Article Describes Process to Complete Structured Effects Analysis under Section 7 of the Endangered Species Act

The February 2011 edition of Environmental Management includes an article I co-authored with Dr. Dennis Murphy entitled, The Route to Best Science in Implementation of the Endangered Species Act’s Consultation Mandate: The Benefits of Structured Effects Analysis.  The principle purpose of the article is to facilitate the development of rigorous effects analyses under the consultation provisions in section 7(a)(2) of the Endangered Species Act (ESA).  In the article, we "assess effects analysis as a tool for using best science to guide agency decisions under the Act."  After describing the role of effects analysis in the consultation process, "we propose a framework that facilitates identification and use of the best available information in the development of agency determinations," and that "includes three essential steps—the collection of reliable scientific information, the critical assessment and synthesis of available data and analyses derived from those data, and the analysis of the effects of actions on listed species and their habitats."  We then go on to both "warn of likely obstacles to rigorous, structured effect analyses and describe the extent to which independent scientific review may assist in overcoming these obstacles."  The article may be purchased from the publisher, here.  Or, if you are interested in obtaining a copy, please contact me, here


FEMA Settles Lawsuit Challenging Implementation of the National Flood Insurance Program in Florida

On January 20, 2011, the Federal Emergency Management Agency ("FEMA") proposed (pdf) to settle another lawsuit challenging its implementation of the National Flood Insurance Program ("Program"), agreeing to consult with the U.S. Fish & Wildlife Service and National Marine Fisheries Service (the "Wildlife Agencies") regarding the Program's potential impacts on five species of sea turtles listed under the federal Endangered Species Act. 

The Program, which is administered by FEMA, enables property owners in participating communities to purchase flood insurance at a subsidized rate.  See FEMA's Program Description (pdf).  Plaintiffs, the National Wildlife Federation and Florida Wildlife Federation, filed a complaint in July of last year alleging that FEMA violated Section 7 of the Endangered Species Act by failing to consult with the Wildlife Agencies regarding the Program's potential impacts on the loggerhead sea turtle, green sea turtle, hawksbill sea turtle, leatherback sea turtle, and Kemp's ridley sea turtle.  Section 7 requires federal agencies to, among other things, consult with the Wildlife Agencies to ensure that any action "authorized, funded, or carried out" by the agency is "not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [designated critical habitat]." 

Under the terms of the settlement agreement, FEMA has 15 days from the entry of a court order approving the proposed settlement to send the Wildlife Agencies a written request to initiate informal consultation.  Further, within 11 months of the entry of a court order, FEMA is required to prepare and submit a biological assessment to the Wildlife Agencies, along with a written request  to initiate formal consultation.

As noted in our post of July 14, 2010, similar lawsuits are currently pending in the the District of New Mexico, the Eastern District of California, and the District of Arizona.

Fish & Wildlife Service to Decide Whether the Walrus Should Be Listed as Endangered Due to Global Warming

The Fish and Wildlife Service (“Service”) is facing a court-ordered January 31 deadline to decide whether to propose recommending the Pacific walrus for the endangered species list under the Endangered Species Act (“ESA”). Earlier this month, the federal Marine Mammal Commission (“Commission”) issued a letter (PDF) to the Service recommending that it list the species as threatened. The Commission, which oversees marine mammal conservation policies carried out by federal regulatory agencies, cited loss of sea ice habitat as the most significant threat to the species’ population: “Without question, the warming of the Arctic is destroying, modifying, and curtailing walrus habitat and will continue to do so in the foreseeable future.” The Commission explained that the walrus relies on sea ice for foraging and giving birth. Further, the loss of sea ice will likely change the physical characteristics of the marine ecosystem in ways that may be detrimental to walruses. For example, Commission Vera Alexander, quoted in the Juneau Empire, states that without their ice platform, walrus cannot reach the best foraging areas; "[t]he nearshore assemlage of oragnisms is not useful for them." The species may also be subject to possible secondary threats including diseases, parasites, and predation. Meanwhile, the only significant direct take of walruses by humans is for subsistence purposes.  According to the Commission, current harvest levels may not be sustainable.  Finally, the Commission stated that environmental changes occurring in the Arctic are opening the region to an increase in human activity, such as oil and gas development, increased commercial shipping, and tourism that may lead to an additional and significant impact on walruses. The Commission concluded that the current regulatory regime is not sufficient to deal with the range of significant threats facing the population now and in the foreseeable future.

The possible listing recommendation comes as the result of a February 2008 petition by the Center for Biological Diversity to list the walrus as threatened or endangered. 


