FTA and FHWA Issue New MAP-21 Guidance That Could Penalize Wildlife Agencies

The Moving Ahead for Progress in the 21st Century Act (MAP-21), Pub. L. 112-141, governs Federal funding and authorization for certain surface transportation projects.  Included in MAP-21 is a provision requiring all Federal agencies with approval authority over a specific category of transportation projects to render a decision on an expedited basis.  23 U.S.C. 139 (h)(6).  Specifically, MAP-21 states that when the Federal Transit Administration (FTA) and/or Federal Highway Administration (FHWA) are required to prepare an environmental impact statement or environmental assessment for a "highway project, public transportation capital project, or multimodal project," any other Federal agency that has the authority to issue or deny a permit, license, or other approval related to the project shall act by:  "(I) the date that is 180 days after the date on which an application for the permit, license, or approval is complete; and (II) the date that is 180 days after the date on which the Federal lead agency issues a decision on the project under the National Environmental Policy Act of 1969."  23 U.S.C. 139(h)(6)(B)(i)(I) and (II).  Further, if the Federal agency fails to act within this time period, MAP-21 authorizes the rescission of federal funds from the delinquent Federal agency.  23 U.S.C. 139(h)(6)(B)(i).  Depending on the type of project, and subject to certain caps, the penalty could amount to as much as $20,000 per week for each week until a final decision is made.  

On March 28, 2014, the FTA and FHWA issued a joint guidance document interpreting the penalty provisions described above.  Notably, the joint guidance document states that the penalty provisions apply to, among other decisions, "determinations, concurrences, and other information that concludes an informal or formal consultation process [under the Endangered Species Act] that is necessary in order for a project to proceed."  Thus, at first blush, it appears that the penalty provision might finally spur the Federal wildlife agencies to complete their formal section 7 consultations in a somewhat timely manner (while the Endangered Species Act establishes a 135-day deadline for completion of formal section 7 consultations, the Federal wildlife agencies routinely fail to meet this statutory time period).  However, the joint guidance document also provides a get out of jail free card. 

As explained in the joint guidance document, the 180-day clock will not begin until the Federal agency confirms receipt of a "complete" application or formal request.  And, the FTA and FHWA have decided to leave the Federal agency with the "responsibility to make the determination of whether an application or formal request for a permit, license, or other approval is complete and track the 180-day period for their review."  Thus, as explained in the joint guidance document, a Federal agency can avoid any penalties if it deems the application or formal request incomplete, and provides the FTA or FHWA with a similar notification.  As explained in the joint guidance document, a Federal agency can also stop the clock, even if it has received a complete application, if it "routinely requests additional information from the applicant as it progresses through its review."  In this situation, the 180-day clock would not start again until the Federal agency confirms receipt of the additional information.

The joint guidance document also explains that a Federal agency can avoid penalties by requesting a "no-fault certification" demonstrating that the agency is not able to render a decision because it has not received necessary information from another agency, or there is significant new information or circumstances that require additional analysis. 

In light of the budget cuts already impacting a number of Federal agencies (e.g., EPA, U.S. Fish and Wildlife Service, National Marine Fisheries Service, Army Corps of Engineers), the ability to avoid weekly penalties of up to $20,000 by simply requesting additional information may be too tantalizing to pass up.  And, if that is the case, do the penalty provisions actually expedite the necessary review or slow it down?   

Proposed Bill Seeks to Require Federal Agencies to Count Species on State, Tribal, and Private Lands before Listing the Species under the ESA

Republican Congressman Chris Stewart (UT) recently introduced a bill (pdf) that would amend the Endangered Species Act (ESA) to require federal wildlife agencies to include the number of species found on state, tribal, and private lands in its official count when determining whether a species should be protected under the ESA.  Currently, the ESA does not include a specific requirement regarding how to account for a species’ population.  Rather, federal agencies are required to use the “best scientific and commercial data available” when determining whether a species is endangered or threatened.

According to a report by Jessica Estepa from E&E News, the legislation was introduced to address a specific issue with the Utah prairie dog (Cynomys parvidens), which is found in Rep. Stewart’s district.  The number of individuals found on state, tribal, and private lands – land that is currently not being considered by federal agencies when evaluating whether to list the prairie dog – could be in the thousands and may impact the determination of whether the species is on the path to recovery.

