The U.S. Fish and Wildlife Service (Service) has announced the availability of a revised recovery plan for the pallid sturgeon (Scaphirhynchus albus), a species that is found in the Missouri and Mississippi River basins, has been described as having a "unique dinosaur-like appearance," and has been listed as endangered since 1990. As summarized by the Service, the revised recovery plan updates the "current understanding of the species life history requirements, identifies probable threats that were not originally recognized, includes revised recovery criteria, and based on improved understanding of the species, describes those actions believed necessary to eventually delist the species." The Service believes that the pallid sturgeon "are an important indicator of the health of several of America's largest rivers, and represent a unique piece of America's natural history, with fossil ancestors dating back over 70 million years." The original recovery plan was drafted in 1993.
The U.S. Fish and Wildlife Service has announced a final rule listing the Georgetown salamander (Eurycea naufragia) and Salado salamander (Eureycea chisholmensis) as threatened species under the Endangered Species Act. The final rule is scheduled to be published in the Federal Register on Monday. According to an article by Claire Osborn of the Austin American-Statesman, "Williamson County officials have said the area would lose millions of dollars in development if the salamanders are listed."
In August 2008, the U.S. Fish and Wildlife Service (Service) issued a proposed rule to delist the Hawaiian hawk (Buteo solitarius), also referred to as the io, from the federal list of endangered or threatened species. The proposed rule states that the proposed action is "based on a thorough review of the best available scientific data, which indicates that range-wide population estimates have been stable for at least 20 years, and the species has recovered and is not likely to become an endangered species in the foreseeable future throughout all or a significant portion of its range." While the official comment periods on the proposed rule and the proposed post-delisting monitoring plan closed on August 4, 2009, the Service did not make a final determination on the proposed rule.
Last week, on February 12, 2014, the Service announced the reopening of the public comment period on the proposed rule to delist the Hawaiian hawk. In the announcement, the Service states that "[a]lthough new information shows negative habitat trends due to urbanization and nonnative plant species invasion, efforts at habitat restoration that benefit the Hawaiian hawk are achieving success," and that even in the face of potential habitat concerns "the Hawaiian hawk is resilient enough to maintain itself over time in a variety of habitat types."
The announcement states that comments submitted during the prior comment periods do not need to be resubmitted. However, comments on the new information presented in the announcement "must be received or postmarked no later than April 14, 2014."
The proposed rule acknowledges that if the Hawaiian hawk is delisted, thereby stripping away all protection provided by the Endangered Species Act, the hawk would still be protected by the Migratory Bird Treaty Act.
For another take on the Service's announcement and proposed action, see the following article by Carolyn Lucas-Zenk in the West Hawaii Today.
As recently reported in The Oregonian, the U.S. Fish and Wildlife Service (Service) has declared the Oregon chub (Oregonichthys crameri) recovered, and will remove the species from the list of federally threatened and endangered species. According to the report, this is the first fish ever taken off the endangered species list. In a previous report, the Service stated that the fish's improved status was attributable to the efforts of the Oregon Chub Working Group, and "successful introduction of Oregon chub into new locations within their historical range and the discovery of new, previously undocumented populations."
On January 17, 2014, President Obama signed into law the $1.1 trillion dollar Omnibus Spending Bill, thereby funding the federal government through October 1. Included in the Bill was a provision directing the Secretary of the Interior to reinstate an exemption that exempted the scimitar-horned oryx (Oryx dammah), the dama gazelle (Gazella dama), and the addax antelope (Addax nasomaculatus) from the Endangered Species Act. The rider was introduced by Representative John Carter (R-Tex). As we recently reported, proponents of the rider believe that exempting the species will incentivize ranchers to maintain their populations in order to profit from hunting revenue. Since the species were re-listed as endangered in 2012, their populations have fallen significantly.
As we previously reported, the U.S. Fish and Wildlife Service (Service) has proposed to list the Gunnison sage-grouse (Centrocercus minimus) and the Greater sage-grouse (Centrocercus urophasianus) as endangered and threatened species under the Endangered Species Act, and to designate millions of acres of land as critical habitat for the species. (See our prior posts on January 23, 2013 and October 29, 2013.) Because of the controversy surrounding the proposed listings and designations, the Service has extended the comment period on the proposals to ensure that the public has an adequate opportunity to review and comment on the proposed rules. (See our prior posts on December 19, 2013 and November 13, 2013.) In an effort to avoid any further action by the Service, a number of State and local agencies are attempting to develop a sage grouse management plan that would avoid the need for listing either of the two species. (See articles by Heather Sackett on January 5, 2014, post by Mack Cole on January 6, 2014, article by Glenn Oppel on January 8, 2014.) Only time will tell whether these efforts are successful.
U.S. Fish and Wildlife Service Extends Comment Period for Greater Sage-Grouse and Designates Critical Habitat for Franciscan Manzanita
Today, the U.S. Fish and Wildlife Service ("Service") announced (pdf) the extension of the public comment period on the proposals to list and designate critical habitat for the the Bi-State Distinct Population Segment (DPS) of greater sage-grouse (Centrocercus urophasianus) along the California-Nevada border under the Endangered Species Act, and also announced the designation of approximately 230 acres in San Francisco County as critical habitat for the endangered Franciscan manzanita (Arctostaphylos franciscana). The Service also released the final economic analysis of the estimated incremental impact of the critical habitat designation in San Francisco County, which projected that the direct incremental cost of the critical habitat designation would be $31,435 over the next 20 years. The economic analysis concludes that a large portion of the estimated costs would be due to additional consultation costs. As for the sage-grouse DPS, the Service's announcement states that the comment period on the proposed listing and the proposed 1.86 million acre critical habitat designation would both be extended to February 10, 2014.
