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

On November 16, 2011, the United States Court of Appeals for the Ninth Circuit issued a ruling (PDF) affirming a lower court’s decision (PDF) that two U.S. Fish and Wildlife Service’s (FWS) biological opinions (BiOp) for a proposed 1500-acre mining project in the Cabinet Mountain Wilderness on the Kootenai National Forest met the legal standards set forth in the Endangered Species Act and Administrative Procedure Act. The Court upheld the BiOp’s conclusions that construction and operation of the mine would not adversely modify bull trout critical habitat or jeopardize the continued existence of grizzly bear population in the lower 48 states of the United States. 

FWS determined that construction and operation of the mine would not adversely modify bull trout critical habitat based primarily on the relatively small footprint of project impacts to critical habitat-- less than three stream miles-- as compared to the much larger 135-stream mile critical habitat “core area.” The Court agreed that such “large-scale critical habitat analysis” is appropriate provided localized impacts are not masked or ignored. The BiOp included a complete evaluation of the physical and biological characteristics necessary for the bull trout’s survival and concluded that all essential elements would remain functional throughout the project’s lifetime.  For this and other reasons, the Court affirmed FWS’s no adverse modification conclusion. 

The Court also upheld the BiOp’s no jeopardy conclusion for grizzly bears based on the project’s comprehensive mitigation plan for the affected Cabinet-Yaak population, which was expected to promote grizzly recovery over the long-term.
 

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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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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.

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On August 30, 2011, the U.S. Fish and Wildlife Service (Service) announced that it will designate under section 4 of the federal Endangered Species Act approximately 47,383 acres of critical habitat for the Sonoma County Distinct Population Segment of the California Tiger Salamander (Ambystoma californiense).  The Service had previously re-opened the comment period on its proposed critical habitat designation on June 21, 2011, in order to allow interested parties to comment on the proposed addition of 4,945 acres of critical habitat for the Santa Rosa Plain Unit.  (For a history of the Service's critical habitat designation, please see Lauren Valk's January 21, 2011 and June 23, 2011 posts.)  Although the final designation will include the 4,945 acres proposed on June 21, the total area designated is a reduction of 26,840 acres from the original 2005 proposed rule.  The final rule will be published tomorrow in the Federal Register.

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The Fish and Wildlife Service (“Service”) announced a proposed rule (pdf) this week to revise critical habitat for the federally endangered Coachella Valley milk-vetch (Astragalus lentiginosus var. coachellae).  The proposed rule would designate approximately 25,704 acres of land in Riverside County, California as critical habitat for the plant, which is endemic to the Coachella Valley. The four geographic units proposed as critical habitat include sand transport and deposition areas associated with: San Gorgonio River and Snow Creek, Whitewater River, Mission Creek and Morongo Wash, and the Thousand Palms area.

The proposed rule is the result of a lawsuit filed against the Service by the Center for Biological Diversity challenging the final critical habitat designation for the plant in 2005.  At that time, the Service designated zero acres of critical habitat because it found that all habitat with essential features was located within areas to be conserved and managed by the Coachella Valley Multiple Species Habitat Conservation Plan/Natural Community Conservation Plan ("MSHCP/NCCP") or was within areas conserved within the Coachella Valley Preserve System under the Coachella Valley fringe-toed HCP.

For similar reasons, the Service is again considering excluding from the proposed designation over 18,446 acres of land covered by the MSHCP/NCCP, the City of Desert Hot Springs, and the Agua Caliente Band of Cahuilla Indians and Morongo Band of Mission Indians.  It reasons that "the land managers sufficiently provide conservation for the plant; exclusion will encourage the continuation and strengthening of cooperative partnerships; or areas subject to the implementation of management plans provides equal to or more conservation than the designation of critical habitat would provide.”

Habitat components essential to the plant’s long-term survival include sands from transport channels/corridors and deposition sites.  Unoccupied stream channels within drainage systems provide for water transported sands essential for the conservation of the plant.

Comments and information on the proposed revision can be submitted electronically beginning on August 25, 2011 and must be received by October 24, 2011.

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On July 22, 2011, the U.S. Court of Appeals for the District of Columbia Circuit held that the Fish and Wildlife Service (Service) erred when it designated 143 acres of private property as critical habitat for the endangered San Diego fairy shrimp (Branchinecta sandiegonensis) based on a single observation of the shrimp on the property in 2001.

The question presented in Otay Mesa Property L.P. v. U.S. Dept. of the Interior, No. 10-5204, 2011 U.S. App. LEXIS 14998 (D.C. Cir. July 22, 2011) was quite narrow: whether a single confirmed sighting of the endangered fairy shrimp in a tire rut on 143 acres of land in 2001 provides substantial evidence that the land was "occupied" by the shrimp in 1997, the year the Service listed the species.  The court determined that that the single 2001 observation alone is not substantial evidence because the Service "has not reasonably explained how that one, isolated observation demonstrates that plaintiffs' property was 'occupied' by the San Diego fairy shrimp in 1997 (the relevant statutory date) . . . ."

