U.S. Fish and Wildlife Service Proposes Credit Program for At-Risk Species

The U.S. Fish and Wildlife Service (Service) recently announced a proposed policy establishing credits for voluntary prelisting conservation actions for imperiled species. The policy is intended to establish an additional measure for encouraging and awarding voluntary actions to protect species that may be listed as endangered or threatened under the Endangered Species Act (ESA).

The new policy would apply in two possible situations. For non-federal actions that may harm listed species and require a take permit under section 10 of the ESA, the policy would credit actions taken prior to listing and apply those credits towards mitigation to offset impacts that would occur after the species is listed. For federal agencies, credits from prelisting conservation actions would be used to offset adverse effects of the agency’s proposed action.

To be eligible for credits, conservation actions must be part of a state-administered program for conservation of the species. The policy is intended to engage states in designing and implementing programs to encourage voluntary prelisting conservation actions. All actions to be credited must occur before the species is listed under the ESA, and they cannot be required pursuant to any federal, state, or local regulation.

According to the Service, the policy enables any harm to a listed species to be offset by benefits provided prior to the listing of the species. Additionally, prelisting conservation actions could be combined with additional mitigation to offset any harm to the species. The Service has yet to define the metrics for measuring either the harm or benefit to the species.

States may choose to work with the Service to administer the prelisting conservation programs. Under the policy, the Service will assist states as needed in developing conservation plans, and in overseeing implementation and operation of the voluntary actions.
 

House Natural Resources Committee Sends Four ESA Reform Bills to the House Floor

After a heated markup hearing on Wednesday, the House Natural Resources Committee voted to send four bills that would amend the Endangered Species Act (ESA) to the floor of the U.S. House of Representatives. All four bills were sponsored by Republican representatives, and the Committee voted almost exclusively upon partisan lines, with Republicans voting for and Democrats voting against sending the bills to the full House. One Democrat, Representative Jim Costa (D-Calif.), voted in support of H.R. 4315, voicing his opinion that “[i]t’s past time for targeted reforms to the Endangered Species Act.” To the contrary, Representative Rush Holt (D-N.J.) argued that there is no need to reform the ESA because the ESA “has been one of the most, if not the most, successful environmental bills over the last few decades.” Environmental groups immediately criticized the bills, arguing they would put endangered species at greater risk of becoming extinct and would make it harder to enforce the ESA through citizens’ suits.

As we previously reported, the bills would:

– Require online publication of the “best scientific and commercial data available” that is the basis for ESA decision-making (H.R. 4315, “21st Century Endangered Species Transparency Act”);

– Require federal agencies to disclose certain expenditures, including the amount of funds expended in ESA-related lawsuits, the number of employees dedicated to ESA litigation, and the amount of attorneys’ fees paid to successful ESA litigants (H.R. 4316, “Endangered Species Recovery Transparency Act”);

– Require use of information provided by state, tribal, and county governments in decision-making under the ESA (H.R. 4317, “State, Tribal, and Local Species Transparency and Recovery Act);

– Impose a cap of $125 per hour on the government’s reimbursement of attorneys’ fees under the ESA (H.R. 4318, “Endangered Species Litigation Reasonableness Act”).

The bills will now be sent to the House floor, though there is no timetable scheduled for when a vote will occur.

House Natural Resources Committee to Hold Full Committee Markup on ESA Reform Bills

The House Natural Resources Committee has scheduled a full Committee markup of four bills intended to bring additional transparency to the Endangered Species Act (ESA). The markup, which involves committee debates, amendments, and rewrites of the proposed legislation, is scheduled for this Wednesday, April 30, 2014. The Committee will be reviewing four ESA reform bills introduced last month. As we reported here, the bills would amend the ESA as follows:

H.R. 4315 (“21st Century Endangered Species Transparency Act”) – Introduced by Rep. Doc Hastings (R-Wash); the bill would require online publication of the “best scientific and commercial data available” that is the basis for ESA decision-making.

H.R. 4316 (“Endangered Species Recovery Transparency Act”) – Introduced by Rep. Cynthia Lummis (R-Wyo.); the bill would require federal agencies to disclose certain expenditures, including the amount of funds expended in ESA-related lawsuits, the number of employees dedicated to ESA litigation, and the amount of attorneys’ fees paid to successful ESA litigants.

