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

House Republicans recently announced the creation of the Endangered Species Act (ESA) Working Group, which will be led by House Natural Resources Committee Chairman Doc Hastings (R-WA) and Western Caucus Co-Chair Cynthia Lummis (R-WY).  The ESA Working Group will include a total of 13 republican members from a broad geographic range.  It will examine the ESA from many angles through a series of events, forums, and hearings that will invite discussion and input on ways in which the ESA is working well, and where it can be updated or improved to increase its effectiveness for both people and threatened or endangered species and their habitat.  Chairman Hastings noted that the ESA Working Group “is an opportunity to . . . have a fair, honest conversation and review of the current law.”

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The Environmental Protection Agency (EPA) is responsible for registering pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). As part of this process, the EPA must ensure that the use of the pesticide will not cause any unreasonable adverse effects on the environment, including species protected under the Endangered Species Act (ESA) and designated critical habitat for such species. Often, in order to comply with the ESA, the EPA must consult with the United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) to determine whether a pesticide is likely to have an adverse effect on a listed species or its critical habitat. This consultation process has been complicated by the fact that the EPA, FWS, and NMFS have developed their own approaches to evaluating environmental risks.

As a result, the EPA, FWS, NMFS, and the United States Department of Agriculture asked the National Research Council (NRC) to recommend a unified approach to evaluating the environmental risks to listed species posed by pesticides. The NRC is an arm of the National Academies, and is an independent organization whose mission is to inform governmental decisionmaking and public policy in matters involving science, engineering, technology, and health. The NRC recently released a pre-publication copy of its report, entitled Assessing Risks to Endangered and Threatened Species from Pesticides (pdf).

The report concludes that the ecological risk assessment (ERA) process is the preferred approach for evaluating the risks posed by pesticides to listed species. As applied in the ESA context, NRC envisions this process involving three steps: determining (1) whether a pesticide may affect a listed species, (2) whether the affect is likely to be adverse to the listed species or its critical habitat, and (3) whether it is likely to jeopardize the continued existence of a listed species. As part of each step, NRC recommends that the agencies engage in a process of formulating the problem, analyzing the risks of pesticide exposure and the effects thereof, and characterizing these risks.

The report also addresses a number of other issues, including recommendations for identifying appropriate data to be used in assessments, developing more accurate models, and incorporating uncertainty into the assessments.
 

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The National Marine Fisheries Service (NMFS) recently proposed merging its Southwest and Northwest administrative regions, which would result in a savings of $3 million annually in management costs. NMFS is a component of the Department of Commerce, and is responsible for administering the Endangered Species Act as it applies to marine species and their habitats.  Currently, the NMFS Southwest region manages California, and the Northwest region covers Washington, Oregon, and Idaho. The Obama administration proposed the merger to “improve coordination in areas where there is currently joint decision-making” by the two regions.

The merger could make it more difficult for Californians to access management because the regional headquarters would likely be located in Seattle. However, according to Kevin Chu, a deputy Southwest regional administrator, the Long Beach office would remain open. Also, although there would likely be staff cuts as a result of the merger, Chu claims that the cuts would be achieved through attrition and retirement at the senior level. The change is expected to occur within the next 18 months. (Bettina Boxall, Los Angeles Times (April 9, 2013)).

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In a recently issued draft biological opinion (PDF) , the National Marine Fisheries Service (Service) has concluded that EPA's registration of products containing the herbicides oryzalin, pendimethalin, and tricluralin is likely to jeopardize the survival of approximately half of the Pacific salmonid populations listed under the Endangered Species Act (ESA).

The draft biological opinion is the latest milestone in a series of controversial ESA section 7 consultations between the Environmental Protection Agency (EPA) and the Service regarding EPA's registration of 37 pesticides for agricultural and residential use that EPA has determined "may affect" listed salmonid species.  The draft opinion also reinforces the conclusion that Pacific salmon and steelhead are suffering the effects of a host of stressors, including pesticide exposure, reached by the National Research Council Committee in its recent report titled Sustainable Water and Environmental Management in the California Bay-Delta.