The court emphasized that the Service had based its listing decision on one observation of the shrimp at one location on the 143-acre property, and that the Service failed to observe any San Diego fairy shrimp in any of the six follow-up surveys of the property in 2001.  During the litigation, the Service pointed out that an unidentified species of fairy shrimp was observed in 2001 in a pond next to the tire rut, and it also suggested that wherever adult fairy shrimp are observed, one can assume that they left behind buried eggs, that buried eggs can lie dormant for years, and that a property with dormant, buried eggs is, by definition, "occupied" by the fairy shrimp.  However, the court rejected the Service's additional evidence and reasoning, not because it was insubstantial or unpersuasive, but because the Service had not relied on it when it designated the land as critical habitat based on its determination that the shrimp "occupied" the land in 1997.

The court acknowledged that the substantial evidence standard of review under the Administrative Procedure Act is deferential, but "deference is not abdication."  Moreover, while the Service is not required to conduct its own research to augment the "best scientific data available" under the Endangered Species Act, under the Administrative Procedure Act, the best scientific data must be enough to support the Service's designation of critical habitat. 

In the Court of Appeal's judgment, the best scientific data that the Service relied on for its decision to include the 143-acre property in the fairy shrimp's critical habitat simply fell short.

The decision leaves in place the Service's designation of 2,939 acres of land in Orange and San Diego Counties as critical habitat for the fairy shrimp.  And on remand, the Service may re-designate all or part of the 143-acre property as critical habitat.  But unless and until that happens, the owners may develop the land without the fear that they may adversely modify designated critical habitat for the fairy shrimp, an act that would be subject to numerous restrictions and requirements under the Endangered Species Act.

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In a settlement agreement (pdf) filed in federal court on July 5, 2011, the National Marine Fisheries Service (NMFS) agreed to issue a final rule by November 15, 2011, likely revising the critical habitat for the endangered leatherback sea turtle (Dermochelys coriacea) to include waters off the U.S. West coast. 

NMFS initially designated critical habitat for the leatherback in 1979, issuing a final rule (pdf) designating critical habitat only in waters adjacent to Sandy Point Beach, St. Croix, U.S. Virgin Islands.  In 2007, the Center for Biological Diversity, Oceana, and Turtle Island Restoration Network filed a petition (pdf) requesting that NMFS revise the critical habitat designation to include areas off the California and Oregon coasts.  While NMFS determined (pdf) in 2007 that the petition presented substantial scientific information indicating that the petitioned action may be warranted, it did not issue a proposed rule (pdf) to revise the critical habitat designation until January 5, 2010.  Under the proposed rule, NMFS would revise the leatherback's designated critical habitat to include approximately 70,600 square miles of ocean waters.

On April 19, 2011, because NMFS had not issued a final rule revising the leatherback's designated critical habitat, the environmental organizations filed a lawsuit alleging that the failure to issue a final rule was in violation of the federal Endangered Species Act.  On July 5, 2011, the parties filed a settlement agreement obligating NMFS to issue a final rule by November 15, 2011.  While NMFS is not obligated under the settlement agreement to adopt the proposed rule, or any other specific substantive outcome, it is anticipated that the final rule will designate critical habitat off the coasts of California, Oregon, and Washington. 

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The Fish and Wildlife Service (Service) announced (pdf) that it has re-opened the comment period on its August 18, 2009 proposed designation of critical habitat for the Sonoma County Distinct Population Segment of the California tiger salamander (Ambystoma californiense) under the Endangered Species Act.  The Service is reopening the comment period to allow interested parties an opportunity to comment on the proposed addition of 4,945 acres of critical habitat for the Santa Rosa Plain Unit as described in the January 18, 2011 notice (pdf).  In total, the Service is proposing to designate approximately 55,800 acres of land as critical habitat for the species.  The deadline to submit comments is 11:00 pm Eastern Time on July 5, 2011.

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On June 7, 2011, the U.S. Fish and Wildlife Service (Service) issued a final rule under section 4 of the federal Endangered Species Act revising the critical habitat designated for the Pecos assiminea (Assiminea pecos), and designating critical habitat for the Roswell springsnail (Pyrgulopsis roswellensis), Koster's springsnail (Juturnia kosteri), and Noel's amphipod (Gammarus desperatus).  The designated critical habitat for the four endangered species, which occur primarily in sinkholes, springs, and associated spring runs and wetland habitats, is located in Chaves County, New Mexico, and Pecos and Reeves Counties, Texas.  