H.R. 4317 (“State, Tribal, and Local Species Transparency and Recovery Act”) – Introduced by Rep. Randy Neugebauer (R-Tex.); the bill would require use of information provided by state, tribal, and county governments in decision-making under the ESA.

H.R. 4318 (“Endangered Species Litigation Reasonableness Act”) – Introduced by Rep. Bill Huizenga (R-Mich.); the bill would impose a cap of $125 per hour on the governments’ reimbursement of attorneys’ fees under the ESA.
 

Natural Resources Committee Discusses Endangered Species Act Reform

Earlier this week, the House Natural Resources Committee held a hearing to discuss Endangered Species Act (ESA) reform. The hearing focused on four bills that seek to require data and spending transparency under the ESA.

As previously reported, an ESA Congressional working group released a final report stating that the ESA “is not working.” The proposed bills are a result of that final report. Despite a general agreement that the 40-year old ESA should be updated, the hearing displayed the divide between Republicans and Democrats over how to do so.

One of the bills discussed at the hearing, H.R. 4315, would require the Secretary of the Interior to publish the “best scientific and commercial data available” used to support a listing decision. Currently, not all data is released to the public, such as proprietary information. According to a report by Emily Yehle from E&E news, critics of the bill claim that the scope of its reach is too broad. For example, sometimes information is classified data from the U.S. Department of Defense. H.R. 4317, seeks to define the “best scientific and commercial data available” to include “all data submitted by a State, tribal, or county government.” Critics claim this bill would presume that data from a State, tribal, or county government is the “best” data available, thus negating the purpose of requiring use of the “best” available data – regardless of its source.

Additionally, H.R. 4316, would require the U.S. Fish and Wildlife Service to disclose the amount of funds expended in ESA-related lawsuits, the number of employees dedicated to litigation efforts, and any attorneys’ fees paid to successful litigants. H.R. 4318, would limit reimbursement of attorneys’ fees to $125 per hour.

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.

Endangered Species Act Turns 40

December 28, 2013 marked the 40th birthday of the Endangered Species Act (ESA), which was signed into law by President Richard Nixon on December 28, 1973. According to Sally Jewell, the Secretary of the Interior: “This landmark law has helped to stop the slide toward extinction of hundreds of species. Along the way, we have strengthened partnerships among states, tribes, local communities, private landowners and other stakeholders to find conservation solutions that work for both listed species and economic development.” Supporters of the Act credit it for bringing several species, including the bald eagle (Haliaeetus leucocephalus), the black-footed ferret (Mustela nigripes), and the peregrine falcon (Falco peregrinus), back from the brink of extinction. Some critics believe that animals listed under the ESA are slow to recover and that the law could be improved to better protect imperiled species, while others believe that it imposes unacceptably high costs on society that are not justified by the benefits it affords listed species.

House Natural Resources Committee Holds Fifth Oversight Hearing on Endangered Species Act

Last week, the House Natural Resources Committee held its fifth oversight hearing on the Endangered Species Act (ESA). Entitled “ESA Decisions by Closed-Door Settlement: Short-Changing Science, Transparency, Private Property, and State & Local Economies,” the hearing included over a dozen Republican witnesses, with only three Democrats.

At the hearing, critics of the ESA urged reform to ensure that the statute’s focus is on recovering species and science, rather than litigation. Referencing the landmark 2011 settlement between Center for Biological Diversity (CBD) and the U.S. Fish and Wildlife Service (Service), which requires the Service to review 757 species by 2018, Chairman Doc Hastings (R-Wash.) stated that “the ‘listing-by-litigation’ approach is not working for people and species.” He continued: “Undoubtedly, some believe cramming hundreds of obscure species onto the ESA list under deadlines and blocking off huge swaths of land because of the settlements are ‘successes,’ but many areas of the country tell a different account of how these policies are impacting their communities, their economies, and ultimately, the species.” In response, CBD’s endangered species policy director Brett Hartl said the settlement “simply requires the [Service] to do its job in a timely manner and make decisions about protecting species.”

For additional information regarding prior ESA oversight hearings, please see our December 10, 2013 and June 4, 2013 posts.
 

House Natural Resources Committee to Hold Hearing on Department of the Interior's 2011 Endangered Species Act Settlements

On Thursday, December 12, 2013, the House Natural Resources Committee (Committee) will hold a full committee oversight hearing (pdf) titled “ESA Decisions by Closed-Door Settlement: Short-Changing Science, Transparency, Private Property, and State & Local Economies.” This hearing is part of a series of hearings announced by the Committee to review the Endangered Species Act (ESA) and conduct an assessment of the law’s strengths and weaknesses.