Congressional Working Group Seeks Reform of the Endangered Species Act

Members of the Endangered Species Act (ESA) Congressional Working Group recently released a final report (pdf) asserting that the ESA “is not working” and providing four recommendations for improvement.

The report is the result of an eight-month effort led by Republican Representatives Doc Hastings (WA) and Cynthia Lummis (WY) to examine the ESA. The group received input from hundreds of individuals on how the ESA is currently being implemented, and whether it could be updated to be more effective. The report concludes that “[a]fter more than 40 years, sensible, targeted reforms would not only improve the eroding credibility of the Act, but would ensure it is implemented more effectively for species and people.” According to the working group, only 2 percent of targeted species have been removed from the ESA list. The top recommended improvements include focusing on species recovery and delisting, improving scientific transparency, reforming litigation and settlement practices, and improving state and local participation.

Critics claim that the report is misleading since 99 percent of the species protected under the ESA have been saved from extinction, such as the bald eagle and the gray wolf, with over hundreds of species on the path towards recovery. Others claim it is unlikely that any proposed changes will succeed due to the strong political divide in Washington.

Congress to Consider Exempting "Three Amigos" Antelopes from Endangered Species Act

The U.S. Senate is set to consider exempting three antelope species from protection under the Endangered Species Act (ESA). The scimitar-horned oryx (Oryx dammah), the dama gazelle (Gazella dama), and the addax antelope (Addax nasomaculatus) - affectionately known as the “Three Amigos” - were exempted from 2005 until 2012, when the U.S. Fish and Wildlife Service relisted the species as endangered.

On January 15, the U.S. House of Representatives passed a $1.1 trillion spending bill (pdf) that would fund the federal government through the remainder of fiscal year 2014. Included in the bill is a rider that directs the Secretary of the Interior to reinstate the exemption that applied to the Three Amigos until 2012.

Proponents of the rider argue that, since the Three Amigos were relisted as endangered, their populations have fallen significantly. They claim that estimates of the scimitar horned oryx put its population at half of its 2010 population level. Proponents believe that exempting the Three Amigos from ESA protections will incentivize ranchers to maintain their populations in order to profit from hunting revenue.

Opponents of the rider argue that the exemption should not be reinstated because it would lead to the killing of near-extinct animals for recreational purposes. They point to the fact that current law allows for the hunting of the Three Amigos in captivity, but only after obtaining a federal conservation permit. Moreover, opponents are concerned that allowing such a rider to pass will set a precedent for Congress to more frequently exempt endangered species from the protections of the ESA.

The rider was introduced by Representative John Carter (R-Tex.), who stated “It’s time for the federal government to step out of the way, because ESA status has been deadly for these species. An ESA exemption would give these species real value, and that, in turn, clears the way for their numbers to go back up.”

The bill now goes to the Senate for consideration.
 

Senate Introduces Bill to Amend Endangered Species Act

A bill (pdf) to amend the Endangered Species Act (ESA)—entitled the Endangered Species Management Self-Determination Act (Bill)—has been introduced in the United States Senate. The Bill, authored by Senators Rand Paul (R-Ky.), Mike Lee (R-Utah) and Dean Heller (R-Nev.) and by Representative Mark Amodei (R-Nev.), seeks to make two fundamental changes to the ESA: to alter the balance of power between states and the federal government, and to provide new property rights to landowners impacted by the ESA.

First, the Bill would tip the balance of authority to manage protected species in favor of the states and away from the federal government. Currently (pdf), the ESA requires the Secretary of the Interior or the Secretary of Commerce, as applicable (collectively, “Secretary”), to determine whether to list a species as endangered or threatened, and to promulgate regulations to protect listed species.

The Bill would change this process by requiring the Secretary to obtain the consent of the governor of each state in which a species is present prior to listing the species under the ESA. Put another way, only after the Secretary receives such consent could the Secretary list a species as endangered or threatened. The listing would also have no legal effect until approved by Congress. If Congress approves the listing, then the Secretary could promulgate regulations to protect the species. Any listed species would automatically be removed from the list after five years.