U.S. Fish and Wildlife Service to Review the Status of Six California Species

The U.S. Fish and Wildlife Service (“Service”) recently announced that it will conduct in-depth status reviews for six California species currently listed as threatened or endangered under the Endangered Species Act (ESA). The Service published (PDF) a 90-day finding in the Federal Register on January 19, 2011, concluding that a petition filed by Pacific Legal Foundation presented substantial scientific information indicating that delisting or reclassifying the species was warranted.

Pacific Legal Foundation petitioned the Service to delist the Eureka Valley evening primrose (Oenothera californica (avita) subsp. eurekensis) and Eureka Valley dunegrass (Swallenia alexandrae). The petition also requested that the Service reclassify the tidewater goby (Eucyclogobius newberryi), San Clemente Island broom (Lotus dendroideus var. traskiae), San Clemente Island bush mallow (Malacothamnus clementinus), and San Clemente Island Indian paintbrush (Castilleja grisea) from endangered to threatened. The petition was based on the analysis and recommendations contained in the Service’s most recent 5-year reviews of the species, which were completed in 2007.

Under the ESA, when a private individual or organization petitions the Service to list, delist, or change the status of a species, that triggers a 90-day period within which the Service must decide whether the action is supported by substantial information. Upon finding that a petition presents substantial information, within 12 months of receiving the petition, the Service conducts an in-depth review of the status of each species. The 12-month finding will determine whether delisting or reclassifying any of the six species is warranted.

The ESA also requires that the Service conduct status reviews of listed species at least once every 5 years. The Service has elected to conduct these 5-year reviews simultaneously with the 12-month status review triggered by its finding of substantial information in support of the proposed actions.

The Service’s notice announcing the reviews opened a 60-day comment period. Comments will be accepted until March 19, 2011. To ensure that review of the 6 species utilizes the best scientific and commercial data available, the Service is soliciting information about the status of the species.


Fish & Wildlife Service Revises Proposed Critical Habitat for the Sonoma County DPS of the California Tiger Salamander

The Fish and Wildlife Service (“Service”) announced this week that it has opened a 30-day comment period on revisions to the proposed critical habitat designation for the Sonoma County Distinct Population Segment of the California tiger salamander, and the associated draft economic analysis of the revised proposal. The Service previously revised the proposed critical habitat designation in August 2009 -- after originally proposing the designation in August 2005 -- based on a settlement agreement on the August 2005 proposal. In this week’s notice of availability (PDF), the Service has revised the proposed critical habitat designation to include 50,855 acres, a reduction of 23,368 acres from that proposed in 2009.  Areas proposed for critical habitat contain primary constituent elements needed by the salamanders, such as standing bodies of water for early life stages, upland habitat for the dry season, and accessible areas between occupied habitat so that the species can disperse. The Service explains that primary changes to the proposed critical habitat area include removing urban centers, most of the 100-year floodplain, and areas non-essential to the species from the proposed critical habitat boundary. The revised proposal is intended to align better with the Service's Santa Rosa Plain Conservation Strategy.  

Links to the relevant documents, including a map of the revised area, can be found on the Service’s website. The deadline to submit written comments is February 17, 2010. They may be submitted on-line at the Federal eRulemaking Portal: Follow the instructions for submitting comments to Docket No. FWS–R8–ES–2009–0044.  Comments may alternatively be submitted by mail or hand-delivery to: Public Comments Processing, Attn:( FWS–R8–ES–2009–0044)Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203. Faxes or email are not accepted.  Comments submitted previously do not need to be resubmitted.

The Service will publish the final rule by July 1, 2011.

U.S. Fish & Wildlife Service Declares Maguire Daisy Recovered

On January 18, 2011, after slightly more than a quarter-century of protection, the U.S. Fish & Wildlife Service ("Service") announced that it will be removing the Maguire daisy (Erigeron maguirei) from the list of threatened and endangered species.  The Service recently concluded that the daisy population, which in 1985 consisted of only seven known plants, is presently comprised of over 162,000 individual plants, and "no longer meets the definition of endangered or threatened under the Endangered Species Act of 1973."  The Maguire daisy is just the 21st species that has been delisted based upon a finding of recovery. 


Federal Judge Expands Critical Habitat for the Kangaroo Rat

On January 8, 2011, a federal district court overruled (pdf) a 2008 decision by the U.S. Fish and Wildlife Service (Service) to reduce the acreage of critical habitat designated for the San Bernardino kangaroo rat from 33,290 acres to 7,779 acres. The Service had initially designated the 33,290 acres in 2002, but decreased the amount (pdf) in 2008 after a lawsuit successfully challenged the designation. The district court’s ruling reinstates the area designated as critical habitat in the 2002 rule (pdf) in San Bernardino and Riverside counties until a revised designation is completed.

