Oregon and Washington Agree to Suspend Lethal Removal of Sea Lions

The states of Oregon and Washington have agreed to suspend the lethal removal of California sea lions caught eating endangered salmon and steelhead just below the Bonneville Dam on the Columbia River. The sea lion removal program had been implemented to reduce the number of sea lions that prey on salmon and steelhead listed as endangered under the Endangered Species Act. According to the National Marine Fisheries Service (NMFS), the sea lions have a significant effect on the ability of the fish stocks to recover. The agreement was reached between wildlife advocates, including the Humane Society of the United States and the Wild Fish Conservancy, NMFS, and the states Oregon and Washington.

Last November, the United States Court of Appeals for the Ninth Circuit held that NMFS had violated the Marine Mammal Protection Act by failing to adequately explain its finding that sea lions were having a “significant negative impact” on the decline or recovery of salmonid species. After addressing the problems identified by the Ninth Circuit, NMFS authorized the states to resume lethally removing certain sea lions earlier this month.

The Humane Society and the Wild Fish Conservancy filed suit on May 20, 2011 challenging NMFS’s recent authorization. According to the Wall Street Journal, the Humane Society had expected to pursue a temporary restraining order, but the parties agreed to the stipulation so that the case could be heard on the merits, rather than on an emergency basis. (Wall Street Journal, May 25, 2011, by Joel Millman.) The agreement suspends any removal of sea lions through September 2011.

Fish and Wildlife Service Soliciting Comments for Five Year Review for Several California Species

The Fish and Wildlife Service is initiating a five-year review of 53 species under the Endangered Species Act.  The subject-species consist mainly of various frogs, butterflies, moths, snakes and lizards, including the El Segundo blue butterfly, San Francisco garter snake, California red-legged frog, California tiger salamander (Central), Western snowy plover, Longhorn fairy shrimp, and Vernal pool fairy shrimp.  Several plant species are also under review.  The purpose of the five-year review is to determine whether any of the species should be removed from the endangered species list, or reclassified from threatened to endangered or vice versa. 

The Service is seeking new information on the species relating to the species' biology, habitat conditions, any conservation measures that have been implemented to protect the species, threat status and trends, as well as other relevant information, such as improved analytical methods. 

Comments should be submitted by July 25, 2011.  The address for submitting comments varies by species and can be found on the notice (PDF)


Departments of the Interior and Commerce Outline Proposed Changes to Endangered Species Act Programs as Part of Government-Wide Regulatory Reform Effort

The White House recently unveiled plans to improve the federal regulatory system developed in response to an Executive Order issued by President Obama, which include a proposal by the Fish and Wildlife Service and National Marine Fisheries Service to improve administration of the Endangered Species Act (ESA).  The proposal is reproduced in Departmental workplans submitted by both Interior (pdf) and Commerce (pdf).  It includes the following actions:

  • Minimize requirements for written descriptions of critical habitat boundaries in favor of map- and internet-based descriptions. Map- and internet-based descriptions are clearer and more accessible methods of showing critical habitat boundaries. Additionally, reducing written boundary description requirements will save taxpayer money.
  • Clarify, expedite, and improve procedures for the development and approval of conservation agreements with landowners, including habitat conservation plans, safe harbor agreements, and candidate conservation agreements.
  • Expand opportunities for the states to engage more often and more effectively in the implementation of the ESA’s various provisions, especially those pertaining to the listing of species.
  • Review and revise the process for designating critical habitat to design a more efficient, defensible, and consistent process.
  • Clarify the definition of the phrase “destruction or adverse modification” of critical habitat, which is used to determine what actions can and cannot be conducted in critical habitat.
  • Clarify the scope and content of the incidental take statement, particularly with regard to programmatic actions or other actions where direct measurement is difficult. An incidental take statement is a component of a biological opinion that specifies the impact of an incidental taking of an endangered or threatened species and provides reasonable and prudent measures that are necessary to minimize those impacts. Greater flexibility in the quantification of anticipated incidental taking could reduce the burden of developing and implementing biological opinions without any loss of conservation benefits.

