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

As previously blogged about here, on December 9, 2011, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Services) published a notice of proposed rulemaking (PDF) in the Federal Register that will, if adopted, change the Services' standards for listing and delisting species as threatened or endangered under the Endangered Species Act (ESA) by re-interpreting the definitions of "threatened" and "endangered" species in the ESA.

In a letter to the Director of the Fish and Wildlife Service (PDF) dated January 26, 2012, Congressman Markey, the ranking Democrat on the Committee on Natural Resources, expresses his "concerns that this policy has the potential to undermine several key provisions of the ESA by setting the bar for listing declining species at much too high a threshold."  So high, he argues, that "the bald eagle never would have been listed as an endangered species in the lower 48 States" because healthy populations of the bald eagle lived in Alaska "[e]ven during the worst era of DDT pesticide usage . . . ."

Markey also criticized the draft policy for ignoring "Congress' intent regarding the purpose of the ESA by refusing to consider the historic distribution of a species when making listing decisions about whether a species is in danger of extinction in a significant portion of its range."

Had such a policy been in place in the 1970s, Markey claims, "Americans would have had to travel to the most remote parts of Alaska to view species like the bald eagle, grizzly bear, or the gray wolf."  According to Markey, in passing the ESA, Congress did not sanction such a "living museum approach" to protect imperiled wildlife, but instead sought to protect ecosystems and restore species to their historic ranges.

The key provisions in the ESA provide that "'endangered species' means any species which is in danger of extinction throughout all or a significant portion of its range . . . [,]" and "'threatened species' means any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range."

But the ESA itself does not include a definition of "significant portion" of a plant or animal's range.

Under the draft policy, when making listing decisions the Services would:

1.  Deem a portion of a species' range to be "significant" if its contribution to the viability of the species is so important that without that portion, the species would be in danger of extinction;

2.  Limit consideration of a species' status to the range used by a species at the time the listing decision is being made; and

3.  Extend a listing decision made on the basis of a threat to the species' viability throughout only a "significant portion of its range" to the entire species, throughout its entire range.

According to Markey, under the first aspect of the draft policy, "the FWS would only protect an imperiled animal or plant species when the decline within a significant portion of that species' geographic range implicates the 'viability' of the species as a whole.  In other words, the only parts of a species' range which matter are those portions that, if lost, would lead to the global extinction of that species."

With respect to the second aspect of the draft policy, Markey claims it "could make it even more tempting for future political appointees within the Department of Interior, as well as some members of Congress, to meddle with or defund the listing process because any delay in listing would invariably shrink the geographic range that a declining species currently occupies."

Markey argues that to be consistent with the ESA, Congressional intent, and the legislative history of the ESA, the Fish and Wildlife Service must instead develop and use "a precautionary, science-based standard for deciding when it is appropriate to protect a species under the ESA[,] [a]nd . . . must also devise a balanced, science-based approach for considering the historic range of declining species when making listing decisions as opposed to its [proposed] categorical approach where the historic range of any . . . species is always ignored."

Currently the 60-day comment period on the draft policy ends on February 7, 2012. 

Several environmental organizations have requested that the comment period be extended, but with the deadline to comment just days away, the Services have not indicated that they will issue an extension.

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The U.S. Fish and Wildlife Service has prepared a 90-day finding (pdf) under the Endangered Species Act, in which it concludes that list of the ‘I’iwi (Vestiaria coccinea) as threatened or endangered  may be warranted, according to an article in Greenwire by April Reese.  The species, also known as the scarlet Hawaiian honeycreeper, is endemic to Hawaii, and its known distribution is limited to the islands of Hawaii, Maui, Molokai, Oahu, and Kauai.

The Service received a petition to list the species on August 25, 2010, from Noah Greenwald, Center for Biological Diversity, and Dr. Tony Povilitis, Life Net.  With its 90-day finding, the Service initiated a status review for the species that will culminate in a 12-month finding, which will address whether listing is warranted.  The time frame for that review will be dictated by the date when the 90-day finding is published in the Federal Register.

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President Obama announced a government consolidation plan that would involve transferring parts of the National Oceanic and Atmospheric Administration ("NOAA"), which is currently part of the Department of Commerce, to the Department of the Interior.  NOAA oversees marine wildlife, including endangered marine species.  The Fish and Wildlife Service, which is an agency within Interior, oversees freshwater species and land-dwelling wildlife.  In his remarks regarding the proposed consolidation, President Obama, suggested that having the two agencies that conduct oversight over species in separate departments was inefficient.

As reported by Jason Samenow in the Washington Post, the consolidation plan is facing growing opposition.  Several environmental groups, including the NRDC have spoken out against the plan arguing that it could hinder the government's protection of the oceans and undermine the agency's independence.  The National Weather Service Employee's Union is also opposed to the consolidation.  However, not everyone thinks the consolidation is entirely bad.  David Malakoff of Science quotes a former head of NOAA's marine fisheries program as stating that "The place that NOAA sits doesn't matter; what matters is that its operations need to be coherent and functioning" and that there are both advantages and disadvantages to the proposed consolidation.

