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.


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.

U.S. Fish and Wildlife Service Affirms Listing of the White Bluffs Bladderpod

The U.S. Fish and Wildlife Service (Service) recently affirmed (pdf) its decision to list the White Bluffs bladderpod (Physaria douglasii subsp. tuplashensis) as threatened under the Endangered Species Act (ESA).  The Service also revised its designation of critical habitat for the plant species to exclude certain private and state lands in Franklin County, Washington.

The Service previously published a final rule to list the species (pdf) and designate critical habitat (pdf) on April 23, 2013.  However, the Service delayed the effective date of these rules in order to accept and consider additional public comments.  In its recent decision, the Service affirmed its listing determination, finding the White Bluffs bladderpod is threatened by wildfire, landslides, recreational activities and off-road vehicle use, nonnative plants, small population size, and limited geographic range.

Critics had challenged the listing by alleging that new information indicated the species is not a distinct subspecies of Physaria douglasii.  The Service, however, determined that the new information is inconclusive and affirmed its decision.

The Service also reevaluated its original designation of critical habitat in response to new public comments and information, including aerial photographs and site visits.  The Service determined that certain areas designated as critical habitat in the prior rule do not meet the statutory definition, and reduced the critical habitat acreage from 2,828 to 2,033 acres.

 

Committee Recommends Delisting Yellowstone Grizzly Bear

Last week, the Interagency Grizzly Bear Committee, a panel consisting of federal, state, local, and tribal representatives, recommended that the U.S. Fish and Wildlife Service (Service) remove the grizzly bear (Ursus arctos horribilis) from the list of threatened and endangered species under the Endangered Species Act (ESA). If the Service agrees, it will initiate the rule-making process to delist the species. The Service is expected to make a decision next month.

The Yellowstone grizzly bear population is found in Montana, Idaho and Wyoming. When initially listed under the ESA, the population consisted of approximately 136 members. Today, reports indicate the species has more than 650 members.

Environmental groups contend that delisting the species is premature because the bears’ primary food source has declined due to climate change. Specifically, whitebark pine trees, which produce a nut that the bears eat, are less prevalent due to pests that previously could not survive in cold temperatures. However, according to the interagency panel, the grizzly bears’ fat levels have remained the same, thereby indicating that the species is adapting by seeking out alternative food sources.
 

Oversight of Pesticide Ingredients May Trigger a Duty to Consult under the Endangered Species Act

In Center for Biological Diversity v. Environmental Protection Agency, No. 11-cv-00293 (pdf), plaintiffs sued the Environmental Protection Agency (EPA), alleging that EPA’s oversight of pesticide ingredients, including trifluralin, triggered a duty to consult with the National Marine Fisheries Service about trifluralin’s possible effects on species listed under the Endangered Species Act (ESA). EPA and defendant intervenors representing the farming industry filed Rule 12(e) motions, requesting more definite statements, and alleging the complaint was so vague and ambiguous that the parties were unable to prepare responses. The United States District Court for the Northern District of California agreed, and held that the amended complaint was too ambiguous as to which affirmative agency actions required EPA to consult about trifluralin before registering it. The court ordered plaintiffs to provide a comprehensive list of every affirmative act that allegedly triggered the duty to consult and the date of each act in an amended complaint.

 

National Marine Fisheries Service Considers Listing the Pinto Abalone under the Endangered Species Act

The National Marine Fisheries Service (NMFS) published a 90-day finding (pdf) on two petitions to list the pinto abalone (Haliotis kamtschatkana) as threatened or endangered under the Endangered Species Act (ESA) and designating critical habitat for the species. According to NMFS, there is substantial scientific or commercial information indicating that listing the species under the ESA may be warranted.

The pinto abalone is a marine gastropod mollusk found in the Pacific Ocean. Its range extends from Sitka Island, Alaska, to Baja California, Mexico, though it is mostly found off the shores of Washington, Alaska and British Columbia. According to NMFS, factors affecting the species include recreational and/or commercial fisheries, as well as climate change and its associated impacts, such as low salinity, elevated water temperatures and ocean acidification.

NMFS is requesting comments and information by January 17, 2014.
 

U.S. Fish and Wildlife Service Proposes Delisting the Inyo California Towhee

                                                       Photograph By Alan Vernon

On November 4, 2013, the U.S. Fish and Wildlife Service (Service) published a proposed rule (pdf) to remove the Inyo California towhee (Pipilo crissalis eremophilus) from the list of threatened and endangered species under the Endangered Species Act (ESA). The Service concluded that delisting the Inyo California towhee is warranted because substantial threats to the species have been ameliorated or reduced since listing, and the species no longer meets the definition of a threatened species under the ESA. 

According to the Service, the total rangewide population of the towhees indicates a self-sustaining population. Specifically, the species’ population has increased from 200 individual towhees at the time of listing to between 640 and 741. A cooperative agreement between land managers and the Service also represents an ongoing commitment to the conservation of the towhee and its habitat. 

Threats to the towhee historically included grazing by feral equines, recreational activities such as hiking, camping, hunting, and off-highway vehicle use, water diversion, mining, energy development, invasive and nonnative plants, predation, and climate change.  

Comments on the proposed rule must be submitted by January 3, 2014.