In addition, both the Departments of the Interior and Commerce propose to craft a multi-faceted strategy to address the challenge of the conservation of endangered species and the administration of the Federal Insecticide, Fungicide, and Rodenticide Act.  Early media coverage of the Administration's effort include this article.  (The Hill, May 26, 2011, by Andrew Restuccia.)

National Marine Fisheries Service Authorizes Lethal Removal of California Sea Lions

The National Marine Fisheries Service (NMFS) has authorized (pdf) the states of Washington and Oregon to lethally remove California sea lions that eat thousands of endangered salmon and steelhead just below the Bonneville Dam on the Columbia River. According to NMFS, the small number of sea lions that prey on salmon and steelhead listed as endangered under the Endangered Species Act (ESA) have a significant effect on the ability of the fish stocks to recover. While the population of California sea lions is considered healthy and stable, the population of salmon and steelhead continues to decline – the authorization will allow state fisheries and natural resources agencies to reduce the sea lions’ effect on these vulnerable salmonid species.

NMFS originally gave the states authorization under the Marine Mammal Protection Act (MMPA) in 2008 to permanently remove identifiable sea lions that were feeding on ESA-listed fish. Environmental organizations brought suit to challenge the action in 2009. Last November, the Ninth Circuit Court of Appeals held that NMFS had violated the MMPA by failing to adequately explain its finding that sea lions were having a “significant negative impact” on the decline or recovery of salmonid species. NMFS believes the memorandum decision (pdf) issued in support of the authorization addresses the problems identified by the court.  According to the Seattle Times, however, the Human Society of the United States, an environmental organization that was a party to the 2009 litigation, filed suit today in federal district court challenging the new authorization.  (The Seattle Times, May 20, 2011, by William McCall.)

Court Stays Approval of Proposed Settlement to Address Species Backlog

On May 17, 2011, the U.S. District Court for the District of Columbia stayed its approval of a proposed settlement agreement (Agreement) aimed at expediting findings related to petitions to list 251 species. The Center for Biological Diversity (Center) opposed approval of the Agreement after being left out of the negotiation process.

As we previously reported, plaintiff WildEarth Guardians (Guardians) entered into the Agreement with the Secretary of the Interior and the U.S. Fish and Wildlife Service (Service), under which the Service agreed to a six-year work plan to address 251 species listed as candidate species on the 2010 Candidate Notice of Review (pdf) in the Federal Register.  In return, Guardians agreed not to bring further litigation to enforce statutory deadlines under the Service’s Listing Program. Guardians also agreed to limit the amount of petitions it submits each fiscal year for the duration of the Agreement.

The Center expressed frustration that it only learned of the negotiations for the first time upon the parties’ filing of their joint motion for approval of the Agreement. The Center argues that the obligations imposed on the Service are unenforceable, and it characterizes the Agreement as illusory. The Center also claims that the Agreement is contrary to public policy because: (1) it undermines other purposes of the Listing Program; and (2) its overall effect would be to stymie petitions and lawsuits to enforce the ESA’s statutory deadlines, in contravention of the ESA, which expressly provides citizens with the right to petition for species listings and to seek the Service’s action on such petitions within the ESA’s statutory deadlines.

The court has scheduled a Status Conference for June 20, 2011, at which time it will review the progress made towards crafting a new agreement, as well as address the need to continue the litigation.

Representatives Nunes, Denham, and McCarthy Introduce Bill to Address Water Project Operations in California's Sacramento-San Joaquin Delta

On May 11, Representatives Nunes, Denham, and McCarthy introduced H.R. 1837 (pdf) "to address water-related concerns on the San Joaquin River, and for other purposes."  A section by section analysis is available here (pdf).