As explained in a previous blog entry, the consultations are not only the product of litigation accusing the EPA of failing to comply with the ESA with respect to pesticide registrations, they are generating new litigation, and they are drawing criticism from members of Congress.

Lawmakers in agricultural regions are concerned that the Service is imposing overly protective buffers around water bodies where the pesticides could not be applied, which, in their view may dramatically reduce crop yield with no discernible benefit to listed species.

The draft biological opinion for oryzalin, pendimethalin, and tricluralin is likely to be controversial.  As part of the reasonable and prudent alternative the Service has proposed to avoid jeopardy, the aerial application of any pesticide containing any of the three active ingredients within 300 feet of any surface water that connects with salmonid-bearing waters will be prohibited.  In contrast, this is less than a third the size of the buffer required in the 2008 Biological Opinion for the Registration of Pesticides Containing Chlorpyrifos, Diazinon, and Malathion (PDF), which required 1,000-foot wide buffers for aerial applications and 20-foot buffers of non-crop plantings along surface waters that connect to salmonid-bearing waters.

EPA is soliciting comments regarding the Service's proposed measures included in the reasonable and prudent alternative on its Endangered Species Effects Determinations and Consultations and Biological Opinions web page until April 30, 2012 .  EPA will forward comments to the Service for its consideration.

Under the current schedule, the biological opinions for all 37 active ingredients are to be completed on or before June 30, 2013.

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Today, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Services) published a notice of proposed rulemaking (PDF) in the Federal Register that will, if adopted, change the Services' standards for listing and delisting species as threatened or endangered under the Endangered Species Act (ESA).  See Draft Policy on Interpretation of the Phrase ‘‘Significant Portion of Its Range’’ in the Endangered Species Act’s Definitions of ‘‘Endangered Species’’ and ‘‘Threatened Species.’’ 76 Fed. Reg. 76,987 (Dec. 9, 2011). 

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

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

2.  Limit the "range" to the range currently used by a species during any of its life stages; and

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

The draft policy interpretation has already drawn harsh criticism from the Center for Biological Diversity, which calls the proposal a "recipe for extinction."  By defining significance of a portion of a species' range in terms of a threat to the entire species, not just to the species found in the limited portion of its range, the Services may list fewer species and delist more than they would if "significant" was defined without reference to the entire species.  And by limiting "range" to the current range, a species that has suffered severe declines in historic range, but which is flourishing in its current range, may not qualify for listing and protection under the ESA.

In a Questions and Answers (PDF), the Services explain that while a species will not be listed solely on the basis of lost historical range, "the causes and consequences of loss of historical range on the current and future viability of the species must be considered and are an important component of determining whether a species is currently threatened or endangered."  But this has not mollified critics.

In contrast, landowners may find cause for concern because, under the draft policy, if a species is found to be endangered or threatened only within a significant portion of its range, then under the proposed interpretation the entire species would be listed, and the ESA's corresponding protections would apply throughout the species' entire range.  Thus, a species may be listed in areas where it is currently thriving, resulting in unnecessary and costly over regulation in some areas.

Although styled as a "draft policy," it is essentially a proposed rulemaking because it is the Services' "intent to publish a final policy . . . that will be accorded deference by the federal courts."  Clearly, the Services hope the new policy interpretation will eventually end claims brought in litigation over listing decisions based on past interpretations of "significant portion of its range" in the ESA's definitions of "endangered species" and "threatened species."  However, by defining "significant portion of its range" with reference to the range's importance to the species, not the geographic extent of the range, the draft policy interpretation would appear to be at odds with the plain meaning of the statutory text.

