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

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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As Peter Fimrite reported in the San Francisco Chronicle, this week a lone gray wolf (Canis lupis) crossed the border from Oregon into California.  This marks the first time since 1924 that a wolf was seen in California.  The species was hunted to extinction within the state, due at least in part to concerns about the risks it posed to humans.  The species is listed (pdf) as endangered under the federal Endangered Species Act.  It is not listed under the California Endangered Species Act.

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The National Marine Fisheries Service (NMFS) recently reopened  the public comment period for its proposal to designate additional critical habitat for endangered Hawaiian monk seals (Monachus schauinslandi).  As we previously reported, on June 2, 2011, NMFS proposed revising the critical habitat for the Hawaiian monk seal pursuant to section 4 of the Endangered Species Act (ESA) by extending the current designation in the northwestern Hawaiian Islands out to the 500-meter depth contour, including Sand Island at Midway Islands; and by designating six new areas in the main Hawaiian Islands, including Kaula Island, Niihau, Kauai, Oahu, Maui nui, and Hawaii.  NMFS provided a 90-day comment period, ending August 31, 2011.

NMFS received numerous requests for an extension of the comment period.  The requests identified that additional time was needed to more fully consider the proposed rulemaking and provide comments on the proposed designation.  In response to those requests, NMFS elected to extend the deadline.  The public will now have until January 6, 2012 to comment on NMFS's proposed designation.

Documents and reference materials related to the proposed rulemaking are available via the NMFS Pacific Islands Regional Office Web site: http://www.fpir.noaa.gov/PRD.

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A NOAA task force, made up of representatives from state and federal agencies, tribes, and interest groups, voted on Monday to recommend that NOAA Fisheries permit Oregon and Washington to remove up to 85 California sea lions a year in order to protect listed salmon and steelhead.  Under the Marine Mammal Protection Act (“MMPA”), NOAA is charged with protecting marine mammals such as the California sea lion; but, NOAA is also the lead agency responsible for saving Columbia River salmon and steelhead, which are listed under the Endangered Species Act ("ESA").  Since 2002, California sea lions have been preying on stocks of salmon and steelhead below the Bonneville Dam, where the species congregate as they prepare to move upstream.

NOAA has twice authorized lethal removal of California sea lions in this area.  In 2010, a lawsuit filed by the Humane Society stopped the program briefly (see NMFS Suspends Lethal Removal of Sea Lions in Oregon and Washington).  When the program resumed, the Humane Society filed a second lawsuit, halting the sea lion removal again.

NOAA expects to make a decision by March 2012 on whether to grant a new permit.

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Proposed revisions (pdf) to the draft Santa Clara Valley Habitat Conservation Plan / Natural Community Conservation Plan (HCP/NCCP) were released last month to address the hundreds of comments received regarding the draft plan, which was issued in December 2010. The draft plan and comment letters are available for viewing here.

The Santa Clara Valley HCP/NCCP is intended to identify conservation and mitigation measures to protect species listed under the federal Endangered Species Act (ESA) and the California Endangered Species Act (CESA), while allowing for orderly development and public agency activities. The conservation measures, including land preservation and habitat protection, are intended both to mitigate the environmental impacts of planned development, public infrastructure operations and maintenance activities, and to enhance the long term viability of endangered species. Over 20 listed species will be covered under the plan, including the California tiger salamander, California red-legged frog, western burrowing owl, and Bay checkerspot butterfly. The plan will include approximately 520,000 acres, primarily in the south portion of Santa Clara County, and is expected to have a 50-year permit term.

The plan is being prepared by the cities of Morgan Hill, Gilroy, and San Jose, the County of Santa Clara, the Santa Clara Valley Water District, and the Santa Clara Valley Transportation Authority, in consultation with the United States Fish and Wildlife Service (Service) and the California Department of Fish and Game (DFG). The plan’s overall planning process has cost approximately $5.1 million to date, which has been shared by the plan applicants. The Santa Clara County Board of Supervisors and the City of Morgan Hill voted in late September to continue their participation in the plan. Other plan applicants, including the San Jose City Council, will face similar decisions this month.

