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

The U.S. Fish & Wildlife Service (Service) has determined that protection under the Endangered Species Act (ESA) for the San Francisco Bay-Delta (Bay-Delta) population of longfin smelt is “warranted but precluded.” The Service also determined that listing the longfin smelt rangewide is not warranted at this time.

The Service’s decision is in response to a lawsuit brought by environmental groups challenging the Service’s 2009 determination (pdf) that the Bay-Delta population of longfin smelt is not distinct from other populations in the species’ geographic range. In a settlement agreement entered into in February 2011, the Service agreed to conduct a status review of the species, evaluating whether the entire range of longfin smelt should be listed as endangered or threatened, and reconsidering whether the Bay-Delta population of longfin smelt constitutes a distinct population segment (DPS) under the ESA.

In its decision published today in the Federal Register, the Service found (pdf) that the Bay-Delta longfin smelt meets the requirements of the Service’s DPS policy, and therefore can be listed under the ESA. The Service also determined, based on the best available scientific and commercial information, that listing the Bay-Delta DPS of longfin smelt is warranted but precluded by higher priority actions. The Service will add the Bay-Delta longfin smelt to its candidate species list, and will develop a proposed rule to list the smelt as its priorities allow. The Service will make a determination regarding critical habitat during the development of the proposed listing rule.
 

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U.S. District Judge Gladys Kessler of the District of Columbia invalidated regulations designed to streamline the consultation process required by the Endangered Species Act (ESA) in preparing fire management plans. The judge found (pdf) that there was no evidence in the record that the ESA consultation process “actually resulted in any delay to any National Fire Plan project.”

The regulations were originally issued in 2003 (pdf) by six federal agencies, including the Bureau of Land Management, the U.S. Fish and Wildlife Service (FWS), the National Park Service, the Bureau of Indian Affairs, the Forest Service and the National Marine Fisheries Service (NMFS). The regulations provided an alternative process for completing ESA consultation by eliminating the need to conduct informal consultation and to obtain written concurrence from FWS or NMFS for those National Fire Plan (NFP) actions that were not likely to adversely affect listed species or designated critical habitat.

The court held that the regulations were “arbitrary and capricious” under the Administrative Procedure Act, finding that the purported rationale for the regulations was not supported by evidence in the record. Specifically, Judge Kessler found “there is undisputed evidence in the record that the pre-existing consultation procedures had, in the very recent past, been streamlined so as to expedite the processing of NFP projects without sacrificing the safeguards contained in those procedures.”

Judge Kessler had upheld (pdf) the regulations in 2006, but revisited the ruling after environmental groups filed a motion for reconsideration. Judge Kessler had taken the matter under submission for six years, and apologized in a footnote for taking so long to issue the opinion.
 

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The U.S. Fish and Wildlife Service (FWS) and the California Department of Fish and Game (DFG) have approved the San Diego County Water Authority’s (Authority) Natural Community Conservation Plan/Habitat Conservation Plan (NCCP/HCP), which is expected to contribute to the conservation of San Diego County’s natural resources, while providing a more efficient endangered species permitting process for the Authority. The 55-year plan satisfies the requirements for incidental take authorization under California’s Natural Community Planning Act and the federal Endangered Species Act.

The comprehensive plan covers 63 plant and animal species and their habitats that may be adversely affected by Authority activities, including the construction, operation, repair, and maintenance of current and future water supply infrastructure facilities. The 63 species include 26 plants, 13 birds, nine reptiles, eight mammals, five invertebrates, and two amphibians. Of the 63 species covered by the plan, 18 are currently listed as endangered or threatened under the state and/or federal Endangered Species Acts. The plan covers roughly 922,000 acres in San Diego County, which encompasses areas served by the Authority and its member water agencies. The plan also includes a small portion of land in south-central Riverside County.

The Authority submitted the NCCP/HCP, along with a draft Environmental Impact Report/Environmental Impact Statement (EIR/EIS), to FWS and DFG in March 2010 (pdf) as part of its application for an incidental take permit. A final EIR/EIS was issued by the Authority and FWS in February 2011 (pdf) in accordance with the National Environmental Policy Act (NEPA) and the California Environmental Quality Act. A record of decision (pdf) was issued under NEPA in September 2011. The final NCCP/HCP and EIR/EIS documents are available here.

Concurrent with approval of the NCCP/HCP, FWS issued an incidental take permit (pdf) to the Authority that allows limited impacts to the listed species. If any of the remaining species covered by the plan become listed in the future, they will automatically be added to the permit.