Indeed, in response to litigation over the meaning of the phrase, on March 16, 2007, the Solicitor of the Department of the Interior issued a formal opinion on the meaning of "significant portion of its range" (the so-called M-Opinion).  However, the courts have since rejected aspects of the interpretation in the M-Opinion as applied by the Fish and Wildlife Service, and the DOI withdrew it on May 4, 2011.

The comment period is open for 60 days.  Until the policy is formally adopted, the Services intend to use the draft policy as guidance in their respective listing decisions.

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The House of Representatives Natural Resources Committee is scheduled to hold a hearing on December 6, 2011 regarding the Endangered Species Act (ESA). The hearing is expected to focus on how litigation involving the ESA is costing jobs, impacting the economy, and preventing species recovery.

According to Rep. Doc Hastings (R-Wash.), the committee’s chairman, the hearing will be the first of many that the Natural Resources Committee will hold to examine both the strengths and weaknesses of the ESA. Hastings has said that the law is failing to achieve its fundamental goal of species recovery, and is being used by special interest groups “to file lawsuits and drain resources away from real recovery efforts.”

The goal of the hearings is to update the ESA in a “calm, careful, and bipartisan way.” According to the News Tribune, Chairman Hastings stated that it has been over two decades since the ESA was last reauthorized, and it’s the responsibility of Congress to undertake a thoughtful analysis of the law to see what improvements could be made to ensure that it works for both species and people.  (News Tribune, Nov. 28, 2011, Rob Hotakainen.)

The Natural Resources Committee announced its intent to examine the ESA last summer. A witness list for the December 6, 2011 hearing has not yet been released.
 

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The California Legislature has sent to the Governor legislation authorizing the Department of Fish and Game to permit the incidental take of 36 fully protected species pursuant to a natural community conservation plan approved by the Department. (Senate Bill 618 (Wolk).) The legislation, in effect, gives fully protected species the same level of protection as is provided under the Natural Community Conservation Planning Act (“NCCP Act”) for endangered and threatened species. (Cal. Fish & Game Code § 2835.)  The legislation removes a significant regulatory barrier to the development of regional conservation plans under the NCCP Act.  The NCCP Act, enacted in the 1990s, authorizes the incidental take of species “whose conservation and management” is provided for in a conservation plan approved by the Department of Fish and Game.

Existing state law prohibits the take of any of the 36 identified “fully protected species.”  The fully protected species laws were enacted prior to the California Endangered Species Act and the federal Endangered Species Act and were intended to prohibit hunting, catching, or harvesting of specific species.  The fully protected species laws were interpreted, however, to also prohibit “take” of the species from land development, farming, ranching and other activities – even when the activities had received take permits under the state and federal endangered species laws.

The 36 fully protected species are found in many areas of California and include such species as the salt marsh harvest mouse (Reithrodontomys raviventris), brown pelican (Pelecanus occidentalis), California least tern (Sterna albifrons browni), California clapper rail (Rallus longirostris levipes), peregrine falcon (Falco peregrinus anatum), bighorn sheep (Ovis canadensis), blunt-nosed leopard lizard (Crotaphytus wislizenii silus), and the San Francisco garter snake (Thamnophis sirtalis tetrataenia). Several of the fully protected species are also protected by the federal and state endangered species laws.
 

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On July 27, 2011, House Natural Resources Committee Chairman Doc Hastings announced that the Committee will "move forward" in the fall to examine the Endangered Species Act (ESA) in an effort to reauthorize the law.  Chairman Hastings issued his statement shortly after the House passed an amendment offered by Rep. Norm Dicks to the FY 2012 Interior Appropriations Bill that restored funding to the ESA's listing program.  The original spending bill would have eliminated funding for the processing of petitions, preparation of 12-month findings, and issuance of final rules - unless they were to downlist or delist species.