Once the plan is approved, resource agencies (including the Service and DFG) will issue permits to local agencies to allow limited impacts to endangered species. Local agencies will then administer the permits by providing third-party take authorization for specific projects, rather than having permits issued by a state and/or federal agency.  The draft plan calls for private developers and public agencies to pay fees of up to $16,600 per acre for land they wish to develop.

Proponents expect the plan to benefit local developers by streamlining the environmental permitting process, as well as ultimately reducing costs. Publicly funded agencies that build roads, bridges, and sewage treatment plants also support the plan because it would save time and money by expediting the often lengthy environmental review process.

Opponents of the plan, including the Santa Clara County Farm Bureau and the Cattlemen’s Association, assert that agricultural and livestock development should not be assessed development fees, and urge the plan applicants to consider alternative fee arrangements. Others are concerned that the fees for larger infill projects, from 2 to 10 acres, remain too high at about $4,000 an acre.

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The U.S. Fish and Wildlife Service (Service) recently announced (PDF) the availability of the 2011 Revised Recovery Plan for the Mojave Population of the Desert Tortoise (Gopherus agassizii) (PDF).  The Plan calls for an adaptive management approach, something the Service says is necessary to "accommodate changing management needs" of the species.  In contrast, an earlier earlier recovery plan, finalized in 1994, focused on traditional mitigation measures to achieve recovery of the threatened desert tortoise.

Key elements of the 2011 Recovery Plan include developing, supporting, and building partnerships to facilitate recovery; protecting existing populations and habitat, and instituting of habitat restoration where necessary; augmenting depleted populations in a strategic, experimental manner; monitoring progress toward recovery, including population trend and effectiveness monitoring; conducting applied research and modeling in support of recovery efforts within a strategic framework; and implementing a formal adaptive management program that integrates new information and utilizes conceptual models that link management actions to predicted responses by Mojave desert tortoise populations or their habitat.

The Service characterizes the 2011 Recovery plan as a "living document."  Ren Lohoefener, director of the Service's Pacific Southwest Region, stressed that the "ability to conserve the Mojave population of the desert tortoise and lead to eventual recovery of this threatened species depends on science and innovation."  The 2011 Recovery Plan calls for regional recovery implementation teams that bring together individuals from land management, scientific, conservation, and land use groups to work with the Service to implement, track, and evaluate recovery actions.  According to the Service, "[b]y continuous examination of vulnerability, exposure, sensitivity, and adaptive capacity of the desert tortoise, resource managers will be able to update the Plan as it is being implemented with conservation measures that will help the desert tortoise recover."

The 2011 Recovery Plan's adaptive management approach is highlighted by the Service's current plan to add a chapter focusing on measures related to renewable energy projects, something that environmental groups claim is sorely lacking.  The Service notes that, when the Recovery Plan was being developed, they did not anticipate the extent to which the landscape of the desert ecosystems in the Pacific Southwest might become modified as a result of newfound federal renewable energy priorities.  While the Recovery Plan does discuss renewable energy development in a number of locations (for example, it notes that impacts from large-scale energy development might impact the desert tortoise through habitat fragmentation, isolation of desert tortoise conservation areas, and the subsequent possibility of restricted gene flow between those areas), it does not provide a single, comprehensive strategy for addressing renewable energy.  The Preamble to the 2011 Recovery Plan notes that the new chapter on renewable energy "will act as a blueprint to allow the Service and [its] partners to comprehensively address renewable energy development and its relationship to desert tortoise recovery."