According to the San Diego Union-Tribune, the three agencies “worked closely and collaboratively to find a way to comprehensively address potential endangered species impacts from the water authority’s projects and activities.” (San Diego Union-Tribune, Jan. 9, 2012, Mike Lee). Jim Bartel, field supervisor for FWS’s Carlsbad office, also stated that the plan “is a great example of innovative and effective environmental planning.”
 

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Federal and state officials have issued proposed changes to the Bay Delta Conservation Plan’s (BDCP) Memorandum of Agreement (MOA) to address public comments concerning the language of the MOA and the need for meaningful public involvement in the BDCP process.

The U.S. Bureau of Reclamation (Reclamation) and the California Department of Water Resources (DWR) issued the draft MOA on September 6, 2011 and requested public comments (pdf) by November 16, 2011. The MOA is intended to replace in its entirety an earlier memorandum of agreement that was executed in March 2009.

In response to comments received from the public, federal, and state agencies issued a revised version of the MOA (pdf), comprehensive responses (pdf) to the comments, and a summary (pdf) of the comments. Revisions to the MOA included clarifying that the BDCP will address both water supply and environmental conditions, revising the BDCP schedule, and further clarifying the role of consultants in the BDCP process.

The MOA establishes a joint process for development of the BDCP among Reclamation, DWR, and certain California public water agencies that export water from the Sacramento-San Joaquin River Delta. The MOA, titled the “"First Amendment to the Memorandum of Agreement (MOA) Regarding Collaboration on the Planning, Preliminary Design and Environmental Compliance for the Delta Habitat Conservation and Conveyance Program in Connection with the Development of the Bay Delta Conservation Plan,” is intended to enable a timely analysis of conservation and water supply measures developed in the BDCP.
 

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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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Today, on October 31, 2011, the Supreme Court of the United States denied (pdf) review of a constitutional challenge to water delivery regulations regarding the Central Valley Project and California State Water Project intended to protect the threatened delta smelt. The petition for writ of certiorari was filed by the Pacific Legal Foundation on behalf of Stewart & Jasper Orchards, and asserted that application of the Endangered Species Act (ESA) to the delta smelt, a noncommercial fish that is only found in California, is an unconstitutional exercise of congressional power under the commerce clause of the U.S. Constitution. The government opposed (pdf) the petition by asserting, among other things, that the ESA is a comprehensive regulatory statute bearing a substantial relation to interstate commerce.

Some found it unsurprising that the Supreme Court did not take the case because there is no split in the federal courts of appeal on the issue. To date, the Supreme Court has declined to review constitutional challenges to the ESA on six different occasions.

In late March, the U.S. Court of Appeals for the Ninth Circuit held that the water delivery regulations did not violate the commerce clause. The court concluded that the protection of endangered and threatened species (including wholly intrastate species such as the delta smelt) bears a substantial relation to interstate commerce. The petition for writ of certiorari was filed on June 22, 2011.
 

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

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

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

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

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

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

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On August 31, 2011, the U.S. District Court for the Eastern District of California enjoined implementation (pdf) of a water management action (referred to as the “Fall X2 Action”), which the U.S. Fish and Wildlife Service (Service) and Bureau of Reclamation (Reclamation) proposed to take pursuant to a 2008 biological opinion (BiOp) for operation of the California State Water Project and federal Central Valley Project in the Sacramento – San Joaquin River Delta (Delta).  Under the BiOp’s reasonable and prudent alternative, the Fall X2 Action requires a combination of reservoir releases upstream from the Delta and reductions of water exports south of the Delta to maintain a monthly average location of two parts per thousand salinity (X2) no greater (more eastward) than 74 kilometers (km) from the Golden Gate Bridge.  The Service and Reclamation took the position that this Action would benefit the delta smelt.  Plaintiffs the State of California, public water agencies, and agricultural interests sought to enjoin the Action, arguing it would provide no benefit for the species but would impose restrictions that would result in the loss of billions of gallons of water.

In its decision prohibiting implementation of the Fall X2 Action as proposed by the Service, the Court found that the estimated cost of the Fall X2 Action to water users would be 670,000 acre feet of water if 2012 is a critically dry or dry year, or 300,000 acre feet if 2012 is a below normal or above normal year.  The Court determined that this water loss would impact long-term water supply reliability for both domestic and agricultural users, and that there would be further impacts to groundwater recharge programs, with resulting direct environmental impacts to groundwater levels, groundwater quality, and energy use.  The Court further reasoned that such water supply reductions would cause economic impacts to farmers and could have socioeconomic impacts on agricultural communities, although the magnitude of any such economic and/or socioeconomic impacts given the “very good” water year in 2011 was unclear.

