Katrina Diaz

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Katrina Diaz assists clients on a variety of complex land use, environmental, eminent domain and real estate matters, including matters dealing with the California Environmental Quality Act, the National Environmental Policy Act, and the Federal and State Constitutions. Ms. Diaz has worked on some of the largest public works projects in California, defending environmental documents, assisting with the precondemnation acquisition process, drafting pleadings and motions, propounding and responding to discovery, and assisting with trial preparation.


Court Allows ESA Claims Involving Oversight of Pesticides to Move Forward

In Center for Biological Diversity v. Environmental Protection Agency, No. 11-cv-00293-JCS (pdf), plaintiffs alleged that the Environmental Protection Agency (EPA) violated section 7 of the Endangered Species Act by failing to initiate and reinitiate consultation with the National Marine Fisheries and U.S. Fish and Wildlife Service with respect to its ongoing oversight of 382 active pesticide ingredients.

As previously reported, the United States District Court for the Northern District of California granted EPA’s motions to dismiss for failure to state an affirmative “agency action” that would trigger section 7. The court allowed plaintiffs to amend their complaint to provide a comprehensive list of every affirmative act that allegedly required the duty to consult.

In their amended complaint, plaintiffs asserted among other things that EPA’s reregistration of pesticides constitutes an agency action. EPA moved to dismiss, and the court granted in part and denied in the part the motion. The court dismissed certain claims for lack of subject matter jurisdiction due to statute of limitation issues, and denied the motion to dismiss with respect to other claims, holding reregistration and ongoing discretionary control over certain pesticides was sufficient to constitute agency action under section 7.
 

House Passes ESA Reform Package

On July 29, 2014, the U.S. House of Representatives passed Endangered Species Act (ESA) reform legislation introduced by members of the House Natural Resources Committee. As previously reported, the legislation consists of four bills seeking to amend the ESA by, among other things, requiring federal agencies to release to the public all data used to make its listing decisions, disclosing the amount of federal funds used in ESA-related lawsuits, and requiring that the “best scientific and commercial data available” include information provided by state, tribal, and county governments. The bill now heads to the Senate for approval. Commentators have noted, however, that passage by the Senate may be fruitless since the White House has issued a veto threat on the bill, claiming that it is presents “yet another administrative reporting requirement.” It has been over 40 years since the ESA was enacted and over 25 years since the most recent Congressional amendments to the statute.

U.S. Fish and Wildlife Service Downgrades Wood Stork From Endangered to Threatened

The U.S. Fish and Wildlife Service (Service) issued a final rule (pdf) reclassifying the U.S. breeding population of the wood stork (Mycteria americana) from endangered to threatened.

According to the Service, when the wood stork was listed as endangered in 1984, the population was decreasing at a rate of five percent per year. The Service now reports that the U.S. breeding population has increased its number of nesting pairs, and has expanded its breeding range.

Wood storks use a variety of freshwater and estuarine wetlands for nesting, feeding, and roosting. The Service’s downlisting acknowledges the positive impact that collaborative conservation efforts for the species’ habitat have had on the status of the breeding population. For example, the Wetlands Reserve Program has restored more than 200,000 acres of wetlands in Florida and more than 115,000 acres in Alabama, Georgia and South Carolina.

U.S. Fish and Wildlife Service Lists the New Mexico Jumping Mouse as Endangered

The U.S. Fish and Wildlife Service (Service) issued a final rule (pdf) listing the New Mexico meadow jumping mouse (Zapus hudsonius luteus) as endangered under the Endangered Species Act.

The jumping mouse is a small mammal that hibernates eight or nine months out of the year, which is longer than most mammals. In the three or four months it is active, the jumping mouse must breed, birth, raise its young, and store up sufficient fat reserves to survive the next hibernation period. In addition, the jumping mouse has a limited lifespan of three years or less, and produces only one small litter annually. Due to its low reproductive potential, the jumping mouse has limited capacity for high population growth.

