House Republicans recently announced the creation of the Endangered Species Act (ESA) Working Group, which will be led by House Natural Resources Committee Chairman Doc Hastings (R-WA) and Western Caucus Co-Chair Cynthia Lummis (R-WY). The ESA Working Group will include a total of 13 republican members from a broad geographic range. It will examine the ESA from many angles through a series of events, forums, and hearings that will invite discussion and input on ways in which the ESA is working well, and where it can be updated or improved to increase its effectiveness for both people and threatened or endangered species and their habitat. Chairman Hastings noted that the ESA Working Group “is an opportunity to . . . have a fair, honest conversation and review of the current law.”
On March 21, 2013, Representatives Bill Flores (R-TX), John Carter (R-TX), K. Michael Conaway (R-TX), Mac Thornberry (R-TX), and Steve Pearce (R-NM) introduced a bill (pdf) to curtail allegedly excessive Endangered Species Act (ESA) lawsuits brought by environmental groups. The bill would prohibit courts from approving ESA settlements, unless states and counties that would be affected by the settlements have also given their approval. Also aimed at limiting the amount the U.S. Fish and Wildlife Service (Service) can spend on ESA lawsuits, the bill would prevent litigants from recovering legal fees.
According to Rep. Flores, the bill is intended to “protect American citizens from the burdensome and costly regulatory impact of closed-door litigation settlements between special interest groups and the U.S. Fish and Wildlife Service.” Similarly, Rep. Conaway stated: “This legislation would … require that local communities have the opportunity to veto any settlements between the [S]ervice and these environmental groups.”
The bill was introduced as companion legislation to Senate Bill 19, which, as we reported here, was introduced by Sen. John Cornyn in February.
Yesterday, a Republican Senator from Texas, John Cornyn, introduced a bill (pdf) that would prohibit the U.S. Fish and Wildlife Service from settling environmental lawsuits without first publishing the complaint "in a readily accessible manner, including electronically," and allowing "affected parties" an opportunity to intervene. The bill further provides that the filing of any motion to dismiss or for entry of a consent decree based on a settlement agreement shall be prohibited until after affected parties have had a "reasonable opportunity" to intervene. Should a party intervene, the bill would compel the courts to refer the parties, including all that intervened, to either a mediation program of the court or a magistrate judge. The bill would also prohibit any award of litigation costs for certain "covered settlements," and prohibit the courts from approving a "covered settlement" until the settlement is approved by each state and county in which the Secretary of the Interior believes a species occurs.
As recently reported by a number of news agencies, President Obama will nominate Sally Jewell, the Chief Executive Officer of REI, to be the next Secretary of the Interior. If the nomination is approved by the Senate, she will be replacing a vacancy created by Ken Salazar, who announced in January that he will be stepping down at the end of March. It is anticipated that President Obama will make the announcement this afternoon.
On January 23, 2013, over 25 California delegates to the House of Representatives introduced a bill, H.R. 399 (pdf), addressing the federal rules requiring trees growing on levees to be removed. Specifically, the bill would require the U.S. Army Corps of Engineers (Corps) to review its policy about vegetation-removal on levees, in order to consider allowing variances on a regional or watershed basis.
The Corps established a national vegetation removal policy in the wake of the failure of levees during Hurricane Katrina. According to Rep. Doris Matsui (D-CA), the “[C]orps' current vegetation policy does not provide enough flexibility for the unique challenges of different regions across the nation, and particularly in California.”
The California Department of Water Resources (DWR) estimates that compliance with the current federal policy would cost at least $7.5 billion and would destroy important habitat for endangered species. Under the existing policy, original riparian forest would have to be removed; such vegetation is habitat to several endangered species, including Chinook salmon, valley elderberry longhorn beetle, and Central Valley steelhead. DWR is concerned that compliance both with the Corps’ vegetation removal policy and the Endangered Species Act would be unworkable.
As we reported here, the California Department of Fish and Wildlife filed a lawsuit against the Corps in February 2012. That suit is still pending.
Congressman Markey Issues Sharp Criticisms of Draft Interpretation of "Endangered" and "Threatened" Species
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.