In the decision, the United States District Court for the Central District of California held that the Service had violated the Endangered Species Act (ESA) by improperly relying on “core populations” of the kangaroo rat to determine critical habitat. The court reasoned that the Service was required by the ESA to define critical habitat by evaluating the physical and biological features essential for the kangaroo rat’s conservation, rather than solely relying on habitat areas that support the species’ core populations.

Activities within areas designated as critical habitat for the species that also have a federal nexus may be subject to regulatory requirements that would not otherwise be imposed. According to the San Bernardino Sun, mitigation costs added approximately $650,000 to the Greenspot Road bridge project completed a few years ago in the habitat area. Two new bridges are slated to be built in the new critical habitat areas, with combined mitigation costs estimated at $2.4 million.

Federal Government Explains Guidelines Used To List Species as Threatened or Endangered

On December 22, 2010, the Department of Justice filed a supplemental brief (PDF) in the United States District Court for the District of Columbia explaining the guidelines used by the Fish and Wildlife Service (FWS) in deciding if a species should be listed as threatened or endangered under the Endangered Species Act (ESA).  The brief was filed in response to the court's request for a further explanation (PDF) regarding why FWS listed the polar bear as a threatened, and not an endangered, species.  Environmental groups had filed suit arguing the polar bear should be listed as endangered.  Center for Biological Diversity v. Salazar, No. 1:08-cv-2133 (D.D.C.).  The federal government's brief attached an explanation and analysis prepared by FWS.  In its memorandum, FWS said the ESA does not provide any quantitative measures for distinguishing between species that are threatened or endangered but FWS has generally relied on four criteria to determine whether a species qualifies as endangered.  The four criteria are: (1) the species is facing a catastrophic threat with an imminent and certain risk of extinction, (2) due to limited range or population size the species is vulnerable to extinction, (3) a species that was previously widespread has been reduced to critically low numbers or restricted ranges, and (4) a species that is still widespread has suffered ongoing reductions in its numbers or range as a result of factors that have not been abated.  FWS then stated the guidance provided by these four factors is not binding because listing determinations also require consideration of individual species characteristics.  As to the polar bear, FWS' memorandum argued it is not endangered because it is not currently on the brink of extinction since its present condition is stable or increasing in most of the populations for which data is available, and declining slightly in a minority of such populations.  "Overall, both its range and its numbers were relatively constant.”  The Plaintiffs have until January 18 to file a responsive brief and the court will decide the case thereafter.

Fish and Wildlife Service Introduces Plan to Save Native Species in the Florida Keys

Aiming to restore federally-listed species, whose long-term viabilities in the Florida Keys are currently threatened by predation from non-native species and human-subsidized populations of native predators, the Fish and Wildlife Service has prepared a draft Integrated Predator Management Plan/Environmental Assessment (“Plan/EA”) (PDF), which it made available for public comment today on its website.  The Service claims that predation by the domestic cat and other exotic non-native species has impacted populations of natives species in the Florida Keys Wildlife Refuges Complex. The Refuges Complex, which includes four separate refuges, provides habitat for more than 30 threatened and endangered species including the Key deer, Lower Keys marsh rabbit, and Key Largo woodrat.  Although the Plan/EA has garnered opposition from animal rights activists, refuge biologists quoted in the The Miami Herald say they are “just trying to even the natural playing field,” where the natural food chain has been upset by real estate development in the Florida Keys and the abandonment of unwanted pets. 

The Plan/EA, prepared to comply with the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and other federal laws and regulations, evaluates the environmental impacts of three alternative management actions for reducing predation on the listed species: (1) no action; (2) integrated predator management (the proposed action), which includes live trapping of cats and humane euthanizing of other predators; and (3) lethal control only.  Successfully implementing the proposed action, particularly in the National Key Deer Refuge, which includes public lands intermixed with private residential and commercial areas, will require a collaborative public and private effort on adjacent lands by a diversity of land managers and stakeholders, including Monroe County, Florida Fish and Wildlife Conservation Commission, animal control service providers, animal advocacy groups, wildlife rescuers, environmental organizations, private landowners, and responsible pet owners. 

The Service has invited public comments on the Plan/EA through February 3, 2011. Written comments may be submitted by email to, fax to (305) 872-3675, or regular mail to Anne Morkill, Florida Keys National Wildlife Refuge, 28950 Watson Blvd., Big Pine Key, Florida 33043.