Title I of the bill includes a number of proposed amendments to the Central Valley Project Improvement Act (CVPIA), 106 Stat. 4706.  Among other things, it eliminates non-native fish including striped bass from the list of "anadromous fish" that are protected by the CVPIA and it facilitates water transfers.  This title also:

  • specifies that all Endangered Species Act (ESA) requirements will be met for operation of the Central Valley Project (CVP) and State Water Project (SWP) if they are operated in a manner consistent with the 1994 Bay-Delta Accord,
  • directs the Secretaries of the Interior and Commerce to issue biological opinions for CVP and SWP operations that are no more restrictive than the provisions of the Bay-Delta Accord,
  • preempts any state requirements for the protection of ESA listed species that is more restrictive than the requirements of this section, and
  • preempts any state restriction imposed on take or harvest of nonnative species.

Title II of the bill repeals the San Joaquin River Restoration Settlement Act.  Further, it requires the Secretary of the Interior to recognize hatchery-spawned species when making any determination under the Endangered Species Act that relates to anadromous fish in the Sacramento and San Joaquin Rivers and their tributaries.  In a prior blog post, we reported on a bill introduced by Representatives Cardoza and Costa, H.R. 1251, entitled the More Water for our Valley Act, which would also alter restrictions on CVP and SWP operations.

Obama Administration Withdraws Controversial Solicitor Opinion

On May 4, 2011, the Solicitor for the U.S. Department of the Interior withdrew (pdf) a controversial 2007 opinion (pdf) (the Opinion) that was recently criticized and rejected by federal courts in Montana and Arizona.  The Opinion provided an interpretation of the phrase "in danger of extinction throughout all or a significant portion of its range" (the SPR phrase). This phrase is key for listing determinations under the federal Endangered Species Act (ESA), as an "endangered species" is defined as "any species which is in danger of extinction throughout all or a significant portion of its range."  The Opinion concluded that:

  1. The SPR phrase is a substantive standard for determining whether a species is an endangered species--whenever the Secretary concludes because of the statutory five-factor analysis that a species is "in danger of extinction throughout . . . a significant portion of its range," it is to be listed and the protections of the ESA applied to the species in that portion of its range where it is specified as an "endangered species";
  2. the word  "range" in the SPR phrase refers to the range in which a species currently exists, not to the historical range of the species where it once existed;
  3. the Secretary has broad discretion in defining what portion of a range is "significant" and may consider factors other than simply the size of the range portion in defining what is "significant"; and
  4. the Secretary's discretion in defining "significant" is not unlimited; he may not, for example, define "significant" to require that a species is endangered only if the threats faced by a species in a portion of its range are so severe as to threaten the viability of the species as a whole.

Thus, instead of defining an endangered species by its historical range, the Opinion concluded that a species could be listed, or de-listed, based on the status of the species in its current range.  As such, the Opinion purported to authorize the listing or de-listing of portions of a species or a distinct population segment on the basis of spatial (or geographical) considerations.  

The legitimacy of the Opinion rose to the forefront as a result of the litigation surrounding the decision by the U.S. Fish and Wildlife Service (Service) to de-list the gray wolf in Montana and Idaho.  In Defendants of Wildlife v. Salazar (pdf), a federal district court held that the Service's de-listing of the gray wolf in the states of Montana and Idaho, while leaving federal protections in place for wolves in Wyoming, violated the ESA.  The district court found that the entire region's wolf population must be listed under the ESA, rather than the wolf's status varying from state to state.  Accordingly, the de-listing decision was invalidated.

As a result of this decision, Congress passed the first ever bill to effectively de-list a species listed as endangered or threatened under the ESA.  See our posts of December 7, 2010 and April 14, 2011.

While it is not clear how the withdrawal of the Opinion will impact listing decisions in the future, the notice issued by the Solicitor states that the Service intends to "reconsider how it applies the SPR phrase and to develop guidance on how to apply the SPR phrase in making decisions to add or remove species from the lists of threatened and endangered species."