On November 20, 2013, the United States District Court for the Southern District of California rejected a challenge by various plaintiffs and upheld the biological opinion and incidental take statement issued by the U.S. Fish and Wildlife Service (Service) for the Ocotillo Wind Energy Facility Project (Project) located in the Sonoran Desert in Imperial County, California. See The Protect Our Communities Foundation v. Ashe, No. 12-cv-2212 (S.D. Cal. Nov. 20, 2013) (pdf). The proposed Project, a utility-scale wind power project, would be comprised of 112 wind turbines located on more than 10,000 acres of public land operated by the Bureau of Land Management (BLM). Because the Project required authorization from the BLM, a federal agency, and overlapped with known usable forage habitat for the endangered Peninsular Bighorn Sheep, a distinct population segment of the desert bighorn sheep (Ovis Canadensis nelson), consultation with the Service was required under Section 7 of the Endangered Species Act.
In 2011, the BLM initiated consultation with the Service and submitted a biological assessment. Although the Project would potentially reduce suitable forage habitat by approximately 3,962 acres, in 2012 the Service issued a biological opinion concluding that “the proposed action is not likely to jeopardize the continued existence” of the Peninsular Bighorn Sheep. The Service also issued an incidental take statement authorizing the incidental take of up to five adult ewes and five lambs.
Plaintiffs challenged the biological opinion in federal court. As summarized by the district court, the plaintiffs’ challenge was based on the following four arguments: (1) “the biological opinion is arbitrary and capricious because it improperly downplays the significance of lower elevation, valley-floor habitat,” (2) the biological opinion “is arbitrary and capricious because it ignores evidence that bighorn sheep are poor dispersers,” (3) the biological opinion “is arbitrary and capricious because it improperly downplays the potential for the project to cause stress and associated adverse effects,” and (4) the biological opinion “fails to use the best available scientific evidence.”
Foreshadowing its ultimate holding, the district court began its analysis by explaining that the biological opinion and the conclusions therein are subject to a “highly deferential” standard of review. The district court then addressed and dismissed each of the plaintiffs’ arguments, finding that the biological opinion “is rationally based on the facts and data from the administrative record,” and the Service “used the best scientific data available.” For example, the district court found that the biological opinion “presents a rational connection between the facts found and the conclusion that the Project would not affect connectivity among Bighorn sheep habitats.” Accordingly, the district court upheld the biological opinion and entered judgment in favor of the Service.
Last week, the U.S. Fish and Wildlife Service (Service) published in the Federal Register a notice of its Record of Decision on an Incidental Take Permit authorizing NiSource, Inc. (NiSource) to "take 10 federally listed species over a 50-year period." NiSource is engaged in natural gas transmission, storage, and distribution, as well as electric generation, transmission, and distribution. In 2009, NiSource applied for authorization under Section 10 of the Endangered Species Act to take 10 federally listed species "in the course of engaging in otherwise lawful gas and transmission and storage operations." The 10 species include the endangered Indiana bat (Myotis sodalis), threatened bog turtle, (Glyptemys muhlenbergii), threatened Madison Cave isopod (Antrolana lira), endangered clubshell mussel (Pleurobema clava), endangered northern riffleshell mussel (Epioblasma torulosa rangiana), endangered fanshell mussel (Cyprogenia stegaria), endangered James spinymussel (Pleurobema collina), endangered sheepnose mussel (Plethobasus cyphyus), endangered Nashville crayfish (Orconectes shoupi), and endangered American burying beetle (Nicrophorus americanus). Under Section 10 of the Endangered Species Act, an applicant is required to submit a proposed Habitat Conservation Plan, which must ensure that the applicant takes steps to avoid and minimize harm to listed species and mitigate the amount of harm that is unavoidable. As summarized by the Service, the Multi-Species Habitat Conservation Plan submitted by NiSource and approved by the Service "covers a suite of activities that NiSource uses to maintain and expand their pipelines and pipeline rights-of-way in 14 eastern U.S. states. Typical activities include right-of-way maintenance; facility inspection; upgrade and replacement of pipelines; forced relocations; and expansion projects."
The U.S. Fish and Wildlife Service (Service) recently announced that it has proposed listing two butterfly species under the Endangered Species Act because of "steep population declines." The two species are the Poweshiek skipperling (Oarisma poweshiek) and the Dakota skipper (Hesperia dacotae). The notice issued by the Service states that "[b]oth butterfly species use prairie habitat and are threatened by degradation or changes to their habitat." The Dakota skipper, which is proposed to be listed as a threatened species, is found in Minnesota, North Dakota, South Dakota and Canada. The Poweshiek skipperling, which is proposed to be listed as an endangered species, is found in Wisconsin, Michigan, and Canada, In addition to listing the species, the Service also proposed designating critical habitat for both species. According to the notice issued by the Service, comments will be accepted on the proposed listings and critical habitat designations throughout December 23, 2013.