The ESA has not been updated in 23 years, and Chairman Hastings stressed that "Congress needs to do its job to reauthorize the law."  He stated, "The law is expired, failing to achieve its fundamental goal of species recovery, and has become a tool for expensive debilitating lawsuits."  Moreover, he stressed, that Congress has "a duty to act on the ESA's reauthorization and it needs to be updated in a calm, careful and bipartisan way."

According to Chairman Hastings, "The Interior Appropriations Bill that Chairman Simpson has brought to the House Floor prioritizes funding to ensure that core responsibilities and environmental protections are met."  As applied to the ESA, the bill originally focused on the continued funding of recovery activities while limiting funds for new listings and habitat designations.

Prioritizing funds for recovery activities, while limiting those available for listings, was an attempt to curb the growing number of lawsuits against the Fish and Wildlife Service and the National Marine Fisheries Service.  Chairman Hastings stated, "By striking this provision, the Dicks amendment would reopen the litigation floodgates."

Despite Chairman Hastings' misgivings, passage of the Dicks Amendment is being hailed by some as "a major triumph for the Fish and Wildlife Service and environmentalists."  The Center for Biological Diversity (Center) called the vote a "victory for imperiled species."  Characterizing the original provisions of the appropriations bill related to the ESA as the "extinction rider," the Center's endangered species program director, Noah Greenwald, said that "it would have been a disaster for hundreds of animals and plants across the country that desperately need the help of the Endangered Species Act to survive."

The House is set to vote on the full appropriations bill in the coming days.  If passed, it will move to the Senate.

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Over 38 members of the U.S. House of Representatives have introduced the Government Litigation Savings Act (H.R. 1996) to amend provisions of the Equal Access to Justice Act (“EAJA”) to limit recovery of attorneys’ fees and other expenses in cases brought against federal agencies.

EAJA was passed in 1980 to help individuals, groups or businesses with limited access to financial resources defend themselves against harmful government actions. Under EAJA, plaintiffs who prevail on their claims against the federal government may seek recovery of attorneys’ fees and certain other expenses. See 28 U.S.C. § 2412. The original legislation required annual reports to Congress on the amount and nature of the EAJA payments, but these reporting requirements lapsed in 1995.

Proponents of the legislation contend that, since 1995, special-interest groups, notably environmentalists, have abused the law, and are now the biggest beneficiaries of EAJA payments. According to Rep. Cynthia Lummis (R-WY), one of the bill’s sponsors, ““[t]his common sense legislation would help restore integrity to EAJA and return the program to the original intent of Congress.”

The proposed legislation would impose a $200,000 cap on the amount of fees recoverable in any action, and would increase transparency and reporting requirements. In addition, EAJA currently provides that any “prevailing” party is eligible to recover attorneys’ fees; the proposed legislation would require such prevailing party to have “a direct and personal monetary interest” in the civil action. The current limits on net worth would remain in place, while the cap on legal rates would increase from $125 to $175 per hour.

Groups that meet the EAJA eligibility requirements routinely seek to recover fees under EAJA after successfully challenging governmental actions under the Administrative Procedure Act, 5 U.S.C. 706. While the proposed legislation would limit recovery of such fees, many environmental laws, including the Endangered Species Act, the Clean Water Act and the Clean Air Act, have their own citizen suit and attorneys’ fees provisions that authorize citizens to file certain types of actions against the federal government or regulated parties. For example, under the citizen suit provision of the Endangered Species Act, parties who prevail on claims challenging a federal agency’s performance of its listing or critical habitat duties may recover reasonable attorney and expert witness fees. See 16 U.S.C. § 1540(g). 

The funds used for reimbursement under EAJA come out of each agency’s budget, rather than a central fund. Conversely, funds recovered under the citizen suit provisions of environmental laws are paid from the Judgment Fund. Each year, Congress appropriates money for the Judgment Fund to be used to pay monetary judgments and awards, including attorneys’ fees, against the federal government. See 31 U.S.C. 1304. The Government Litigation Savings Act will only affect funds paid from each agency’s budget under EAJA, and will not impact funds paid from the Judgment Fund.