The Bill also gives governors the option to regulate wholly intrastate threatened and endangered species. Under the Bill, each governor, at his or her sole discretion, may determine that a species is intrastate, and that the state, as opposed to the federal government, will manage that species. If the governor makes this determination, he or she will have the exclusive authority to promulgate or enforce regulations, designate critical habitat, issue permits or licenses, and develop and implement recovery plans. The Bill provides that any determination by a governor is not judicially reviewable in any federal or state court.

Second, the Bill would add a new section entitled “Property Rights” to the ESA. The proposed section would allow a landowner to submit to the Secretary (the section would not apply if the state had decided to manage the species) an application that includes any proposed use of his or her land, and the Secretary must respond within 90 days with a written determination as to whether the proposed use would violate the ESA. If the Secretary delays more than 90 days in responding, the proposed use is deemed permissible.

If, however, the Secretary determines that the use does not comply with the ESA, the landowner may then seek compensation for this restriction placed on the use of his or her land. If the landowner’s property value was reduced by more than 50 percent as a result of the Secretary’s determination, the Secretary must then pay the landowner 150 percent of fair market value of the land.
 

House Passes Healthy Forests Bill that Would Amend ESA with Respect to Forest Reserve Projects

On September 20, 2013, H.R. 1526, the Restoring Healthy Forests for Healthy Communities Act (pdf), was passed by the House of Representatives by a vote of 244-173. Shortly thereafter, the bill was referred to the Senate Committee on Energy and Natural Resources. Notably, H.R. 1526 includes provisions that, for certain projects authorized under the bill, would alter the way interagency consultation is conducted under section 7(a)(2) of the Endangered Species Act (ESA) and would foreclose parties from seeking relief in federal court prior to obtaining a final, unappealable decision on the merits.

The bill was introduced in the House of Representatives by Congressman Doc Hastings (R-Wash,) and has 22 co-sponsors. Its principal stated purpose is to “restore employment and educational opportunities in, and improve the economic stability of, counties containing National Forest System land, while also reducing Forest Service management costs, by ensuring that such counties have a dependable source of revenue from National Forest System land.” Section 103(a) of the bill calls for the Secretary of Agriculture to designate Forest Reserve Revenue Areas for each unit in the National Forest System. Section 104(a) authorizes and encourages the Secretary to commence covered forest reserve projects in Forest Reserve Revenue Areas.

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House Republicans Scrutinize Endangered Species Act Lawsuits

Today, the House Natural Resources Committee is holding a full committee oversight hearing on species conservation efforts undertaken at “on-the-ground-levels” in an effort to compare those efforts with the effectiveness of Endangered Species Act (ESA) lawsuits. The hearing, entitled Defining Species Conservation Success: Tribal, State and Local Stewardship vs. Federal Courtroom Battles and Sue-and-Settle Practices, is the first in a series of hearings planned by the House to review the effectiveness of conservation efforts under the ESA.

Natural Resources Committee Chairman Doc Hastings (R-WA) said of today’s hearing that it “will provide an opportunity to hear what is working well right now at the state, tribal, and local levels as opposed to ESA-related litigation that divert time and resources away form actual recovery efforts.” He also noted: “Many states, tribes and local communities are effectively implementing conservation efforts to help species. Those closest to the species know firsthand how to protect species better than distant bureaucrats and litigious groups who often hinder the ESA through lawsuits and closed-door settlements.”

For their part, many House Democrats and environmentalists argue that ESA lawsuits are a legitimate measure in their arsenal for protecting endangered and threatened species. For example, Brett Hartl, endangered species director with the Center for Biological Diversity (CBD), said “Representative Hastings and his Republican colleagues are disturbingly out of step with most Americans, who overwhelmingly support protecting endangered species from extinction.” CBD is a frequent litigant in these ESA lawsuits. Hartl championed efforts by citizen and non-profit groups like CBD, stating, “[t]he lesser prairie chicken and sage grouse have declined by at least 90 percent over the past 100 years, but it wasn’t until citizens petitioned and sued to get protection for these animals that concrete state, local and private conservation efforts to save them from extinction began.”