As we previously reported, in 2011, the U.S. Fish and Wildlife Service (Service) developed a six-year work plan that would allow it to systematically review and address more than 250 candidate species as part of a settlement agreement with WildEarth Guardians and the Center for Biological Diversity. Under the settlement agreement, the Service agreed to prioritize listing decisions for several candidate species, and the environmental groups agreed to refrain from filing actions to compel findings on new listing petitions that they submit.

Republicans have largely condemned the settlement, arguing that the “sue-and-settle” approach has led to excessive litigation that requires federal agencies to spend great time and financial resources addressing lawsuits rather than species recovery. The Service, on the other hand, regards the settlement as a success, noting that setting deadlines for final decisions on candidate species has spurred cooperation from states and private landowners in creating conservation plans that address concerns about the species without necessarily requiring the need for listings.

The Committee’s hearing will be held at 10:00 a.m. EST, in room 1324 Longworth House Office Building, Washington, DC.
 

Bureau of Land Management Continues to Develop a National Greater Sage-Grouse Planning Strategy

 The Bureau of Land Management (BLM) today issued (pdf) a draft Oregon Greater Sage-Grouse Land Use Plan Amendment and Environmental Impact Statement (LUP Amendment/EIS) for the Oregon Sub-Region.  Once finalized, the LUP Amendment/EIS will cover over 10 million acres of sage-grouse habitat in the species’ Oregon range.

The draft LUP Amendment/EIS is one of fifteen separate planning efforts being undertaken as part of the “National Greater Sage-Grouse Planning Strategy.”  As we previously reported, BLM has already issued the draft LUP Amendment/EIS for the Nevada and Northeast California range of the greater sage-grouse.

The draft LUP Amendment/EIS addresses key planning issues such as special status species management, energy and mineral development, lands and realty (including transmission), vegetation management, and livestock grazing.  It evaluates six alternatives, including the “preferred alternative,” or Alternative D, which includes conservation measures BLM developed with cooperating agencies.  BLM is accepting comments on the draft LUP Amendment/EIS through February 20, 2014. 

U.S. Bureau of Land Management Issues Draft Proposal to Protect Nevada and Northeast California Greater Sage-Grouse

On November 1, 2013, the U.S. Bureau of Land Management (BLM), as lead agency, and the U.S. Forest Service (Service), as cooperating agency, issued the Nevada and Northeast California Greater Sage-Grouse Draft Land Use Plan Amendment and Environmental Impact Statement (EIS).  The EIS evaluates six alternatives for land use plan management amendments (LUPA) focusing on conservation measures covering approximately 17.7 million acres of land administered by BLM and the Service in Nevada and northeast California spanning 16 Nevada counties, four California counties, and one county in Idaho.  BLM prepared the EIS as part of its ongoing effort to develop a "National Greater Sage-Grouse Planning Strategy" that would stretch across 10 western states and cover the estimated 47 million acres of sage-grouse habitat under BLM control.

The EIS’s “preferred alternative” – Alternative D – would restrict some uses of managed lands, including closing such lands to motorized vehicle use in the most sensitive areas, and limiting motorized vehicles to existing routes in others. It would also close most of the federal lands to mining and solar and wind energy development. More stringent alternatives evaluated in the EIS would also foreclose cattle grazing and rights-of-way for energy transmission lines or pipelines.

The draft EIS was prepared in response to the U.S. Fish and Wildlife Service’s (FWS) determination that protection under the Endangered Species Act (ESA) for the greater sage-grouse was “warranted, but precluded.” FWS specifically identified inadequate regulatory mechanisms as a significant threat to the species. The draft EIS notes that changes in the management of greater sage-grouse habitat are necessary to avoid continued decline of the species across its range. The purpose of the LUPA is to identify and incorporate appropriate conservation measures in relevant Land Use Plans to conserve, enhance, and restore greater sage-grouse habitat by reducing, eliminating, or minimizing threats to their habitat, including threats such as wildfire, invasive species, conifer invasion, infrastructure, climate change, grazing, hard rock mining, oil and gas development, and human uses.