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On June 16, 2011, the National Ocean and Atmospheric Administration (NOAA) released a draft of its scientific integrity policy (pdf).  The policy comes in response to President Obama’s March 9, 2009 memorandum directing the Office of Science and Technology Policy (OSTP) to consult with relevant executive departments and agencies to recommend a plan to achieve “the highest level of integrity in all aspects of the executive branch’s involvement with scientific and technological processes.”  Director of OSTP John Holdren issued further guidance on scientific integrity in a December 17, 2010 memorandum.

NOAA’s draft policy is comprehensive, covering both employees and contractors involved with scientific activities.  It provides a “Code of Conduct” that establishes formal guidance for NOAA scientists.  It also includes a training component.  The policy encourages scientists to publish their data and findings and to talk to the media about their research, in an effort to be leaders in the scientific community.

The policy has drawn praise from the Union of Concerned Scientists (UCS).  Director Francesca Grifo cautioned, however, that NOAA will need the support of its parent agency, the Department of Commerce, to implement the policy.  Though expressing praise for the policy, Grifo had several recommendations for its improvement, including the use of visitor logs to inform the public about who is meeting with agency officials and publicly reporting on the progress of efforts to address alleged scientific misconduct.

In addition to the draft policy, NOAA also released a handbook (pdf) that outlines procedures to respond to allegations of misconduct. Both draft documents are available at www.noaa.gov/scientificintegrity. The policy is open for public comment until August 15, 2011.

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On June 13, 2011, President Obama and Vice President Biden announced the Administration’s Campaign to Cut Waste. As part of that campaign, the Administration is seeking to eliminate a multitude of websites the government now maintains.  Both the President and Vice President singled out a website dedicated to the desert tortoise (Gopherus agassizii) – a species native to the southwest and listed (pdf) as threatened under the Endangered Species Act -- as one example of the type of government waste they intend to eliminate.  The media has reported frustration in response to the Administrations focus; one article on the topic noted that “the talk has irritated some scientists and environmentalists” (The Press Enterprise, June 15, by David Danelski and Ben Goad).

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The House Committee on Natural Resources is set to hold hearings on a bill that will allow for the lethal removal of California sea lions (Zalophus californianus) caught eating endangered salmon and steelhead just below the Bonneville Dam on the Columbia River. The Endangered Salmon Predation Prevention Act (H.R. 946), introduced in March 2011, would allow the states of Washington and Oregon, and four local tribal organizations, to get year-long leases to lethally remove a limited number of sea lions that prey on salmon and steelhead listed as endangered under the Endangered Species Act. According to Representative Doc Hastings (R-Wash.), the Chairman of the Committee on Natural Resources, “[a]s Northwest residents spend hundreds of millions of dollars each year to protect salmon, California sea lions camp out at Bonneville Dam and gorge themselves on endangered fish. . . . With all other methods exhausted, lethal removal of the most aggressive sea lions is often the only option left to deter predation, help protect endangered salmon and recoup more of our region’s substantial investment in salmon recovery.”

The legislation follows a May 2011 agreement reached between wildlife advocates, including the Humane Society of the United States and the Wild Fish Conservancy, the National Marine Fisheries Service (NMFS), and the states Oregon and Washington to temporarily suspend the lethal removal of the sea lions until September 2011. The agreement was due to litigation pending in response to the recent NMFS authorization to resume the lethal removal of the sea lions.