Fish and Wildlife Service Withdraws Proposal to List Mountain Plover

The U.S. Fish and Wildlife Service ("Service") announced that the mountain plover, a small native bird inhabiting open, flat lands with sparse vegetation, does not warrant protection under the Endangered Species Act (ESA). 

Mountain plovers breed in the western Great Plains and Rocky Mountain States from extreme southern Canada to northern Mexico.  Within the United States, most breeding occurs in Montana, Wyoming, and Colorado; fewer breeding birds occur in Kansas, Nebraska, New Mexico, Oklahoma, Texas, and Utah.  Mountain plovers winter mostly in California, southern Arizona, Texas, and Mexico.  California’s Sacramento, San Joaquin, and Imperial valleys support the greatest known number of wintering mountain plovers. 

The Service based its decision on several key factors, including the following:

  • Its current estimate of the mountain plover breeding population is over 20,000 birds, more than double the estimate cited in the Service’s 2002 proposed rule to list the species as threatened under the ESA; 
  • The species’ geographically widespread breeding and wintering ranges and its ability to use a variety of habitats contributes to its security;
  • Mountain plovers have adapted to many human activities, such as using crop fields for breeding and wintering; and 
  • Human land use changes, alone or in combination with climate change, are not likely to result in significant population-level impacts to the mountain plover in the foreseeable future.

The Service also discussed the potential impacts of loss or degradation of mountain plover habitat, which has generally been identified as the greatest potential threat to the species.  The mountain plover’s diverse habitats are subject to anthropogenic changes, including cattle grazing and mineral and energy development as well as the loss of agricultural lands to solar energy development in the San Joaquin and Imperial valleys.  However, the Service found these threats are generally localized and are not likely to result in significant population-level impacts to the species.

The Service’s determination satisfies its obligation under a 2009 settlement agreement entered into with Forest Guardians (now WildEarth Guardians) and the Biological Conservation Alliance for their claim challenging the Service’s 2003 withdrawal of a 2002 proposal to list mountain plover under the ESA.  The settlement agreement required the Service to reinstate the 2002 proposal, receive public comment on the proposal, and prepare a final rule by May 1, 2011.  This withdrawal constitutes the Service’s final action. 

Click here to read the full Withdrawal of the Proposed Rule to List the Mountain Plover as Threatened.


Proposed Settlement Agreement Includes Work Plan to Address Endangered Species Listing Process

The U.S. Fish and Wildlife Service (Service) announced that it has developed a six-year work plan that would allow the Service to systematically review and address the needs of more than 250 species currently listed as candidate species for protection under the Endangered Species Act (ESA). The work plan is part of a settlement agreement (PDF) between the Service and WildEarth Guardians (WildEarth) that will be filed in a consolidated case in the U.S. District Court for the District of Columbia.

While the Candidate List was envisioned as an administrative tool that would identify species for which the Service would shortly make listing decisions, the dramatic increase of listing petitions and lawsuits has led to a backlog of species on the list. The Service has received petitions to list more than 1,230 species in the last four years – nearly as many petitions as the amount of species listed under the ESA in the previous 30 years. The work plan provides a schedule for making listing determinations for current candidates species, and it includes some species that have been petitioned for protection under the ESA.

Continue Reading...

National Research Council Issues Report on the Draft Bay Delta Conservation Plan

On May 5, 2011, an ad hoc panel appointed by the National Research Council (NRC) issued a report titled “The Review of the Use of Science and Adaptive Management in California’s Draft Bay Delta Conservation Plan” (pdf). The NRC is a division of the National Academies, and the panel it appointed developed the report in response to requests from the Department of Commerce and the Department of the Interior. The report provides an independent scientific assessment of the draft Bay Delta Conservation Plan (BDCP) issued November 18, 2010 .

