was precluded by other higher priority listing actions.

The original listing rules, 2007 critical habitat rule, current habitat proposal, and recovery maps are available on the Service’s website. The public may submit comments on the proposed rule and relevant scientific and commercial information to the Service until December 27, 2010.
 

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