With respect to the benefit of the Fall X2 Action on the delta smelt, the Court found that the “scientific evidence in support of imposing any Fall X2 action is manifestly equivocal.  There is essentially no biological evidence to support the necessity of the specific 74 km requirement set to be triggered in this 'wet' water year.  The agencies 'still don't get it.'  They continue to believe their 'right to be mistaken' excuses precise and competent scientific analysis for actions they know will wreak havoc on California's water supply.”

In balancing the hardships, the Court found that the record supported a requirement that the location of X2 in the fall not be allowed to shift east of the confluence of the Sacramento and San Joaquin Rivers.  Specifically, the Court found that positioning the location of X2 at 79 km would significantly reduce the water supply impact (from 300,000 acre feet or more to 90,000 acre feet), and would serve the stated objective of the Service to collect delta smelt population data to determine whether the Action might benefit the species.  The Court balanced the imperiled status of the species, the “equivocal and highly disputed support” for the Fall X2 Action, and the “even weaker and unjustified support” for positioning the location of X2 at the 74 km marker, against the “substantial and damaging water supply impact of doing so,” and determined that positioning the location of X2 at the 79 km marker achieved equity. 

In sum, the Court’s decision provides that the Fall X2 Action may not be implemented at 74 km as proposed by the Service and Reclamation; rather the federal agencies may only require the location of X2 to be held at 79 km this fall.  The underlying case, which the court decided (pdf) in plaintiffs favor, is currently on appeal to the Ninth Circuit.

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On August 25, 2011, the United States Court of Appeals for the Ninth Circuit denied (pdf) an emergency motion for an injunction pending appeal to re-instate Endangered Species Act (ESA) protections for gray wolves in Montana, Idaho, Oregon, Washington, and Utah. Environmental groups appealed the case to the Ninth Circuit on August 13, 2011, after a federal district court upheld legislation directing the U.S. Fish & Wildlife Service (Service) to reissue a 2009 rule that removed ESA restrictions on the gray wolf, except in the state of Wyoming. The same rule was determined by a district court to be illegal in 2010.

In the emergency motion, the environmental groups asserted (pdf), among other things, that the legislation violated the separation-of-powers clause of the United States Constitution because Congress had ordered an outcome in ongoing litigation without amending the underlying law, thereby blocking judicial review. The Service asserted (pdf) that the environmental groups were not likely to succeed on the merits given controlling case law, and that no evidence had been produced showing that the viability of the gray wolf population would be irreparably harmed by the transfer of management authority over the wolves to the states.

The Court set an expedited briefing schedule for the merits of the appeal, and expects to hear the case in November 2011. According to the environmental groups, Idaho plans to start its wolf-hunting season on August 30, 2011 and Montana is scheduled to open its season on September 30, 2011.
 

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On August 15, 2011, the National Marine Fisheries Service (NMFS) published a Federal Register notice (pdf) announcing the five-year review reports for six species of salmon and steelhead listed under the Endangered Species Act (ESA). NMFS completed reviews for five Pacific salmon species evolutionary significant units (ESUs), and one steelhead distinct population segment (DPS) in California. Specifically, reviews were completed for the Sacramento River winter-run Chinook salmon (pdf), the Central Valley spring-run Chinook (pdf), the Central Valley steelhead (pdf), the Central California Coast coho salmon (pdf), the Southern Oregon/Northern California coho salmon (pdf), and the California Coastal Chinook salmon (pdf).

NMFS completed the reviews pursuant to section 4 of the ESA, which requires federal agencies to conduct reviews of listed species at least once every five years. Based on these reviews, NMFS determines whether a species should be delisted, or reclassified from endangered to threatened (or threatened to endangered).

In the reports, NMFS concluded that each of the species is to retain its current ESA listing classification. NMFS found that, although many salmon and steelhead populations within the ESUs and DPSs have experienced declines in abundance over the last five years, their overall status indicates that their risk of extinction has not changed since 2005. The current listings are as follows:

• Sacramento River winter-run Chinook salmon (Endangered)
• Central Valley spring-run Chinook (Threatened)
• Central Valley steelhead (Threatened)
• Central California Coast coho salmon (Endangered)
• Southern Oregon/Northern California coho salmon (Threatened)
• California Coastal Chinook salmon (Threatened)

According to NMFS, the declines in salmon and steelhead populations are most likely due to poor ocean conditions and drought. Factors that continue to pose a threat to their survival and recovery include a wide range of activities, including overfishing, predation, loss of habitat, hydropower development, hatchery practices, changes in ocean conditions and productivity, drought, and the effects of global climate change.

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