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The White House recently unveiled plans to improve the federal regulatory system developed in response to an Executive Order issued by President Obama, which include a proposal by the Fish and Wildlife Service and National Marine Fisheries Service to improve administration of the Endangered Species Act (ESA).  The proposal is reproduced in Departmental workplans submitted by both Interior (pdf) and Commerce (pdf).  It includes the following actions:

• Minimize requirements for written descriptions of critical habitat boundaries in favor of map- and internet-based descriptions. Map- and internet-based descriptions are clearer and more accessible methods of showing critical habitat boundaries. Additionally, reducing written boundary description requirements will save taxpayer money.
• Clarify, expedite, and improve procedures for the development and approval of conservation agreements with landowners, including habitat conservation plans, safe harbor agreements, and candidate conservation agreements.
• Expand opportunities for the states to engage more often and more effectively in the implementation of the ESA’s various provisions, especially those pertaining to the listing of species.
• Review and revise the process for designating critical habitat to design a more efficient, defensible, and consistent process.
• Clarify the definition of the phrase “destruction or adverse modification” of critical habitat, which is used to determine what actions can and cannot be conducted in critical habitat.
• Clarify the scope and content of the incidental take statement, particularly with regard to programmatic actions or other actions where direct measurement is difficult. An incidental take statement is a component of a biological opinion that specifies the impact of an incidental taking of an endangered or threatened species and provides reasonable and prudent measures that are necessary to minimize those impacts. Greater flexibility in the quantification of anticipated incidental taking could reduce the burden of developing and implementing biological opinions without any loss of conservation benefits.

In addition, both the Departments of the Interior and Commerce propose to craft a multi-faceted strategy to address the challenge of the conservation of endangered species and the administration of the Federal Insecticide, Fungicide, and Rodenticide Act.  Early media coverage of the Administration's effort include this article.  (The Hill, May 26, 2011, by Andrew Restuccia.)

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The U.S. House of Representatives passed H.R. 1 (pdf), a spending bill, on February 19, 2011, that includes a rider to foreclose use of funds appropriated by Congress to implement Reasonable and Prudent Alternatives (RPAs) developed by the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) to accompany biological opinions and jeopardy determinations made by those agencies under the federal Endangered Species Act regarding the ongoing operation of the Central Valley Project and State Water Project in California.  The biological opinions, jeopardy determinations, and RPAs presently are being challenged in multiple lawsuits brought in federal court.  Last year, the United States District Court for the Eastern District of California held (pdf) that the FWS biological opinion (pdf) is unlawful, and the Court remanded the document to that agency.  Pending in the same Court are cross motions for summary judgment respecting the NMFS biological opinion (pdf).

The rider does not purport to amend the federal Endangered Species Act, and it also does not affect the California Endangered Species Act.  As a result, the water supply and species protection implications that would stem from enactment of the rider into law are unclear.

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On February 10, 2011, EPA Region 9 issued an Advanced Notice of Proposed Rulemaking for Water Quality Challenges in the San Francisco Bay/Sacramento-San Joaquin Delta Estuary ("Advanced Notice") (pdf).  EPA is not proposing any specific Clean Water Act ("CWA") rulemaking at this time.  Instead, EPA proposes to assess "the effectiveness of current programs designed to protect water quality and aquatic species habitat in the San Francisco Bay / Sacramento-San Joaquin Delta in California . . . ."  Fact Sheet (pdf).  According to EPA Region 9 Administrator Jared Blumenfeld, EPA is soliciting public comment to assist EPA in "trying to identify gaps in state and federal water quality programs" that may affect, among other things, aquatic species such as salmon and delta smelt that have been listed as threatened or endangered under the federal Endangered Species Act and/or the California Endangered Species Act.

According to Blumenfeld: "In particular, we are looking at the effects of pesticides, ammonia and selenium on the estuarine habitat.  Pesticides – whether applied indoors or outdoors to control rodents, insects and weeds – can reach the Delta and harm fish and humans alike.  Ammonia from sewage treatment plants and fertilizers adds excessive nitrogen to the water, inhibiting the growth of plant plankton at the base of the food web.  Selenium is a naturally occurring element, but irrigation runoff and oil refinery discharges can increase its concentrations to toxic levels."