Although the shrimp (Noel's amphipod) and three snails were added to the endangered species list in 2005, the Service initially designated only 396.5 acres of critical habitat for the Pecos assiminea; the Service did not designate any critical habitat for the other three species.  In 2009, however, in response to a complaint filed by Forest Guardians (now WildEarth Guardians), the Service agreed to revisit its critical habitat designation.  As a result, the Service designated in its final rule approximately 70.2 acres as critical habitat for the Roswell springsnail and Koster's springsnail, approximately 75.9 acres as critical habitat for the Noel's amphipod, and approximately 494.7 acres as critical habitat for the Pecos assiminea. 

The Service notes in the final rule that, as previously stated in 2005, the primary "threats to the four invertebrates include reducing or eliminating water in suitable or occupied habitat through drought or pumping; introducing pollutants to levels unsuitable for the species from urban areas, agriculture, release of chemicals, and oil and gas operations; fires that reduce or eliminate available habitat; and introducing nonnative species into the invertebrates' inhabited spring systems such that suitable habitat is reduced or eliminated."

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The National Marine Fisheries Service has proposed (pdf) revising the current critical habitat for the Hawaiian monk seal (Monachus schauinslandi) 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.  One article reporting on the proposal states that "[t]he Hawaiian monk seal is facing some of the most severe threats to survival of any federally protected animal."  (The Maui News, June 3, 2011, by Audrey McAvoy.)

The Hawaiian Monk Seal was listed (pdf) as endangered throughout its range under the ESA in 1976.  In 1986, critical habitat for the species was designated at all beach areas, sand splits and inlets, including all beach crest vegetation to its deepest extent inland, lagoon waters, inner reef waters, and ocean waters out to a depth of 18.3 meters around Kure Atoll, Midway Islands (except Sand Island), Pearl and Hermes Reef, Lisiankski Island, Laysan Island, Gardner Pinnacles, French Frigate Shoals, Necker Island, and Nihoa Island.  In 1988, critical habitat was expanded to include Maro Reef and waters around previously designated areas out to the 36.6 meter isobath. 

Comments on the proposed rule must be received no later than August 31, 2011.

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On June 1, 2011, the U.S. Fish and Wildlife Service provided notice of a proposed revision to the Riverside fairy shrimp's designated critical habitat that would add approximately  2,678 acres, raising the total designated critical habitat to approximately 2,984 acres.  The additional lands proposed to be designated are located in Ventura, Orange, Riverside, and San Diego Counties in California.

The proposed revision is to a 2005 final critical habitat designation that identified 306 acres.  The notice recently issued by the U.S. Fish and Wildlife Service states that the proposed revision incorporates "new information specific to Riverside fairy shrimp genetics across the species' range that was not available when we completed our 2005 final critical habitat designation . . . , and new information on the status and distribution of Riverside fairy shrimp that became available since the 2005 critical habitat designation for this species." 

Comments on the proposed designation must be received or postmarked on or before August 1, 2011.

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This week the National Marine Fisheries Service (NMFS) designated (PDF) 3,013 square miles (nearly 2 million acres) of marine habitat in Alaska as critical habitat for the Cook Inlet beluga whale. NMFS listed the species as endangered (PDF) in 2008 under the Endangered Species Act (ESA). Critical habitat was subsequently proposed (PDF) in 2009. The final rule includes several small changes to the areas proposed as critical habitat—most importantly, it excludes the Port of Anchorage for reasons relating to national security as well as portions of military lands.

The beluga whale is a northern hemisphere species that inhabits fjords, estuaries, and shallow waters of the Arctic and subarctic oceans. The Cook Inlet population is numerically the smallest of five distinct stocks recognized in Alaska. The Cook Inlet borders the City of Anchorage and is the most populated and fastest-growing watershed in Alaska.  The final rule announcing the species’ critical habitat will become effective on May 11, 2011.

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The Fish and Wildlife Service, proposed (PDF) today to designate critical habitat for the Chiricahua leopard frog (Lithobates chiricahuensis) under the Endangered Species Act (ESA).  In addition, because of a taxonomic revision of the Chiricahua leopard frog, the Service is reassessing the status of and threats to the species.

The Service proposed designation of approximately 11,136 acres as critical habitat (PDF) for the species.  The proposed critical habitat is located in Apache, Cochise, Gila, Graham, Greenlee, Pima, Santa Cruz, and Yavapai Counties, Arizona; and Catron, Hidalgo, Grant, Sierra, and Socorro Counties, New Mexico.

The species was first listed as threatened in 2002.  At that time, the Ramsey leopard frog, found on the eastern slopes of the Huachuca Mountains in Cochise County, was thought to be a unique species. The Service has since determined that the Ramsey leopard frog is taxonomically identical to the Chiricauhua leopard frog.  As a result, the Service is now reassessing the status of and threats to the species and proposing to continue its protection as threatened under the ESA.  The current listing includes a special rule to encourage owners of occupied ponds to routinely maintain their ponds. Today’s proposal retains that rule.

According to the Center for Biological Diversity, the Chiricauhua leopard frog is threatened by predation from nonnative species, a fungal disease, and habitat degradation from livestock grazing, mining, stream diversions, groundwater pumping and loss of natural fire regimes.