Tomorrow, the House Judiciary Committee will hold a hearing on the “Sunshine for Regulatory Decrees and Settlements Act,” which would require agencies entering into consent decrees and settlement agreements to publish proposed versions of those agreements for public review and comment prior to entering into them. The bill is sponsored by Sen. Chuck Grasseley (R-IA) and Rep. Doug Collins (R-GA). The bill previously passed the House last year, but died in the Senate.

Republicans argue that the proposed bill would close a back door that environmentalists use to circumvent the usual rulemaking process. John Walke, the clean air and climate change director for the Natural Resources Defense Council disagrees, arguing that the proposed bill “is designed to obstruct enforcement of federal health, safety, environmental and consumer protection laws” and allow industry to exert undue influence over court actions.

The Judiciary Committee hearing will be held tomorrow, June 5, at 10 a.m.
 

Idaho Enacts Law Declaring the State has Primacy over Resident Fish and Wildlife

The State of Idaho enacted a law (pdf) this spring asserting that the State has “primacy over the management of fish and wildlife.” The law was introduced as Senate Bill 1061 and signed into law by Governor Butch Otter on March 22, 2013. In addition, the law states that “introduction or reintroduction of any federally listed species onto lands within the state or into state waters, including those actions that would impair or impede the state's primacy over its land and water, without state consultation and approval is against the policy of the state of Idaho.” The law plainly is intended to provide State officials with an additional tool as it negotiates with federal officials regarding threatened and endangered species. As one reporter who covered the enactment of the law explained,

“In theory, the bill gives the state final say on whether or how endangered or threatened plants and animals are introduced in the state. Reality could be different, though…”

(Capitol Press, May 13, 2013 by Sean Ellis.) The Supremacy Clause, Article VI, clause 2, of the U.S. Constitution, establishes that federal law is supreme provided it is consistent with the Constitution. Together with the federal Endangered Species Act, the Supremacy Clause likely limits the effect of this Idaho law.

Proposed Rule Would Regulate U.S. Navy's Impact on Marine Mammals

On January 31, 2013, the National Marine Fisheries Service (NMFS) issued a proposed rule to regulate the impact of United States Navy exercises on marine mammals.  The rule would affect areas off the Southern California, Atlantic, and Hawaiian coastlines. 

The proposed rule is in response to the Navy’s request for authorization to incidentally take (e.g., harm or kill) 62 species of marine mammals as a result of training exercises.  The proposed rule would authorize over 31 million takes during a five-year period.

All of the 62 species at issue are protected under the Marine Mammal Protection Act, which generally prohibits the unauthorized take of marine mammals.  In addition, eight species (blue whale, humpback whale, fin whale, sei whale, sperm whale, the Hawaiian insular stock of false killer whale, Guadalupe fur seal, and Hawaiian monk seal) are listed as threatened or endangered, and afforded protection under the Endangered Species Act.  The Navy will be consulting with NMFS to further discuss mitigating any impacts on these eight species.

The comment period for the proposed rule ends on March 11.

Northern California House Members Introduce Bill to Raise a Hurdle to Bay Delta Conservation Plan

Recently, House Representatives John Garamendi (D-Fairfield, CA), Jerry McNerney (D-Stockton, CA), Doris Matsui (D-Sacramento, CA), George Miller (D-Martinez, CA), and Mike Thompson (D-St. Helena, CA) introduced H.R. 6484 (pdf), a bill entitled the SAFE Levee Act. The bill would authorize the Secretary of the Interior to provide assistance to local interests for levee stability improvements within the Sacramento-San Joaquin Delta and require the Secretary of the Interior to carry out a cost-benefit analysis of water conveyance options being considered in the Bay Delta Conservation Planning process.

Efforts to reinforce Delta levees can draw wide support, as this article on the Coalition to Support Near Term Delta Projects suggests (Sacramento Bee, Oct. 16, 2012, by Matt Weiser).  At the same time, levee reinforcement and expansion has the potential to undermine efforts to halt and reverse the destruction of tidal and floodplain areas within the Delta that provide habitat for multiple, at-risk, native species.  Both the Army Corps of Engineers and the Federal Emergency Management Agency have been sued in recent years by parties concerned that their levee and floodplain policies harm at-risk, native species including species listed under the Endangered Species Act.  We reported on the legal actions here and here.