In 2010, the FWS issued its 12-month finding for petitions to list the greater sage-grouse as threatened or endangered under the ESA. The FWS determined that, while listing of the species was warranted, listing was precluded by higher-priority listing proposals.

BLM is accepting comments on the EIS through January 29, 2014. Representatives from BLM and the Service have stressed that elements from various alternatives may be combined in the final recommendations, which is expected to be issued next year. Following completion of the final EIS, the FWS will review the proposed actions to determine whether they are sufficient to avoid listing the greater sage-grouse as threatened or endangered under the ESA.
 

Federal Wildlife Agencies Issue Proposed Rule that Would Codify Practice of Using Surrogates in Incidental Take Statements

On September 4, 2013, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, the Services) issued a proposal rule to amend the regulations governing consultation under section 7 of the Endangered Species Act (ESA) that would codify the practice of using surrogates to express the amount of extent of anticipated take in an incidental take statement issued concomitant with a biological opinion. The Services indicate that these changes are proposed “to improve the flexibility and clarify the development of incidental take statements.”

Section 7(b)(4) of the ESA provides that, where an agency action and anticipated incidental take will not violate section 7(a)(2), the apposite Service shall issue an incidental take statement that, among other things, “specifies the impact of such incidental taking on the species.” The Services acknowledge in the proposed rule the congressional preference for numerical limits with respect to individuals of the listed species. At the same time, the Services reference court decisions recognizing that in some circumstance use of surrogates, or indicators, may be acceptable as an alternative to numerical estimates of individuals. The proposed rule states that “evaluating impacts to a surrogate such as habitat, ecological conditions, or similar affected species may be the most reasonable and meaningful measure of assessing take of listed species.”

The proposed rule goes on to indicate that surrogates may be used, provided the incidental take statement (or accompanying biological opinion), “(1) Describes the causal link between the surrogate and take of the listed species; (2) describes why it is not practical to express the amount or extent of anticipated take or to monitor take-related impacts in terms of individuals of the listed species; and (3) sets a clear standard for determining when the extent of taking has been exceeded.” Interestingly, the proposed rule does not make reference to the scholarly literature on surrogates, which spans more than a quarter century. A recent, in-depth, treatment of the subject is provided by Tim Caro in Conservation by Proxy (Island Press, 2010).

The Services are accepting comments on the proposed rule until November 4, 2013.

Federal Wildlife Agencies Issue Final Rule Adopting "Incremental" Approach to Economic Impact Analyses Conducted for Critical Habitat Designations under the Endangered Species Act

On August 28, 2013, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) issued a final rule (pdf) adopting an “incremental” approach to preparing an economic impact analysis required for a critical habitat designation under the Endangered Species Act (ESA). As a practical matter, this assessment will primarily consist of analyzing the cost of the time other federal agencies must take to consult with the wildlife agencies before authorizing activities within critical habitat. The analysis will largely ignore the underlying costs of listing a species under the ESA. In other words, for areas considered to be occupied by a listed species, the cumulative economic impacts of critical habitat designations, such as reduced water supplies and increased development costs, will be considered “baseline” effects.

The rule rejects the cumulative approach adopted by the U.S. Court of Appeals for the Tenth Circuit in New Mexico Cattlegrowers Association v. FWS, 248 F.3d 1277, 1285 (10th Cir. 2001), which required the agencies to analyze “all of the impacts of a critical habitat designation, regardless of whether those impacts are attributable coextensively to other causes.” Rather, the rule codifies the incremental or “baseline” approach adopted by the U.S. Court of Appeals for the Ninth Circuit in Arizona Cattle Growers Association v. Salazar, 606 F.3d 1160, 1173 (9th Cir. 2010). Specifically, the rule states: “To determine the incremental impacts of designating critical habitat, the Services [shall] compare the protections provided by the critical habitat designation (the world with the particular designation) to the combined effects of all conservation-related protections for the species and its habitat in the absence of the designation of critical habitat (the world without designation, i.e., the baseline condition including listing).”

The rule also allows the wildlife agencies to describe economic impacts qualitatively, which is intended to “provide clarity, promote predictability and reduce uncertainty, and to codify established interpretation, practices, and prevailing case law.” Opponents of the rule, however, argue that allowing qualitative assessments will result in less thorough, less robust analyses of economic impacts.