The Service will consider comments on the proposed listing received or postmarked on or before May 16, 2011.
 

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As explained in a previous posting, in November 2010, the U.S. Fish and Wildlife Service designated 187,157 square miles of land in, and sea ice adjacent to, Alaska as critical habitat for polar bear.

Shortly after the final rule was published in the Federal Register, the Alaska Oil and Gas Association (AOGA) sent a sixty-day notice of intent to sue (PDF) the Service, alleging that the designation violates the Endangered Species Act (ESA).

Making good on its notice, on March 1, 2011, AOGA filed a complaint (PDF) in federal court seeking to invalidate the designation, which the trade association claims will cost tens of millions to billions of dollars in project delays and administrative costs--costs that AOGA says the Service unlawfully failed to take into consideration in the final rule.

Specifically, AOGA claims that the Service violated the ESA by:

• Improperly designated areas that lack the physical and biological features "essential to the conservation of the species";
• Improperly including in critical habitat vast areas that lack any present or foreseeable need for special management;
• Underestimating the economic impact of the designation by tens of millions, if not billions of dollars;
• Failing to exclude areas from the designation where the relative benefits of exclusion outweigh the relative benefits of inclusion;
• Failing to base the designation on the best scientific data available; and
• Enacting a "no disturbance zone" extending one mile around all designated barrier island habitat.

Similar suits are expected to follow, since the State of Alaska and a coalition of Native American groups also filed 60-day notices to sue the Service over the designation.

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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.

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The Fish and Wildlife Service (“Service”) announced this week that it has opened a 30-day comment period on revisions to the proposed critical habitat designation for the Sonoma County Distinct Population Segment of the California tiger salamander, and the associated draft economic analysis of the revised proposal. The Service previously revised the proposed critical habitat designation in August 2009 -- after originally proposing the designation in August 2005 -- based on a settlement agreement on the August 2005 proposal. In this week’s notice of availability (PDF), the Service has revised the proposed critical habitat designation to include 50,855 acres, a reduction of 23,368 acres from that proposed in 2009.  Areas proposed for critical habitat contain primary constituent elements needed by the salamanders, such as standing bodies of water for early life stages, upland habitat for the dry season, and accessible areas between occupied habitat so that the species can disperse. The Service explains that primary changes to the proposed critical habitat area include removing urban centers, most of the 100-year floodplain, and areas non-essential to the species from the proposed critical habitat boundary. The revised proposal is intended to align better with the Service's Santa Rosa Plain Conservation Strategy.  

Links to the relevant documents, including a map of the revised area, can be found on the Service’s website. The deadline to submit written comments is February 17, 2010. They may be submitted on-line at the Federal eRulemaking Portal: www.regulations.gov. Follow the instructions for submitting comments to Docket No. FWS–R8–ES–2009–0044.  Comments may alternatively be submitted by mail or hand-delivery to: Public Comments Processing, Attn:( FWS–R8–ES–2009–0044)Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203. Faxes or email are not accepted.  Comments submitted previously do not need to be resubmitted.

The Service will publish the final rule by July 1, 2011.

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On January 8, 2011, a federal district court overruled (pdf) a 2008 decision by the U.S. Fish and Wildlife Service (Service) to reduce the acreage of critical habitat designated for the San Bernardino kangaroo rat from 33,290 acres to 7,779 acres. The Service had initially designated the 33,290 acres in 2002, but decreased the amount (pdf) in 2008 after a lawsuit successfully challenged the designation. The district court’s ruling reinstates the area designated as critical habitat in the 2002 rule (pdf) in San Bernardino and Riverside counties until a revised designation is completed.

In the decision, the United States District Court for the Central District of California held that the Service had violated the Endangered Species Act (ESA) by improperly relying on “core populations” of the kangaroo rat to determine critical habitat. The court reasoned that the Service was required by the ESA to define critical habitat by evaluating the physical and biological features essential for the kangaroo rat’s conservation, rather than solely relying on habitat areas that support the species’ core populations.

Activities within areas designated as critical habitat for the species that also have a federal nexus may be subject to regulatory requirements that would not otherwise be imposed. According to the San Bernardino Sun, mitigation costs added approximately $650,000 to the Greenspot Road bridge project completed a few years ago in the habitat area. Two new bridges are slated to be built in the new critical habitat areas, with combined mitigation costs estimated at $2.4 million.
 

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On December 14, 2010, the U.S. Fish & Wildlife Service published its final rule (PDF) redesignating critical habitat for the Santa Ana sucker, a small fish species occurring in watershed draining the San Gabriel and San Bernardino mountains of southern California.  The Final Rule designates a total of 9,931 acres across San Bernardino, Riverside, Los Angeles, and Orange counties and is comprised of 7,097 acres in the Santa Ana River, 1,000 acres in the San Gabriel River, and 1,233 acres in Big Tujunga Creek.  The Final Rule increased the sucker’s net critical habitat by approximately 1,026 acres over the Service’s 2005 rule (PDF).