In general, while recognizing the BDCP’s potential as a tool for helping to solve California’s chronic water problems, the panel found the draft BDCP to be incomplete and unclear in a variety of ways. As an initial matter, the panel identified the lack of an effects analysis as a crucial missing element from the draft plan. The panel further determined that a lack of clarity existed with respect to whether the BDCP is an application for the incidental take of listed species, or a comprehensive conservation strategy intended to restore ecological functions and improve water supply reliability. The panel also noted that, even if the BDCP is limited to an application for an incidental take permit, it still lacks an analysis of water conveyance alternatives and the reasons why such alternatives are not being utilized.

In addition, the panel opined that many scientists have recognized that significant environmental factors, other than water exports, have potentially large effects on fish listed under the Endangered Species Act (ESA) in the Delta. The panel also noted that there remains considerable uncertainties regarding the degree to which different aspects of flow management in the Delta, especially salinity management, affect survival of the ESA-listed fishes. Accordingly, the panel supports the concept of a quantitative evaluation of the significance of these stressors, ideally using life-cycle models, as part of the BDCP.

FEMA and NMFS Hold Conference "Demystifying" Compliance with the Endangered Species Act

On March 1-2, 2011, the Federal Emergency Management Agency and National Marine Fisheries Service held a two-day conference entitled "Demystifying National Flood Insurance Program Alignment with the Endangered Species Act."  The agenda for the conference and associated materials are provided below. 

Full Conference Agenda (PDF)

Glossary of Terms (PDF)

Compliance Options (PDF)

Importance of Healthy Floodplains by NMFS (PDF)

The Importance of Floodplains to Functioning River Ecosystems (PDF)



Additional Resources (PDF)

Comment Period Announced For New Information on Northern Spotted Owl

The U.S. Fish and Wildlife Service (Service) recently announced that it was opening a 30-day public comment period on updated information for the draft revised recovery plan for the threatened northern spotted owl (Strix occidentalis caurina). This announcement follows the completion of a new computerized modeling tool developed for assessing spotted owl habitat quality and population dynamics. It also predicts the effectiveness of different conservation measures.

The new modeling tool synthesizes more than 20 years of demographic data regarding the spotted owl, including information from regional experts throughout the spotted owl’s range in Washington, Oregon, and California. It uses this information to provide recovery partners with the most accurate rangewide picture of where spotted owls nest and roost and where they are likely to do so in the future. The result is that recovery partners can see what areas are most important to the spotted owl’s continued survival and recovery. The modeling tool will also allow recovery partners and land managers to evaluate the long-term implications of specific recovery actions.

The draft revised recovery plan was initially released in September 2010. The modeling tool was incomplete during the original 90-day comment period, which elicited great concern and criticism that the draft plan did not rely on the best available science. The original Appendix C on habitat modeling contained initial maps showing suitable spotted owl habitat at different levels of quality. While this information served as the underlying data allowing for evaluation of different conservation measures, the updated Appendix C includes more information no how the modeling tool allows the Service to compare potential spotted owl population responses to different habitat management scenarios and conservation measures.

The 30-day comment period on the new information ends on May 23, 2011. Pursuant to a federal court order resulting from previous litigation over the recovery plan, the Service must complete its final revised recovery plan by June 1, 2011. This has created concerns that the Service will not have adequate time to respond to any comments submitted during the review period.

Court Enjoins Shasta Valley and Scott River Watershed Permitting Programs

On April 20, 2011, the San Francisco Superior Court issued a peremptory writ of mandate (PDF) enjoining the California Department of Fish and Game (DFG) from implementing a pilot program to facilitate recovery of the Klamath Basin coho salmon (Coho) and compliance by farmers with the DFG's Lake and Streambed Alteration Program (referred to as the Shasta Valley and Scott River Watershed-Wide Permitting Programs).

In March 2005, the California Fish and Game Commission listed the Coho as threatened under the California Endangered Species Act (CESA).  Therefore, the taking of Coho is illegal without authorization from DFG.

Continue Reading...