The primary threat to the New Mexico meadow jumping mouse is cumulative habitat loss and habitat fragmentation across its range. The sources of habitat loss include impacts from grazing, water management and use, lack of water due to drought, and wildfires. The Service expects to publish a final rule designating critical habitat for the species in coming months.

The final rule listing the New Mexico meadow jumping mouse as endangered will become effective on July 10, 2014.

(Photo: U.S. Fish & Wildlife Service)

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Two Plant Species May Find Protection Under the Endangered Species Act

The U.S. Fish and Wildlife Service (Service) has issued a final rule (pdf) listing the Kentucky Glade Cress (Leavenworthia exigua var. laciniata) as threatened species under the Endangered Species Act (ESA). The Kentucky Glade Cress, a small, lilac-colored wildflower, is located in parts of Jefferson and Bullitt counties in Kentucky.  The primary threat to the species is the loss and degradation of its habitat, caused by development, roads, utilities, and conversion of its habitat to lawns. The final rule will become effective on June 5, 2014.

The Service also issued a proposed rule (pdf) to list the Georgia Rockcress (Arabis georgiana) as threatened under the ESA. The plant is found in Georgia and Alabama on steep river-bluff rocks covered with light soil. The primary threat to the species is habitat degradation and an influx of invasive exotic species, such as the Japanese honeysuckle. The proposed rule includes the designation of approximately 786 acres of critical habitat for the species in various counties throughout the two states, including in Floyd, Gordon, Harris, Muscogee, Chattahoochee, and Clay counties in Georgia, and in Bibb, Dallas, Elmore, Monroe, Russell, Sumter and Wilcox counties in Alabama. The Service will accept comments on the proposed designation until June 9, 2014.

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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.

U.S. Fish and Wildlife Service Lists Two Texas Salamanders as Threatened

The U.S. Fish and Wildlife Service (Service) issued a final rule (pdf) listing the Georgetown salamander (Eurycea naufragia) and the Salado salamander (Eureycea chisholmensis) as threatened under the Endangered Species Act (ESA). The Service also issued a proposed special rule for the Georgetown salamander under section 4(d) of the ESA, which authorizes the take of protected species in certain instances.

The primary threat to the species is habitat degradation due to declining water quality and disturbance of surface spring sites. According to the Service, urban development prevents the infiltration of surface water through soil, which alters the temperature, pH, and alkalinity of the species’ habitat.

The proposed special rule (pdf) would allow for take of the Georgetown salamander incidental to activities that are consistent with conservation measures contained in a City of Georgetown water quality ordinance. The ordinance seeks to reduce certain threats to the species by requiring, among other things, geological assessments to identify springs and streams on any development site, and the establishment of non-disturbance and minimal-disturbance zones.

The Service will accept comments on the proposed special rule until April 25, 2014.

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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.

U.S. Fish and Wildlife Service Seeks Proposals under Section 6 of the ESA for Federal Financial Assistance

The U.S. Fish and Wildlife Service (Service) is seeking proposals (pdf) from states or territories for federal grants from the Cooperative Endangered Species Conservation Fund (Fund) for voluntary conservation projects that benefit candidate, proposed, or listed species.

The Fund is authorized under Section 6 of the Endangered Species Act (ESA) and provides four different grant programs: 1) Conservation Grants, which help implement conservation projects; 2) Recovery Land Acquisition Grants, which fund the acquisition of habitat in support of approved or draft species recovery plans; 3) Habitat Conservation Planning (HCP) Assistance Grants, which support development of HCPs; and 4) HCP Land Acquisition Grants, which fund the acquisition of land associated with approved HCPs.

To receive grant funds, a state or territory must make a minimum contribution of 25 percent of the project’s total cost, or 10 percent when two or more states implement a joint program. Additionally, the state or territory must enter into, or currently have, a cooperative agreement with the Secretary of Interior.

The estimated budget for 2014 is $56 million. The Service is accepting grant proposals for 2014 until March 14th.