The Santa Ana sucker was listed as threatened in the Santa Ana River, San Gabriel River, and Big Tujunga Creek in 2000.  In 2005, the Service designated critical habitat for the sucker in the San Gabriel River (5,765 acres) and Big Tujunga Creek (2,540) totaling 8,305 acres.  In the 2005 final rule, the Service did not designate critical habitat for those portions of the Santa Ana River covered by habitat management plans--the Western Riverside Multiple Species Habitat Conservation Plan and the Santa Ana Sucker Conservation Program--consistent with established policy.  Nor did the Service designate portions of the Santa Ana River not covered by habitat management plans, which are also unoccupied.  In its 2005 final rule the Service explained that although these areas provide necessary flood conditions and sediments and small cobblestones that is passes to the downstream area occupied by the sucker, those features alone are not sufficient to meet the statutory required statutory standard --“essential to the conservation of the species” -- particularly in light of Congressional direction to be “exceedingly circumspect” in designating critical habitat outside of areas currently occupied by the species. 

In its 2010 Final Rule the Service performs an about-face, which is evident in new critical habitat designation of 7,097 acres in the Santa Ana River.  The Service lifts the exclusion of those portions of the Santa Ana River subject to the Western Riverside Multiple Species Habitat Conservation Plan (approved in 2004) and the Santa Ana Sucker Conservation Program (2000) because they have not yet been sufficiently implemented to yield benefits to the sucker.  The Service continues its reversal by designating as critical habitat upstream unoccupied areas in the Santa Ana River based on necessary water flows and coarse sediments deemed essential for the conservation of the species. 

Acreage reductions in the San Gabriel River and Big Tujunga Creek units, as well as mapping changes within the Santa Ana River critical habitat unit, reflect refined mapping capabilities, changes to the criteria used to identify critical habitat, such as a slope limit of 7 degrees, and reevaluation of the 2005 rule, which, was compelled by court order from the U.S. District Court of the Central District of California as a result of a stipulated settlement agreement with California Trout and other environmental groups.

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On November 24, 2010, the U.S. Fish and Wildlife Service announced a final rule (PDF) designating 187,157 square miles of on- and off-shore habitat in northern Alaska as critical habitat for two populations of polar bear listed as threatened under the Endangered Species Act. 

The Service originally proposed to designate 200,541 square miles of critical habitat.  However, the final designation removed land that turned out to lie beyond the U.S. territorial waters, five U.S. Air Force (USAF) radar sites, the Native communities of Barrow and Kaktovik, and all existing man-made structures.  According to the Service, the radar sites are already subject to Integrated Natural Resource Management Plans, and the Native communities have a history of coordinating with the Service regarding polar bear management and conservation.

Because approximately 95% of the designated habitat consists of sea ice in the Beaufort and Chukchi Seas where oil and gas development occurs, there has been significant concern about the new rule's economic impact on industry, landowners, Alaska Native Regional Corporations, and other stakeholders.  According to the Service's economic analysis (PDF 10MB), the designation of critical habitat will not result in any significant incremental economic impact because the polar bear is already protected under the Endangered Species Act as a threatened species, under the Marine Mammal Protection Act of 1972 (MMPA), and under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) signed in 1973.  Thus, activities such as oil and gas exploration and production that require federal permits or other approvals are already subject to incidental take regulations.  As a result, the Service has determined that designation of critical habitat will not result in additional polar bear conservation measures, and thus economic impacts are forecast to be limited to additional administrative costs.

Nevertheless, stakeholders are concerned that the designation of critical habitat will spur litigation, which creates regulatory uncertainty and discourages investment.

The final rule will become effective 30 days after it appears in the Federal Register.

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On November 30, 2010, the United States Fish and Wildlife Service ("Service") designated approximately 783 acres of land in Riverside and San Diego Counties, California, as critical habitat for the plant San Diego ambrosia (Ambrosia pumila).  This is approximately 329 acres less than the Service had previously proposed.  The Service's designation excluded approximately 118 acres of critical habitat that fell within the Western Riverside County Multiple Species Habitat Conservation Plan.  In its final economic analysis, the Service estimated that the critical habitat designation would have an incremental cost of less than $9,000 over the next 20 years. 

San Diego ambrosia is distributed from northwestern Riverside County to northwestern Baja California, Mexico.  It grows approximately 2 to 12 inches high and produces yellowish to greenish-colored flowers.

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The U.S. Fish and Wildlife Service (“Service”) announced this week the final rule for the revised 2005 critical habitat designation for the bull trout, a threatened species under the Endangered Species Act. The 2005 critical habitat designation had been struck down by a federal court last year after an inspector general’s report found improper political influence during the rulemaking process. 

