Supreme Court Declines to Review Endangered Species Act Economic Impact Cases

The U.S. Supreme Court has denied (pdf) two petitions that sought to have the Court resolve a Circuit split regarding the evaluation of economic impacts of critical habitat designations under the federal Endangered Species Act.  The Court’s action leaves in place two recent decisions by the United States Court of Appeals for the Ninth Circuit upholding the use of the so-called “baseline” methodology by the U.S. Fish and Wildlife Service ("Service").  Under the “baseline” methodology, the Service restricts the evaluation of economic impacts of a potential critical habitat designation to the impacts of the designation alone and does not consider the cumulative impact of the critical habitat designation and the listing of the endangered species.  Arizona Cattle Growers' Assn. v. Salazar, 606 F.3d 1160 (9th Cir. 2010) (pdf); Home Builders Assn. of Northern California v. U.S. Fish & Wildlife Serv., 616 F.3d 983 (9th Cir. 2010) (pdf). 

In sharp contrast to the above cases, the United States Court of Appeals for the Tenth Circuit invalidated the Service’s use of the “baseline” methodology.  New Mexico Cattle Growers Ass'n v. U.S. Fish & Wildlife Serv., 248 F.3d 1277 (10th Cir. 2001) (pdf).  The Tenth Circuit held that the Service’s use of the “baseline” methodology rendered an economic analysis relying on the baseline approach "virtually meaningless" because it allowed the agency, in all cases, to find no economic impact to the critical habitat designation.  As a result, in states within the Tenth Circuit, the Service evaluates the “co-extensive” economic impacts of listing and the critical habitat designation.  Use of the “co-extensive” methodology typically results in much higher estimates of economic impacts.

House Passes Bill to Cutoff Funding for Water Supply Restrictions Imposed by Federal Wildlife Agencies

The U.S. House of Representatives passed H.R. 1 (pdf), a spending bill, on February 19, 2011, that includes a rider to foreclose use of funds appropriated by Congress to implement Reasonable and Prudent Alternatives (RPAs) developed by the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) to accompany biological opinions and jeopardy determinations made by those agencies under the federal Endangered Species Act regarding the ongoing operation of the Central Valley Project and State Water Project in California.  The biological opinions, jeopardy determinations, and RPAs presently are being challenged in multiple lawsuits brought in federal court.  Last year, the United States District Court for the Eastern District of California held (pdf) that the FWS biological opinion (pdf) is unlawful, and the Court remanded the document to that agency.  Pending in the same Court are cross motions for summary judgment respecting the NMFS biological opinion (pdf).

The rider does not purport to amend the federal Endangered Species Act, and it also does not affect the California Endangered Species Act.  As a result, the water supply and species protection implications that would stem from enactment of the rider into law are unclear.

DFG Opens Comment Period on Adding Mountain Yellow-Legged Frog to California's Endangered Species List

The Department of Fish and Game (“DFG”) is now accepting comments on a proposal to add northern and southern variants of the mountain yellow-legged frog to the endangered species list under the California Endangered Species Act ("CESA"). The proposal comes as a result of a petition by the Center for Biological Diversity submitted in 2010.  Comments received on the proposal by March 18, 2011 will be included in a status evaluation report that DFG plans to submit to the Fish and Game Commission ("Commission") addressing existing threats to the species and the effectiveness of current regulations regarding the species.  The report is due to be completed at or before the September 2011 Commission meeting. 

The mountain yellow-legged frog occurs in the southern Sierra Nevada and mountains of southern California. The species' habitat includes sunny riverbanks, meadow streams, isolated pools, and lake borders in the Sierra Nevada and rocky stream courses in southern California. Currently, the Fish and Wildlife Service lists the southern California species as endangered under the federal Endangered Species Act ("ESA").  The northern variant is listed as a candidate species.

All comments on the state listing proposal must be received by DFG by 5:00 p.m. on Friday, March 18, 2011. The public will also have a 30-day comment period after issuance of the report in September.


FEMA Settles Another Lawsuit Challenging Implementation of the National Flood Insurance Program

On February 11, 2011, the United States District Court for the District of New Mexico approved a stipulated settlement agreement (pdf) between the Federal Emergency Management Agency ("FEMA") and WildEarth Guardians, obligating FEMA to, among other things, request that the U.S. Fish & Wildlife Service ("Service") initiate formal consultation on the impacts of the National Flood Insurance Program (the "NFIP") in New Mexico.