According to EPA, further study is needed because "[p]resent water quality in the Bay Delta Estuary reflects the cumulative and interactive effects of multiple physical, chemical and biological stressors, including sewage flows, storm water discharges, agricultural return flows, urban and agricultural pesticide application, water diversions, habitat degradation and non-native species."

EPA intends to use the comments to make recommendations for future actions that compliment other actions in the Delta, such as the Bay Delta Conservation Plan, the Delta Actions Resolution jointly adopted by the State Water Resources Control Board and the Central Valley and San Francisco Regional Water Quality Conrol Boards, and the recent, controversial wastewater discharge permit (pdf) issued by the Central Valley Regional Water Quality Control Board which imposes more stringent limits on the discharge of ammonia from the Sacramento Regional Wastewater Treatment Plant into the Sacramento River.

Comments can be submitted at the Federal Rulemaking Portal (www.regulations.gov) identified by docket EPA-R09-OW-210-0976 or by sending hardcopy to Erin Foresman, U.S. Environmental Protection Agency, 75 Hawthorne Street, San Francisco, CA 94105.

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In a letter to the President's Council on Environmental Quality (CEQ), 18 members of Congress urged the Obama Administration to "ensure that NMFS, EPA, the Department of the Interior, USDA, and DOJ work together" to strengthen the modeling and to use the best scientific and commercially available information to re-evaluate existing biological opinions (BiOps) and to inform forthcoming BiOps for EPA pesticide registrations.

The members of Congress claim that the existing BiOps, which prohibit the application of certain pesticides to cropland within certain buffer zones adjacent to streams, rivers, wetlands, and floodplain habitat to protect threatened and endangered salmon and steelhead, "will force family farmers out of business and devastate rural communities and trade throughout the districts we represent, while crippling our food production capacity for the foreseeable future."  According to the authors, the BiOps issued to date expand existing buffer zones to such a great extent that "it would affect millions of acres in the Northwest and California, including a staggering 61 percent of farmland in Washington state and 55 percent in Oregon."

The 18 members of Congress argue that the consultation process between the National Marine Fisheries Service (NMFS) and EPA for the first of the pesticide BiOps (issued in November 2008) was flawed because it lacked transparency, consultation with the agricultural community, and the opportunity for public comment.  More fundamentally, they argue that NMFS's consultation for all three of the existing BiOps ignored the best available scientific and commercial data on the prevalence of the pesticides in salmon spawning waterways.

The letter's authors cite a September 2008 letter from EPA's Director of Pesticide Programs to NMFS, which criticized the July 31, 2008 draft BiOp for failing to disclose NMFS's rationale for its determination that use of chlorpyrifos, diazinon, and malathion will jeopardize the continued existence of dozens of listed salmonids in California, Oregon, Washington, and Idaho.  In the September 2008 letter, EPA also complained that it could not meaningfully discuss the proposed Reasonable and Prudent Alternative because the BiOp "fails to identify a level of exposure to these pesticides that would not result, in NMFS['s] opinion, in jeopardy to the species."

As explained in more detail below, the letter's authors are especially concerned that the administration orchestrate future interagency consultations as well as consultations with the agriculture industry and other stakeholders because EPA faces a host of other court-mandated deadlines to determine whether other pesticide registrations may affect listed species, and if so, to consult.

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Senator Lois Wolk has introduced two separate bills into the California Senate to amend the California Endangered Species Act (CESA) and Natural Community Conservation Planning Act (NCCPA).

SB 1303, as amended, would amend section 2087 of the California Fish and Game Code, which exempts otherwise lawful “routine and ongoing agricultural activities” from the take prohibitions established by CESA. Routine and ongoing agricultural activities are defined by regulation to include, among other things, “any practices performed by a farmer on a farm as incident to or in conjunction with [ ] farming operations.”  Cal. Code Regs. tit. 14 § 786.1.