The final rule, which will become effective November 17, 2010, identifies 32 critical habitat units on 3,500 water body segments across five states.  Approximately 18,975 miles of streams and 488,252 acres of lakes and reservoirs in Idaho, Oregon, Washington, Montana, and Nevada are being designated as critical habitat for the species.  An additional 754 miles of marine shoreline are also being designated in Washington.  While critical habitat for bull trout applies only to waterways, the rule recognizes that associated flood plains, shorelines, riparian zones, and upland habitat are important to critical habitat areas and that activities in these areas may affect bull trout critical habitat as well.

When compared to the proposed rule issued by the Service in January, the designation shows a net reduction of approximately 12.5% of the streams, 8.5% of lakes, and 23.5% of marine shoreline habitat.  According to the Service, these changes reflect new biological information received during the comment period resulting in the addition of some habitats and the removal of others, and exclusion of specific areas under section 4(b)(2) of the Act based on ongoing conservation measures, activities, agreements, and other factors.  For more information the proposed rule, see our earlier post. 

Bull trout are primarily threatened by habitat degredation and fragmentation, blockage of migratory corridors, poor water quality, the effects of climate change and past fisheries management practices.

The final rule will be published in the Federal Register on October 18, 2010.  For a YouTube video on the bull trout, click here.

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The Fish and Wildlife Service issued a final rule (pdf) designating critical habitat for spreading navarretia (Navarretia fossalis), a plant species native to southern California.  The rule designates approximately 6,720 acres of land as critical habitat for the species in five southern California counties: Los Angeles, Riverside, San Diego, San Luis Obispo, and Ventura.  In a previous rule issued in 2005, the Service had designated approximately 652 acres as critical habitat for the species.  The Center for Biological Diversity filed a lawsuit against the Service in the United States District Court for the Southern District of California challenging the prior rule, and the parties eventually entered into a settlement whereby the Service agreed to revise that rule.

According to the Service (pdf), spreading navarretia is an annual herb that grows between 4 and 6 inches tall.  It is primarily found in vernal pool, alkali grasslands, alkali playas and alkali sinks.

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For the second time in two months, the United States Court of Appeals for the Ninth Circuit rejected an industry challenge to a designation of critical habitat under the Endangered Species Act (“ESA”).  In Home Builders Association of Northern California v. United States Fish and Wildlife Service (PDF), the court upheld the designation of 858,000 acres of land in California as critical habitat for fifteen vernal pool species.

The ESA prohibits federal agencies from approving actions that “adversely modify” critical habitat.  The court rejected Home Builders’ claim that the ESA limited the designation of critical habitat to those areas that contain all (rather than some) of the physical or biological features essential to the conservation of the vernal pool species. The court also rejected the claim that, in designating critical habitat, the Fish and Wildlife Service is required to determine when the protected species are required to be conserved.  Following its recent decision in Arizona Cattle Growers’ Assn. v. Salazar, 606 F.3d 1160 (9th Cir.  2010), the court upheld the Service’s analysis of the economic impacts of the critical habitat designation.  The court concluded that, unlike the National Environmental Policy Act, the ESA does not require the Fish and Wildlife Service to evaluate cumulative impacts of the critical habitat designation.

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In Arizona Cattle Growers’ Association v. Salazar (PDF), the U.S. Court of Appeals for the Ninth Circuit upheld a Fish and Wildlife Service (“Service”) determination that under the Endangered Species Act (“ESA”), critical habitat for the threatened Mexican spotted owl is not limited to areas where the owl actually resides, but can encompass areas that the owl uses with sufficient regularity that it is likely to be present during a reasonable span of time.  That standard means the thousands of miles of migratory bird flyways used by ESA-listed birds could become protected critical habitat. The decision also held that when implementing the ESA’s requirement to decide whether the costs of designating an area as critical habitat outweigh the benefits, the Service need not include costs caused by the critical habitat designation if such costs can also be attributed to listing the species.

Arizona Cattle Growers’ made two arguments on appeal: (1) that the Service impermissibly treated areas in which no owls are found as “occupied" under the ESA, and (2) in the Service’s determination of the economic impacts of the critical habitat designation, the Service used a “baseline” approach that did not account for economic impacts of the critical habitat designation that are also attributable to the listing decision.

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The Court of Appeals for the Ninth Circuit upheld the Fish and Wildlife Service's ("Service') no "adverse modification" determination despite the fact that the proposed project would destroy some critical habitat.

In Butte Environmental Council v. U.S. Army Corps of Engineers (PDF), environmental plaintiffs challenged the Service's biological opinion finding that a proposed business park to be located along Stillwater Creek in Redding, California would not adversely modify the critical habitat of the threatened vernal pool fairy shrimp, endangered vernal pool tadpole shrimp, and the threatened slender Orcutt grass.  The Service had determined that the proposed project contained 356.6 acres of critical habitat shared by the vernal pool fairy shrimp and vernal pool tadpole shrimp.  The Service concluded that the project would destroy 234.5 acres of this critical habitat, which was equal to 0.04% of the fairy shrimp's total critical habitat nationwide and 0.10% of the tadpole shrimp's total critical habitat nationwide. 