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Pursuant to a state law (pdf) enacted in 2010, the legislature required the California Natural Resources Agency to convene a cabinet-level committee to develop a strategic vision for the Department of Fish and Game and the Fish and Game Commission, and submit it to the governor and Legislature before July 1, 2012.  The state has established a website that describes the committee, referred to as the executive committee, a citizen commission, and a stakeholder advisory group.  The stakeholder advisory group is holding a series of meetings over the next 10 days to address a variety of topics including sustainable financing, governance and mission, natural resources stewardship and protection, and science.  The meetings are open to the public.

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An edited volume recently released by Resources for the Future Press and Earthscan focuses on federalism and the U.S. Endangered Species Act (ESA).  The editors are Kaush Arha and Buzz Thompson, both of whom are associated with the Woods Institute at Stanford University.  According to these editors, the volume "explores the critical role that states can and should play in protecting the nation's vast wealth of biodiversity."  The volume includes case studies of federalism and the ESA focused on individual species and chapters that address federalism and the ESA at the conceptual level.  I co-authored a chapter with Eileen Sobeck of the U.S. Department of the Interior regarding listing decisions, conservation agreements, and state-federal collaboration.  The volume is available for purchase from the publisher and online retailers.

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On June 30, 2011, the Fish and Wildlife Service (Service) issued a revised recovery plan (PDF) for the Northern spotted owl (Strix occidentalis caurina).  Most people are familiar with the spotted owl because of the intense media attention it received during the 1990s when a fight erupted over whether to continue to allow timber harvesting in the forests of the Pacific Northwest, which conservationists argued was causing loss of critical habitat for the species.  The Service first issued a recovery plan for the spotted owl in 2008, and numerous parties challenged that plan in court.  In 2009, the Service filed for a voluntary remand of the 2008 recovery plan and critical habitat designation.  

The Revised Recovery Plan has three main provisions for achieving spotted owl recovery: protecting "high value" habitat, actively managing forests to improve forest health, and reducing competition from barred owls (Strix varia). 

When the spotted owl was first listed in 1990, the main threat to the species was the loss of habitat due to timber harvest and catastrophic fire.  As a result, logging restrictions were implemented.  But since that time, another threat, competition from barred owls, which have moved into the spotted owl's range, has grown significantly.  The Service currently views the threat from barred owls as "extremely pressing" requiring "immediate consideration."  Barred owls are "larger, more aggressive, and more adaptable than spotted owls" and are believed to "displace spotted owls, disrupt their nesting and compete for food."  In addition, there have been observations of barred owls killing spotted owls and mating with the females.  Therefore, one of the main provisions of the Revised Recovery Plan is to manage the barred owl, including experimental removal, using both lethal and non-lethal methods.

The Revised Recovery Plan does not include a mapped habitat conservation network, and the Service is under court-order to issue a proposed critical habitat designated by November 15, 2011 and a final critical habitat designation by November 15, 2012. 

As reported in the New York Times, the spotted owl is "declining by an average of 3 percent per year across its range."  (New York Times, June 30, 2011 by William Yardley.)  While the Revised Recovery Plan proposes to expand protected areas for the spotted owl, scientists are uncertain whether the barred owl can be managed adequately to allow recovery of the spotted owl.  It is expected that the Revised Recovery Plan will also be the subject of future litigation.

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A plan to remove four dams along the Klamath River, which flows from Oregon through California to the Pacific Ocean, has major proponents including the federal government, the States of California and Oregon, and a number of environmental groups.  But in a June 13, 2011 report (pdf), an independent review panel has raised serious questions regarding the likelihood that the dam removal proposal will achieve the principal conservation goal of increasing the population of Chinook salmon (Oncorhynchus tshawytscha) in the Klamath River system.