Presently, section 2087 is set to expire on January 1, 2011. SB 1303, as amended, would extend the expiration date to January 1, 2012. The bill has broad support from the agricultural community. Absent this provision, supporters argue that farmers may be subject to penalties under CESA if their lands provide habitat for listed species, which creates an incentive structure that could undermine the purposes of CESA.

The bill was passed out of the Committee on Natural Resources and Water and is set to be heard by the Committee on Appropriations on May 3, 2010.

SB 1334, as amended, would amend section 2820 of the California Fish and Game Code, which is a provision of the NCCPA. The NCCPA authorizes the California Department of Fish and Game to enter into a planning agreement with any person or public agency to prepare a natural community conservation plan (NCCP) in cooperation with a local agency that has land use permit authority over the activities proposed to be addressed in the plan, to provide comprehensive management and conservation of multiple wildlife species. Cal. Fish & Game Code § 2810(a). An approved NCCP may permit take of threatened or endangered species that is otherwise prohibited by CESA, provided such species are covered by the plan. Section 2820 sets forth the findings that the Department of Fish and Game must make in order to approve a NCCP. Id. § 2820.

SB 1334 would amend section 2820(a)(1), which requires the Department to make a finding that the NCCP “has been developed consistent with the process identified in the planning agreement entered into pursuant to Section 2810”, by adding the following clause “including cooperation with all local agencies that have land use permit authority over the activities proposed to be addressed in the plan.” This proposed amendment is a response to the Bay Delta Conservation Planning process, and its supporters contend that the steering committee for the Bay Delta Conservation Plan has failed to work cooperatively with local land use authorities to date.

The bill was passed out of the Committee on Natural Resources and Water and is set to be heard by the Committee on Appropriations on May 3, 2010.
 

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Assemblyman Jared Huffman has introduced Assembly Bill 2420 (PDF) to amend the provisions of the California Endangered Species Act (“CESA”) that allow persons who obtain incidental take authorization under the federal Endangered Species Act (“ESA”), to also obtain take authorization from the Director of the California Department of Fish and Game for species listed under both laws, provided the Director determines that such federal take authorization is consistent with CESA.

AB 2420 would revise section 2080.1 of the California Fish and Game Code. As presently written, that section requires persons that seek consistency determinations to provide the Director with either an incidental take statement issued pursuant to section 7 of the ESA or an incidental take permit issued under section 10 of the ESA. AB 2420 would require persons that seek consistency determinations to provide the Director with both a biological opinion and incidental take statement or a conservation plan and incidental take permit as well as notice of the required measures in those documents that fulfill the incidental take permitting requirements set forth in section 2081(b) of CESA. Furthermore, AB 2420 would require the Director to determine whether notice provided by the person seeking a consistency determination is complete within seven days of receipt. In the event notice is incomplete, the Director would be required to provide an immediate, written response. In the event notice is complete, the Director would have 30 days to make a consistency determination.

On March 23, 2010, the Committee on Water, Parks, and Wildlife is scheduled to hold a hearing on AB 2420.
 

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On March 10, 2010, the Center for Biological Diversity submitted a letter (PDF) on behalf of 50 conservation groups encouraging the Secretaries of the Department of the Interior and the Department of Commerce to adopt a radical new definition of “adverse modification of critical habitat.”  The proposed definition differs in two ways from the current regulatory definition; one uncontroversial and benign, while the other is likely to be controversial and far-reaching.

Currently, “adverse modification” is defined by regulation as “a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species.”  The groups would have “adverse modification of critical habitat” be defined as “a direct or indirect alteration that appreciably diminishes the value of any portion of any area of designated critical habitat for either the survival or recovery of a listed species,” with “appreciably diminishes” defined “as any action that would destroy or degrade any primary constituent element such that the habitat would be, measurably or perceptibly, of less value to the species.”  As explained below, the change to “either . . . or” would be benign; but the proposed addition of “any portion of any area” could dramatically alter the way the Services administer Section 7 of the ESA.

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