The court rejected each of the plaintiff's arguments challenging the Service's determination that the project would not adversely modify the critical habitat of the listed species.  First, plaintiff argued that the Service applied an improper definition of "adverse modification" and did not account for the "recovery needs" of the affected species, as required by the court's previous decision in Gifford Pinchot Task Force v. U.S. Fish & Wildlife Services.  In Gifford Pinchot, the court held that the regulatory definition of "adverse modification" contradicted Congress's command and that the definition of adverse modification of critical habitat was properly a direct or indirect alteration that appreciably diminishes the value of critical habitat for the survival or recovery of a listed species.  The court rejected plaintiff's contention, citing the Service's statement in the biological opinion that it did not rely on the regulatory definition of "destruction of adverse modification" but relied upon the statute and the court's decision in Gifford Pinchot.  

Second, despite the fact that the proposed project would destroy 234.5 acres of critical habitat for the fairy shrimp and tadpole shrimp, the court explained that an area of a species' critical habitat can be destroyed without appreciably diminishing the value of the species' overall critical habitat.  The court noted that the project would only affect a very small percentage of the total critical habitat for the listed species. While the plaintiff argued that the Service's focus on the project's impact on the species' total critical habitat masked the project's localized impact, the court stated that where "there is no evidence in the record that 'some localized risk was improperly hidden by use of large scale analysis, we will not second-guess the [Service].'"  

Finally, the court rejected plaintiff's argument that the Service failed to address the rate of loss of critical habitat, stating that the Endangered Species Act did not require the Service to calculate rate of loss.

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On May 27, 2010, the United States District Court for the District of Columbia issued a decision rejecting a challenge to the U.S. Fish and Wildlife Service's critical habitat determination for the endangered San Diego fairy shrimp, concluding that the Service's determination was entitled to deference. 

Under the terms of the Endangered Species Act, the Service is required to designate, to the maximum extent practicable, critical habitat for an endangered or threatened species concurrently with a final listing rule.  Critical habitat is defined, in part, as "the specific areas within the geographical area occupied by the species, at the time it is listed . . . ." 

Although the Service issued a final rule listing the San Diego fairy shrimp as endangered on February 3, 1997, it did not issue a final rule designating critical habitat until October 2000.  This designation, however, was short lived, because in response to a legal challenge by several industry groups, the Service sought a voluntary remand for further consideration.  In December 2007, the Service issued a revised final rule designating critical habitat for the fairy shrimp, this time designating, among other tracts of land, approximately 275 acres of land owned by plaintiffs.  

Plaintiffs filed an action challenging the Services second critical habitat designation, asserting that there was no evidence that the fairy shrimp occupied their property in 1997, when the species was listed.  The Court rejected plaintiffs' challenge, finding that, based on surveys conducted in 2001, and the fairy shrimp's sedentary life cycle, it was reasonable for the Service to conclude that fairy shrimp occupied the premises in 1997.

Plaintiffs also challenged the critical habitat designation on the basis that the Service failed to properly consider the economic impact of its designation.  Again, however, the Court deferred to the Service's determination, and upheld the Service's analysis of the economic impacts of its designation.

The deference shown by the Court in this case is common in much Endangered Species Act litigation, as such litigation often falls under the Administrative Procedure Act, which authorizes a reviewing court to set aside an agency action only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."

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For the third time in nine years, the Fish and Wildlife Service has revised the designation of critical habitat for the California red-legged frog. The new designation includes 1.6 million acres in 20 counties in California. 75 Fed. Reg. 12,816 (Mar. 17, 2010) (PDF). The revised designation increases the amount of critical habitat by over one million acres from the 2006 critical habitat designation (PDF). The revised designation represents a decrease of approximately 2.4 million acres from the 2001 designation (PDF). The Service revised the prior designations in response to litigation brought by the building industry and by environmental groups. The red-legged frog is widely known as the protagonist in Mark Twain’s The Celebrated Jumping Frog of Calaveras County. The designated critical habitat includes land in the Sierra foothills, the Sacramento and San Joaquin Valleys, the Bay Area, the Central Coast and Southern California.

The revised designation reflects a continuation of policies adopted by the Clinton Administration and the Bush Administration to exclude from critical habitat certain areas within approved habitat conservation plans (“HCPs”). The critical habitat designation excludes areas covered by three HCPs: Bonny Doon, East Contra Costa and Western Riverside. Reflecting a nuanced changed in Service policy, the designation also excludes certain lands managed under other state or local conservation programs. The Service concluded that “judicious exclusion of specific areas of non-federally owned land from critical habitat designations can contribute to species recovery and provide a superior level of conservation than critical habitat alone.”