The panel acknowledged the potential benefits of the plan for Chinook, noting that the "Proposed Action appears to be a major step forward in conserving target fish populations compared with decades of vigorous disagreements, obvious fish passage barriers, and continued ecological degradation."  But the panel went on to express uncertainty regarding the relative benefits of the plan for the species.  It noted that there are many  limiting factors on Chinook salmon in the Klamath River system, and voiced "strong reservations" that the plan will be implemented in a manner that addresses those limiting factors other than the presence of the dams, which include water quality problems, disease, interbreeding with hatchery salmon, and predation.  Furthermore, the panel noted the possibility that there would be conflicts between management options to meet the needs of Chinook salmon and other fish that are presently listed under the Endangered Species Act or that could be listed in the near future.

One news article reporting the release of the report included a grim assessment by one of the panel members: "'I think there's no way in hell they're going to solve' the basin's water-quality problems, said Wim Kimmerer, an environmental research professor at San Francisco State, one of six experts who reviewed the plan. 'It doesn't seem to me like they've thought about the big picture very much.'"  (Los Angeles Times, June 25, 2011, by Bettina Boxall.)  It is unclear what fallout will result from release of the panel report.

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The wildfires in Arizona have raged through forests and burned down homes, but as recently reported by the Washington Post, three packs of endangered Mexican gray wolves (Canis lupus baileyi) appear to have been spared.  (Story by Associated Press, June 23, 2011).  Firefighters have spotted two of the three packs moving around with their pups, and researchers were able to confirm the survival of at least three wolves from the third pack via radio collar data.  It is currently unknown whether pups from the third pack have survived the fires, but a spokesman for the Arizona Game and Fish Department said that they are confident that all of the wolves and their pups are alive.

The story notes that given the extent of the fires, it is unlikely that the Mexican spotted owl (Strix occidentalis lucida) has fared as well.

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In 2008, the National Oceanic & Atmospheric Administration ("NOAA") authorized Washington, Oregon, and Idaho to "lethally remove" individual sea lions that congregate below the Bonneville Dam and continue to eat listed salmon and steelhead after non-lethal deterrence methods prove unsuccessful.  Under the current program, after a sea lion is identified and trapped it is either transported to a new location or euthanized.  Earlier this month, however, a task force convened at NOAA's request recommended that the controversial program be liberalized, and that sea lions be shot on the spot as a visual deterrent to the remaining population.  The recommendations of the task force will now be considered by NOAA, and potentially incorporated into a new rule governing the program.

Although approximately 40 sea lions have been killed or removed since the initiation of the program, the United States Army Corps of Engineers reported that sea lion consumption of salmon and steelhead around Bonneville Dam grew from 3,846 in Spring 2007 to 5,095 in Spring 2010.

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The burrowing owl (pdf) is a species broadly distributed in the western United States that also occupies other parts of the continental United States as well as Central and South America.  The species is resident in much of the State of California.  Populations of the species have declined in certain areas of the State over time, but the population in Imperial County increased with the expansion of agriculture in the region over the past century.  It was recently reported that the Imperial County population, which was as high as 5600 pairs in the past decade, totaled less than 4900 pairs in 2007 and 3600 pairs in 2008.

The burrowing owl is classified as a species of special concern by the California Department of Fish and Game.  In addition, it is subject to protect under the federal Migratory Bird Treaty Act.  In 2003, a number of environmental groups filed a petition (pdf) to list the species under the California Endangered Species Act, but the Fish and Game Commission declined to list the species.  The burrowing owl is a covered species under a number of regional habitat conservation plans in southern California including the San Diego Multiple Species Conservation Program Plan (pdf) and the Western Riverside County Multiple Species Habitat Conservation Plan.

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Recently, a number of news outlets reported that the population of the palila (Loxioides bailleui), a Hawaiian songbird that the Fish and Wildlife Service listed as endangered in 1967 under the predecessor to the 1973 Endangered Species Act (ESA), has decline dramatically in recent years according to surveys conducted by the U.S. Geological Survey and other entities.  In a five year status review of the species (pdf), the Fish and Wildlife Service previously identified the population decline.

From 2003 to 2007, the estimated number of palila on the southwestern slope of Mauna Kea declined by 58 percent, the first statistically significant population decline for the entire period of annual monitoring that began in 1980.