The NFIP, which is administered by FEMA, enables property owners in participating communities to purchase flood insurance at a subsidized rate.  In 2001, the Sierra Club, Southwest Environmental Center, and WildEarth Guardians, formerly known as Forest Guardians, filed a lawsuit (pdf) in federal court alleging that FEMA was violating section 7 of the federal Endangered Species Act ("ESA") by failing to consult on the impacts of the NFIP on ESA-listed species.  In 2002, the parties executed a stipulated settlement agreement (pdf) obligating FEMA to, among other things, prepare and submit a biological assessment to the Service on the effects of the NFIP and initiate consultation with the Service "as expeditiously as possible."  In 2009, WildEarth Guardians filed a second lawsuit (pdf) seeking to enforce the terms of the 2002 settlement agreement, and FEMA's compliance with section 7 of the ESA.  Section 7 requires a federal agency to, among other things, consult 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 2011 settlement agreement, FEMA has 365 days to send the Service a written request to initiate formal consultation. 

This is the second ESA lawsuit that FEMA has settled this year.  See our post of January 28, 2011.  Two similar lawsuits are currently pending in the District of Arizona and the Eastern District of California.  See our post of July 14, 2010.

Fish and Wildlife Service Issues Proposed Rule to Reclassify Wood Bison From Endangered to Threatened

The Fish and Wildlife Service (“Service”) recently announced  (pdf) a proposed rule to reclassify the wood bison (Bison bison athabascae) from endangered to threatened under the Endangered Species Act (“ESA”). After completing a 12-month status review, the Service found that threats still affect the wood bison, with the largest threat being the loss of habitat caused by agricultural development, the presence of diseased wood bison and cattle herds on habitat that could be restored with disease-free herds, and the commercial production of plains bison in historical wood bison habitat. However, the Service found that these threats were not of sufficient imminence, intensity, or magnitude to indicate that the wood bison is presently in danger of extinction given the increase in the number of herds and population sizes, the ongoing management of the species, and protections provided by law. They therefore found that the wood bison is not endangered. Because threats to the wood bison still exist, however, the Service determined that the reclassification of the wood bison from endangered to threatened was warranted.

The wood bison is a relative of the American plains bison. Historically, the wood bison occupied Canadian ranges north of the plains bison. All wild wood bison presently are found in northwestern Canada. While woods bison populations were once estimated at about 168,000, the subspecies was nearly eliminated by the late 1800s. Like the plains bison, overharvest is estimated to be the major cause for the wood bison’s decline.


ESA section 4(f) generally directs the Service to develop and implement recovery plans for endangered and threatened species, but no such plan has been instituted for the woods bison because no wild populations currently exist in the United States. However, in Canada, the National Wood Bison Recovery Team (“NWBRT”) published a national recovery plan. This plan established four primary goals: (1) reestablish at least four discrete, free-ranging, disease-free, and viable populations of 400 or more wood bison in Canada; (2) foster the restoration of wood bison in other parts of their original range and in suitable habitat elsewhere; (3) ensure that the genetic integrity of wood bison is maintained without further loss as a consequence of human intervention; and (4) restore disease-free wood bison herds.


In 1978, there was only one free-ranging, disease-free herd with 300 individuals. However, a status review in 2000 revealed that the number of disease-free herds had increased to six, and the total population had grown to approximately 2,800 individuals. Since 2000, an additional disease-free, free-ranging herd has been established, bringing the total number of herds to seven and the total number of disease-free, free-ranging wood bison to approximately 4,400. Four of the seven existing herds have populations of 400 or more, thus meeting the NWBRT’s first recovery goal. There are also four captive herds that have been established, though only three of those herds are currently viable.


The NWBRT previously petitioned the Service to reclassify the wood bison from endangered to threatened on November 26, 2007. After issuing a 90-day finding  (pdf) concluding that the petition presented substantial scientific and commercial information indicating that reclassification may be warranted, the Service initiated a status review. The proposed reclassification of the wood bison constitutes the Service’s 12-month finding on the petition to reclassify. The Service is seeking public comments on the proposed rule. Written comments must be received by April 11, 2011, and written requests for a public hearing must be received by March 25, 2011.