The Service also excluded several national defense installations from the designation where the military installations had adopted an integrated national resource management plan under the Sikes Act. Congress amended the Endangered Species Act in 2003 to authorize exclusions of defense installations subject to Sikes Act integrated natural resource management plans. 16 U.S.C.§ 1533(a)(3)(B)(i).

The Service estimated the total economic cost of protecting the red-legged to be approximately $1.34 billion and estimated the incremental economic cost of the revised critical habitat designation to be approximately $500 million.
 

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As reported in The Daily News Online, the Fish and Wildlife Service will be holding a public meeting on Wednesday, March 3, 2010 at the Water Resources Education Center in Vancouver, Washington to inform the public and address questions on its proposal to expand critical habitat (PDF) for the threatened bull trout.  For more information on the proposed expansion, see the previous post Fish and Wildlife Service Proposes Revision of Critical Habitat for Bull Trout. 

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On February 11, 2010, the Fish and Wildlife Service reported that it will not be designating critical habitat for the Florida panther. This announcement comes in response to petitions submitted to the Service by several environmental groups including the Sierra Club and the Center for Biological Diversity requesting designation of 3 million acres of land in south Florida as critical panther habitat.

The Service determined that critical habitat designation is not in the best interest of the Florida panther at this time but retained discretion to designate habitat at a later time. In lieu of designating critical habitat, the Service plans to implement a series of habitat conservation projects outlined in its Florida Panther Recovery Plan (PDF), which includes conservation efforts proposed jointly by environmental organizations and landowners.

In a statement (PDF) issued by the Service, the Service explained that:

A public-private partnership approach is essential for recovery of the Florida panther since so much of the panther’s habitat is privately owned. A critical habitat designation so closely following the finalization of the Florida Panther Recovery Plan would possibly undermine the long-term strategy outlined in the plan to constructively engage private landowners; State, Federal, and local agencies; and other interested groups and members of the public. This dialogue is a key part of addressing the human dimension aspects of panther recovery.

While some environmental groups support the Service’s approach to protecting the panther, which includes establishment of conservation banks that protect large parcels of habitat and implementation of wildlife crossings to help panthers safely cross roads, others do not think the Service’s plan goes far enough. On February 18, 2010, five environmental groups, including the Sierra Club, filed a lawsuit (PDF) against the government in federal court claiming that the Service has failed to protect the Florida panthers as required by the Endangered Species Act. The lawsuit requests the court to remand the matter back to the Service and to order the Service to undertake prompt rulemaking in order to designate 3 million acres of south Florida land and additional land to the north as critical habitat.

The Florida panther has been a federally protected endangered subspecies since 1967. Today’s population is estimated at around 100 panthers. They occur primarily in southwest Florida.

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On January 13, 2010, the Fish and Wildlife Service proposed to revise its 2005 designation of critical habitat for the bull trout (Salvelinus confluentus), a species that has been protected under the Endangered Species Act (“ESA”) since it was listed as threatened in 1999. 

The proposed rule (PDF) represents a dramatic increase in critical habitat from that currently designated under the 2005 rule.  The rule as revised includes approximately 22,679 miles of streams and 533,426 acres of lakes and reservoirs in Idaho, Oregon, Washington, Montana and Nevada, which is a 79% increase in total miles of streams and 74% increase in total acres of lakes and reservoirs designated as critical habitat for the bull trout (see the Service's comparison (PDF) of area 2005 critical habitat to area proposed).

The proposed revision comes as the result of a 2006 Federal lawsuit in the U.S. District Court for the District of Oregon filed by the Alliance for the Wild Rockies and Friends of the Wild Swan, alleging that the Service failed to designate adequate critical habitat and unlawfully excluded areas from the final designation.  The Service notified the court in March 2009 that it would seek a remand of the 2005 final rule based on an Investigative Report by the Department of the Interior Inspector General that found a former Department of the Interior political appointee had interfered with the designation by directing large areas to be excluded from what had been proposed and by not allowing the inclusion of any areas unless there was absolute certainty that bull trout were present.

The proposed revision is different from the 2005 final designation in that the Service is not excluding any areas that have been determined to be essential to the conservation of the species. This translates into the following changes to the rule:

• 929 miles (about 4% of the total designation) of unoccupied habitat now designated as critical habitat whereas no unoccupied habitat was included in the 2005 designation;
• 165.9 miles of streams now designated as critical habitat in the Jarbidge River basin where as no critical habitat was previously designated in the Jarbidge River basin;
• no automatic exclusions for Federal lands with management plans that were previously excluded from critical habitat designation under section 4(b)(2) of the ESA; and,
• one additional Primary Constituent Element related to the presence of nonnative fish that may prey on, compete with, or inbreed with, bull trout.

The Service estimates that the revised habitat designation will cost an additional $5 to $7 million per year over the next 20 years from increased administrative costs. Comments on the proposed critical habitat revision and draft economic analysis will be accepted by the Service until March 15, 2010.

More information can be found on the Service's bull trout page. 

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