5-year review at 14 (2009).  Among the reasons for the decline are habitat loss, drought, and predation by feral cats.  The State is in the process of building a fence to protect the species' remaining habitat.  The U.S. Geological Survey has expended significant resources on research and recovery efforts (pdf).  The palila was the subject of extensive litigation under section 9 of the ESA in the 1980s.

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Home to endangered species, marine mammals, and nationally significant commercial and recreational fishing resources, the Gulf of Mexico ecosystem is under assault. When the Deepwater Horizon oil platform exploded on April 20, sinking two days later, it began spewing oil into the Gulf’s ecosystem. Recalling that the infamous Exxon Valdez oil spill released just over 11 million gallons of oil into Alaska’s Prince William Sound, on May 27 scientists estimated that the Gulf spill, hopefully now capped, released between 17 million and 27 million gallons of oil, making it the largest spill in U.S. history

Already oil is washing ashore along the Gulf Coast states, but the damages were felt from the very first days of the spill. Many charter boat fishermen watched helplessly as virtually all of their spring, summer, and fall bookings canceled. The multi-million dollar shrimp fishery, together with other major Gulf commercial fisheries, face economic ruin as the spreading oil approaches critical nursery and habitat areas. Federal and state agencies are mobilizing for the expected strandings of marine mammals and other wildlife populations. Valuable wetland and marsh areas may be lost.

Sadly, scientists who assess and manage all of these resources have varying degrees of data to assess the impacts of the spill. In the case of the deep ocean ecosystem where much of the spilled oil resides, scientific knowledge is spotty at best. It may be years before the full impact of this spill on the Gulf’s ecosystem is known. In some instances, we may never know because we do not have the environmental baseline data for the environment that existed before the spill.
Federal and state agencies are in the process of assessing the economic and environmental damages from the spill. But if the Exxon Valdez case is any guide, it could be 20 years before we finish the legal battles regarding who pays and what environmental restoration is required. Chief among these battles will be the process by which natural resource agencies assess natural resource damages (“NRD”) under the Oil Pollution Act (“OPA”). The OPA NRD provisions parallel those in Superfund. However, Superfund’s NRD provisions have generated substantial debate about the process by which damages are assessed and one can expect this debate to be replayed in OPA with respect to the Gulf spill. Already industry and environmental experts are lining up for what promises to be an epic battle.

Members of Congress are also closely watching the impact of the oil spill on their constituents, industries, and the ecosystem. As this drama unfolds, the need for biological information will be critical. And the legal and legislative battles that will flow from this spill may set legal precedents and highlight the need for regulatory and legislative changes.

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In a speech at the Department of the Interior, President Obama announced a new national conservation effort titled the America’s Great Outdoors Initiative.

The President described the Administration’s plans to roll out the Initiative in the following way.

"In the months ahead, members of this administration will host regional listening sessions across America. We’ll meet with everybody -- from tribal leaders to farmers, from young people to businesspeople, from elected officials to recreation and conservation groups. And their ideas will help us form a 21st century strategy for America’s great outdoors to better protect our natural landscape and our history for generations to come."

President Obama went on to elaborate on four major components of the Initiative.

"First, we’re going to build on successful conservation efforts being spearheaded outside of Washington -– by local and state governments, by tribes, and by private groups -– so we can write a new chapter in the protection of rivers, wildlife habitats, historic sites, and the great landscapes of our country."

"Secondly, we’re going to help farmers, ranchers, property owners who want to protect their lands for their children and their grandchildren."

"Third, we’ll help families spend more time outdoors, building on what the First Lady has done through the “Let’s Move” initiative to encourage young people to hike and bike and get outside more often."

"And fourth, we want to foster a new generation of community and urban parks so that children across America have the chance to experience places like Millennium Park in my own Chicago."

News outlets, including the Washington Post, covered the announcement.
 

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