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On January 12, 2012, the U.S. Fish and Wildlife Service found, after completing a 90-day review, that a petition to list the Humboldt marten (Martes americana humboldtensis) as an endangered or threatened species under the federal Endangered Species Act presented substantial scientific information indicating that listing may be warranted.  The Service will now conduct a comprehensive status review of the species to determine whether listing of the Humboldt marten is warranted.  The Service will be accepting comments on the Humboldt marten until March 12, 2012. 

For almost 50 years the Humboldt marten, a member of the weasel family, was considered potentially extinct.  In 1996, however, a stationary camera captured a picture of the illusive creature in Del Norte, California.  It is believed that the Humboldt marten population in California consists of fewer than 100 individuals.

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The U.S. Fish and Wildlife Service (FWS) and the California Department of Fish and Game (DFG) have approved the San Diego County Water Authority’s (Authority) Natural Community Conservation Plan/Habitat Conservation Plan (NCCP/HCP), which is expected to contribute to the conservation of San Diego County’s natural resources, while providing a more efficient endangered species permitting process for the Authority. The 55-year plan satisfies the requirements for incidental take authorization under California’s Natural Community Planning Act and the federal Endangered Species Act.

The comprehensive plan covers 63 plant and animal species and their habitats that may be adversely affected by Authority activities, including the construction, operation, repair, and maintenance of current and future water supply infrastructure facilities. The 63 species include 26 plants, 13 birds, nine reptiles, eight mammals, five invertebrates, and two amphibians. Of the 63 species covered by the plan, 18 are currently listed as endangered or threatened under the state and/or federal Endangered Species Acts. The plan covers roughly 922,000 acres in San Diego County, which encompasses areas served by the Authority and its member water agencies. The plan also includes a small portion of land in south-central Riverside County.

The Authority submitted the NCCP/HCP, along with a draft Environmental Impact Report/Environmental Impact Statement (EIR/EIS), to FWS and DFG in March 2010 (pdf) as part of its application for an incidental take permit. A final EIR/EIS was issued by the Authority and FWS in February 2011 (pdf) in accordance with the National Environmental Policy Act (NEPA) and the California Environmental Quality Act. A record of decision (pdf) was issued under NEPA in September 2011. The final NCCP/HCP and EIR/EIS documents are available here.

Concurrent with approval of the NCCP/HCP, FWS issued an incidental take permit (pdf) to the Authority that allows limited impacts to the listed species. If any of the remaining species covered by the plan become listed in the future, they will automatically be added to the permit.

According to the San Diego Union-Tribune, the three agencies “worked closely and collaboratively to find a way to comprehensively address potential endangered species impacts from the water authority’s projects and activities.” (San Diego Union-Tribune, Jan. 9, 2012, Mike Lee). Jim Bartel, field supervisor for FWS’s Carlsbad office, also stated that the plan “is a great example of innovative and effective environmental planning.”
 

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In September 2011, we reported that a federal district court made a rare finding of agency bad faith in litigation challenging a biological opinion and reasonable and prudent alternative (RPA) issued with respect to the effects of the Central Valley Project and State Water Project in California on the threatened delta smelt.  The finding came on the heels of a decision by the court granting injunctive relief to the State of California and public water agencies and agricultural interests, enjoining implementation of a component of the RPA previously determined to be arbitrary and capricious, which is referred to as the Fall X2 Action.  Following the bad faith finding, the House of Representatives held an oversight hearing, and a number of Representatives expressed their concern about the conduct of the federal agency personnel.

Rather than launch an Inspector General's investigation, the Service decided to hire an engineering and designing consulting firm, Atkins, to oversee a review of the finding of bad faith.  At the same time, the Service vehemently defended the conduct of its personnel, going so far as to give a merit award to one of the two personnel charged with bad faith less than a month after the court's decision and well before the outside review was completed.  The decision to contract directly with an outside organization to conduct the review allowed the Service to control the scope of the review including the questions posed to the reviewers, determine what materials the reviewers would be provided, and limit the panel to communicating only with the Department of the Interior during the course of the review.

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The Fish and Wildlife Service (Service) announced this week a 90-day finding (pdf) on a petition (pdf) submitted by the Center for Biological Diversity to list the Sierra Nevada red fox (Vulpes vulpes necator) as endangered or threatened under the Endangered Species Act (ESA) and to designate critical habitat. As reported in the Sacramento Bee and the Modesto Bee, the Service stated that there is enough evidence to consider protecting the fox based on its small population, threats from off-road vehicles and disease transmission from dogs.

The fox, considered one of the rarest mammals in the United States, weighs about ten pounds, measures just over two feet, and generally lives only above an elevation of 7,000 feet. The current distribution of Sierra Nevada red fox is believed to be restricted to two small populations: one in the vicinity of Lassen Peak and the other in the vicinity of Sonora Pass.  In 1980, the California Fish and Game Commission listed the species as threatened under the California Endangered Species Act.

Historically, the Sierra Nevada red fox occupied high-elevation areas of the Sierra Nevada and Cascade mountain ranges in California, ranging from Tulare County north to Sierra County, and from the vicinity of Lassen Peak and Mt. Shasta west to the Trinity Mountains in Trinity County. A recent study indicates that this range also included the southern Cascade mountain range in Oregon, as far north as the Columbia River.

Scientific and commercial data and other information regarding this subspecies must be received on or before March 5, 2012. Based on the status review, the Service will issue a 12-month finding on the petition, which will address whether the listing is warranted.

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