Pacific Walrus Designated as a "Candidate" for Endangered Species Protection

The Fish and Wildlife Service (“Service”) announced (PDF) that despite a finding (PDF) that sufficient scientific and commercial data exist to warrant protecting the Pacific walrus under the Endangered Species Act ("ESA"), an official rulemaking to propose that protection will be postponed because of the need to address “other higher priority species.”  Instead, the Service will review the walrus’ status as a candidate species annually.  The finding confirms claims made by the federal Marine Mammal Commission and a petition by the Center for Biological Diversity that the walrus is threatened by the loss of sea ice in its arctic habitat due to climate change (see earlier post).  Although the Pacific walrus will not receive protection under the ESA, the species is currently protected by the Marine Mammal Protection Act of 1972, which affords protections similar to those under the ESA and includes prohibitions on the harvest, import, export, and interstate commerce of the walrus or walrus products.

EPA to Study Impacts of Contaminants on the San Francisco Bay/Sacramento-San Joaquin Delta Estuary

On February 10, 2011, EPA Region 9 issued an Advanced Notice of Proposed Rulemaking for Water Quality Challenges in the San Francisco Bay/Sacramento-San Joaquin Delta Estuary ("Advanced Notice") (pdf).  EPA is not proposing any specific Clean Water Act ("CWA") rulemaking at this time.  Instead, EPA proposes to assess "the effectiveness of current programs designed to protect water quality and aquatic species habitat in the San Francisco Bay / Sacramento-San Joaquin Delta in California . . . ."  Fact Sheet (pdf).  According to EPA Region 9 Administrator Jared Blumenfeld, EPA is soliciting public comment to assist EPA in "trying to identify gaps in state and federal water quality programs" that may affect, among other things, aquatic species such as salmon and delta smelt that have been listed as threatened or endangered under the federal Endangered Species Act and/or the California Endangered Species Act.

According to Blumenfeld: "In particular, we are looking at the effects of pesticides, ammonia and selenium on the estuarine habitat.  Pesticides – whether applied indoors or outdoors to control rodents, insects and weeds – can reach the Delta and harm fish and humans alike.  Ammonia from sewage treatment plants and fertilizers adds excessive nitrogen to the water, inhibiting the growth of plant plankton at the base of the food web.  Selenium is a naturally occurring element, but irrigation runoff and oil refinery discharges can increase its concentrations to toxic levels."

According to EPA, further study is needed because "[p]resent water quality in the Bay Delta Estuary reflects the cumulative and interactive effects of multiple physical, chemical and biological stressors, including sewage flows, storm water discharges, agricultural return flows, urban and agricultural pesticide application, water diversions, habitat degradation and non-native species."

EPA intends to use the comments to make recommendations for future actions that compliment other actions in the Delta, such as the Bay Delta Conservation Plan, the Delta Actions Resolution jointly adopted by the State Water Resources Control Board and the Central Valley and San Francisco Regional Water Quality Conrol Boards, and the recent, controversial wastewater discharge permit (pdf) issued by the Central Valley Regional Water Quality Control Board which imposes more stringent limits on the discharge of ammonia from the Sacramento Regional Wastewater Treatment Plant into the Sacramento River.

Comments can be submitted at the Federal Rulemaking Portal ( identified by docket EPA-R09-OW-210-0976 or by sending hardcopy to Erin Foresman, U.S. Environmental Protection Agency, 75 Hawthorne Street, San Francisco, CA 94105.

Fish and Wildlife Service Issues New Rule Designating Critical Habitat for the Arroyo Toad

On February 7, the Fish and Wildlife Service issued a press release announcing a new final rule designating critical habitat for the arroyo toad (Anaxyrus californicus).  The rule (pdf) designates about 98,366 acres of land as critical habitat ranging from portions of Santa Barbara County in the north to San Diego County in the south.  By comparison, the prior final rule, available here (pdf), designated about 11,695 acres of land as critical habitat.  The Service excluded approximately 11,697 acres of land subject to final habitat conservation plans, tribal lands, military lands, and lands subject to a river management plan under section 4(b)(2) of the Endangered Species Act.  But, notably, the Service declined to exclude large areas of land covered by final, permitted conservation plans, such as the Western Riverside Habitat Conservation Plan, because the areas are not permanently conserved and managed even where the arroyo toad is covered by such plans.  A status review of the species was completed in 2009 and is available here (pdf).  With the rule change, the Service also changed the taxonomic nomenclature of the species from Bufo californicus to Anaxyrus californicus.