While the sponsors emphasize the provisions of the bill that support levee stability improvements in the Delta, the cost-benefit requirement it would impose with respect to the Bay Delta Conservation Plan water conveyance alternatives is designed to add an additional hurdle to an already complicated regulatory process.  All of the co-sponsors of the bill have spoken out publicly against the Bay Delta Conservation Plan, as this July 25, 2012, press release, entitled "California Representatives Condemn the Bay Delta Conservation Plan, demonstrates.

 

Governor Signs Legislation Amending Fish and Game Code in Response to Input from Strategic Vision Process

Part I: Assembly Bill 2402 (Huffman)

On September 25, 2012, Governor Jerry Brown signed Assembly Bill 2402 and Senate Bill 1148, which make a number of changes to the Fish and Game Code, into law.  AB 2402 was sponsored by Assemblyman Jared Huffman and SB 1148 by Senator Pavely and these bills will implement a number of recommendations that emerged from a Strategic Vision process for the Department of Fish and Game and the Fish and Game Commission that took place during 2011 and 2012.  SB 1148 will be discussed in Part II of this update.

The key provisions of AB 2402 are described below.

  • Section 8 changes the name of the Department of Fish and Game the Department of Fish and Wildlife.  Other sections of the legislation make conforming changes to other provisions of the California Code.  Notably, the legislation does not change the name of the Fish and Game Commission.
  • Section 10 states that it is the policy of the State of California that “the department and commission use ecosystem-based management informed by credible science in all resource management decisions to the extent feasible,” and “scientific professionals at the department and commission, and all resource management decisions of the department and commission, be governed by a scientific quality assurance and integrity policy, and follow well-established standard protocols of the scientific profession, including, but not limited to, the use of peer review, publication, and science review panels where appropriate."
  • Section 11 states that it is the policy of the State of California that the department and commission will seek to create, foster, and actively participate in partnerships to achieve shared goals and integrate natural resource management efforts.  It also states that it is the policy of the State the department and commission will facilitate consistent and efficient review of projects requiring multiple permits.
  • Section 12 establishes a Science Institute “to assist the department and commission in obtaining independent scientific review, and recommendations to help inform the scientific work of the department and commission.”  In addition, section 12 requires the department to develop a “scientific integrity policy” to guide the work of the department and commission.
  • Section 15 requires the department and commission to develop a strategic plan.  It further provides that the plan will implement proposals from the strategic vision process for the department and commission, any legislation relating to the strategic vision process, and the department’s own proposals for reform.

The legislation raises two questions: will the department and commission actually conform their actions to statements of policy regarding the integrity of scientific information and expedited permitting (or, perhaps, are such statements enforceable) and will the legislature provide the department and commission the funds necessary to implement such policies?  Time will tell.   

Governor Brown Signs Law Barring Use of Dogs to Hunt Bears and Bobcats

Governor Brown signed a bill into law that generally makes it unlawful to permit or allow a dog to pursue a bear or bobcat at any time. The bill, introduced as SB 1221 by State Senator Ted Lieu, is intended to curb the use of dogs to hunt bears or bobcats.  Debate over the bill divided both houses of the California legislature.  David Siders reported that "[t]he legislation pitted wildlife advocates against hunters at the California Capitol – the former raising concerns about the humane treatment of animals, the latter about urban elitism" (Sacramento Bee, Sept. 27, 2012).

The bill to ban use of dogs was introduced in the aftermath of a controversy involving Dan Richards, a member of the California Fish and Game Commission.  The Commission is composed of members appointed by the Governor and confirmed by the Senate.  It manages California's fish and wildlife resources by, among other things, regulating fishing and hunting and making decisions whether to list species as threatened or endangered under the California Endangered Species Act.

In early 2012, it came to light that Commission Richards, who was at the time serving as the Commission's President, killed a mountain lion on a hunting trip in Idaho.  The action was legal in Idaho, though California prohibits sports hunting of mountain lions within its borders.  In response to the revelation, there was a substantial outcry for Commission Richards to resign but also a counter response in defense of his conduct.  Columnist Dan Walters covered the controversy at the time (The Modesto Bee, Feb. 29, 2012).  Richards remains a member of the Commission though he is no longer President.