Parts of National Oceanic and Atomospheric Administration to be Transferred to Department of the Interior
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.
House Republicans to Hold Hearing Investigating Impact of Habitat Protections for Southern California Fish Species on Water Supplies and Economy
In response to a letter from two local congressmen (PDF), Republicans from the Natural Resources Water and Power Subcommittee have scheduled an oversight hearing to examine the U.S. Fish & Wildlife Service’s recent designation of critical habitat for the Santa Ana sucker (Catostomus santaanae). As reported on this blog, the Service published a final rule (Dec. 14, 2010) designating critical habitat for the Santa Ana sucker, a small fish species occurring in southern California. The Final Rule designates nearly 10,000 acres in the Santa Ana and San Gabriel rivers and Big Tujunga creek, spanning San Bernardino, Riverside, Orange, and Los Angeles counties.
The hearing will be held October 18, 2011, 10:00 a.m. PST in the Highland City Hall in San Bernardino County. Ren Lohoefener, Regional Director of the Service, is scheduled to appear as a witness.
As reported in Environment and Energy Daily (Oct. 17, 2011), Water and Power Subcommittee Chairman Tom McClintock (R-Calif.) stated, "Regulatory excesses are imposing increasingly oppressive costs on operation of local water systems. . . This hearing will examine whether the enormous wealth consumed by these policies has made any significant contribution to enhancing endangered populations -- particularly compared to far more effective and less expensive alternatives." The field hearing’s title, "Questionable Fish Science and Environmental Lawsuits: Jobs and Water Supplies At Risk in The Inland Empire," reflects many Republican House members’ and critics’ objections to the sucker critical habitat. No Democrats are expected to attend.
In their letter requesting a field hearing, Representatives Ken Calvert (R-Calif.) and Jerry Lewis (R.-Calif.) linked the effects of ESA regulation, implementation, and litigation to the economic downturn: “California Water Agencies are receiving fractions of their total water allocations and California communities are experiencing record job losses due, in some instances, to water shortages . . .”
The conflict between the protections afforded listed species under the Endangered Species Act on one hand and water supply and economic impacts on the other is not novel. As widely reported on this blog, the Service has been engaged in protracted litigation over limitations placed on the State Water Project and Central Valley Project to protect the threatened delta smelt.
The Service’s action designating critical habitat for the sucker settled litigation initiated by California Trout and other environmental groups. On August 23, 2011, Bear Valley Mutual Water Company and several water districts and municipalities lodged a complaint in the United States District Court for the Central District of California challenging the Service's action designating sucker critical habitat within the Santa Ana River watershed in San Bernardino, Riverside, and Orange counties.
On October 13, 2011, the Subcommittee on Investigations and Oversight to the Committee on Science, Space, and Technology of the U.S. House of Representatives held a hearing on the nexus of science and policy related to the Endangered Species Act (ESA). According to a press release issued by the House, the purpose of the hearing was to "highlight how science is used in policy decisions that are made under [the ESA]." The witnesses at the hearing were:
- Mr. Gary Frazer, Assistant Director, Endangered Species, U.S. Fish and Wildlife Service
- The Honorable Craig Manson, General Counsel, Westlands Water District
- Mr. Douglas Vincent-Lang, Senior Biologist, Alaska Department of Fish and Game
- Dr. Neal Wilkins, Director, Texas A&M Institute of Renewable Natural Resources
- Mr. Jonathan Adler, Professor, Case Western Reserve University School of Law
- Dr. Francesca T. Grifo, Senior Scientist and Director, Scientific Integrity Program, Union of Concerned Scientists
The testimony of the witnesses is available here. At the hearing, Mr, Frazier who heads the endangered species program at the Fish and Wildlife Service, told lawmakers the Department of the Interior would hire independent experts to evaluate a finding of bad faith made with respect to the conduct of two Department scientists by a federal district court judge in a case involving the Service's 2008 biological opinion regarding the effects of the Central Valley Project and California State Water Project on the threatened delta smelt (Hypomesus transpacificus). (E&E News, Oct. 13, 2011, by Allison Winter.) We reported on the court's finding here and here.