18 Members of Congress Claim Pesticide BiOps Rely on Faulty Analysis and Ignore Best Available Information

Sacramento River and Adjacent FarmlandIn a letter to the President's Council on Environmental Quality (CEQ), 18 members of Congress urged the Obama Administration to "ensure that NMFS, EPA, the Department of the Interior, USDA, and DOJ work together" to strengthen the modeling and to use the best scientific and commercially available information to re-evaluate existing biological opinions (BiOps) and to inform forthcoming BiOps for EPA pesticide registrations.

The members of Congress claim that the existing BiOps, which prohibit the application of certain pesticides to cropland within certain buffer zones adjacent to streams, rivers, wetlands, and floodplain habitat to protect threatened and endangered salmon and steelhead, "will force family farmers out of business and devastate rural communities and trade throughout the districts we represent, while crippling our food production capacity for the foreseeable future."  According to the authors, the BiOps issued to date expand existing buffer zones to such a great extent that "it would affect millions of acres in the Northwest and California, including a staggering 61 percent of farmland in Washington state and 55 percent in Oregon."

The 18 members of Congress argue that the consultation process between the National Marine Fisheries Service (NMFS) and EPA for the first of the pesticide BiOps (issued in November 2008) was flawed because it lacked transparency, consultation with the agricultural community, and the opportunity for public comment.  More fundamentally, they argue that NMFS's consultation for all three of the existing BiOps ignored the best available scientific and commercial data on the prevalence of the pesticides in salmon spawning waterways.

The letter's authors cite a September 2008 letter from EPA's Director of Pesticide Programs to NMFS, which criticized the July 31, 2008 draft BiOp for failing to disclose NMFS's rationale for its determination that use of chlorpyrifos, diazinon, and malathion will jeopardize the continued existence of dozens of listed salmonids in California, Oregon, Washington, and Idaho.  In the September 2008 letter, EPA also complained that it could not meaningfully discuss the proposed Reasonable and Prudent Alternative because the BiOp "fails to identify a level of exposure to these pesticides that would not result, in NMFS['s] opinion, in jeopardy to the species."

As explained in more detail below, the letter's authors are especially concerned that the administration orchestrate future interagency consultations as well as consultations with the agriculture industry and other stakeholders because EPA faces a host of other court-mandated deadlines to determine whether other pesticide registrations may affect listed species, and if so, to consult.

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U.S. Fish & Wildlife Service Agrees to Reconsider Status of Longfin Smelt

On February 2, 2011, the United States District Court for the Northern District of California approved a settlement agreement (pdf) between the U.S. Fish & Wildlife Service ("Service"), the Center for Biological Diversity, and The Bay Institute, obligating the Service to reconsider the status of the longfin smelt (Spirinchus thaleichthys), including the San Francisco Bay-Delta population.  Under the terms of the settlement, the Service must conduct a rangewide review of the species and issue a new listing determination by September 30, 2011.

The species has a range from Monterey Bay, California to Prince William Sound, Alaska, and there are two known, landlocked populations.  Across much of that range, longfin smelt are abundant.  But abundance data indicate that the San Francisco Bay-Delta population has declined substantially.

In 2009, the Service issued a 12-month finding (pdf) concluding that the Delta population of the longfin smelt did not meet the definition of a distinct population segment, and therefore did not qualify for listing under the federal Endangered Species Act.  Shortly thereafter, the Center for Biological Diversity and The Bay Institute filed a lawsuit challenging the Service's decision.  Today's settlement provides the Service with an opportunity to review the petition and make a determination in light of the best scientific and commercial data currently available.

In March 2009, the California Fish and Game Commission voted to list the longfin smelt as a threatened species (pdf) under the California Endangered Species Act.  The California Department of Fish and Game prepared a status review of the species recommeding state listing in January 2009, which is available here.