The rule also requires the agencies to release a draft economic analysis at the same time they release a proposed critical habitat rule. Under current regulations, promulgated in 1984, FWS would prepare an economic analysis only after issuing a proposed rule designating critical habitat. NMFS already issues an economic analysis with a proposed designation; the new rule codifies this practice. According to the agencies, both transparency and public input will be improved if the public has access to both the scientific analysis and the draft economic analysis at the same time.

The rule is in response to a February 2012 presidential memorandum directing FWS and NMFS to revise applicable regulations to “provide that the economic analysis be completed and made available for public comment at the time of publication of a proposed rule to designate critical habitat.” The agencies issued a proposed rule on August 24, 2012, which was open for public comment for a total of 150 days. The rule will become effective October 30, 2013.

Nossaman has extensive experience advising clients on issues involving critical habitat designations, including with respect to the economic impact analyses at issue in the new rule. See, e.g., Building Industry Legal Defense Foundation v. Norton, 231 F. Supp. 2d 100 (D.D.C. 2002) (invalidating and vacating designation of critical habitat for the arroyo southwestern toad and Riverside fairy shrimp); Building Industry Association of Southern California v. Norton, Civ. No. 01-07028 (C.D. Cal. 2001) (granting FWS motion to remand critical habitat designation for coastal California gnatcatcher and San Diego fairy shrimp to comply with New Mexico Cattlegrowers).
 

Endangered Species Act Working Group to Hold Field Hearings in Wyoming and Montana

On August 22, 2013, U.S. Representative Cynthia Lummis (R-Wyo) and the Chairman of the House Natural Resources Committee, Doc Hastings (R-Wash), announced that the Congressional Endangered Species Act (ESA) Working Group will be holding field hearings in Casper, Wyoming and Billings, Montana to find ways to improve the ESA for both species and people. The hearings, entitled “State and Local Efforts to Protect Species, Jobs, Property and Multiple Use Amidst a New War on the West,” will focus on efforts to preserve wildlife while maintaining jobs in agriculture, energy, and recreation.

As we previously reported, House Republicans created the ESA Working Group to examine the ESA through a series of events, forums, and hearings to invite discussion and input on ways in which the ESA is working well, and where it can be updated or improved. The first of these efforts kicked off in June 2013.

The first of the two-part field hearings will take place in Casper, Wyoming on Wednesday, September 4, 2013 at 9:00 a.m. MDT at the Wyoming Oil and Gas Conservation Commission. The second will be held the same day at 1:30 p.m. MDT at Cisel Hall (MSU-Billings).

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.
 

House Republicans Form Endangered Species Act Working Group

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.”

National Research Council Recommends a Unified Approach to Assessing Risks to Endangered Species from Pesticides

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.
 

National Marine Fisheries Service Proposes a Merger of its West Coast Regions

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)).

Three More Pesticides Found Likely to Jeopardize West Coast Salmon and Steelhead

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.

Services Issue Notice of Controversial New Interpretation of Threatened and Endangered Species

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.

Congress To Re-Examine Endangered Species Act

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.
 

California Legislature Authorizes Take of Fully Protected Species

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.
 

House Natural Resources Committee to Examine Endangered Species Act Reauthorization This Fall

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.

Bill Introduced to Limit Recovery of Attorneys' Fees under the Equal Access to Justice Act

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. 1304The 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.

NOAA Draft Policy on Scientific Integrity Open for Public Comment

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.

Desert Tortoise Website in the Crosshairs of Obama Administration

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).

 

Legislation Introduced to Authorize Lethal Removal of Sea Lions

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.

Departments of the Interior and Commerce Outline Proposed Changes to Endangered Species Act Programs as Part of Government-Wide Regulatory Reform Effort

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.)

House Passes Bill to Cutoff Funding for Water Supply Restrictions Imposed by Federal Wildlife Agencies

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.

EPA to Study Impacts of Contaminants on the San Francisco Bay/Sacramento-San Joaquin Delta Estuary

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.

18 Members of Congress Claim Pesticide BiOps Rely on Faulty Analysis and Ignore Best Available Information

Sacramento River and Adjacent FarmlandIn 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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California Legislature Considering Bills to Amend the California Endangered Species Act and Natural Community Conservation Planning Act

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.
 

Bill Introduced to Amend California Endangered Species Act (AB 2420)

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.
 

Conservation Groups Urge Administration to Adopt New Definition of "Adverse Modification of Critical Habitat"

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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