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.

National Marine Fisheries Service Proposes Designating 36 Marine Areas as Critical Habitat for the Loggerhead Sea Turtle

The National Marine Fisheries Service (NMFS) recently issued a proposed rule (pdf) designating critical habitat for the Northwest Atlantic Ocean loggerhead sea turtle Distinct Population Segment (DPS) (Caretta caretta) within the Atlantic Ocean and the Gulf of Mexico. The 36 marine areas proposed for designation as critical habitat contain one or a combination of nearshore reproductive habitat, winter habitat, breeding areas, and migratory corridors.

The loggerhead sea turtle was listed worldwide as a threatened species under the Endangered Species Act (ESA) on July 28, 1978. No critical habitat was designated at that time. On September 22, 2011, NMFS and the U.S. Fish and Wildlife Service (FWS) jointly published a final rule revising the loggerhead’s listing from a single worldwide threatened species to nine DPSs. The final rule listed five DPSs as endangered and four, including the Northwest Atlantic Ocean DPS, as threatened.

The proposed rule declined to designate critical habitat for the North Pacific Ocean DPS. No marine areas meeting the definition of critical habitat were identified within the jurisdiction of the United States.

As we previously reported, FWS proposed designating critical habitat for the Northwest Atlantic Ocean DPS in terrestrial areas (nesting beaches) on March 25, 2013. Specifically, FWS published a proposed rule to designate almost 740 miles of coastline as critical habitat for the species. On July 18, FWS announced (pdf) that it would be reopening the comment period on the proposed rule. FWS also announced the availability of the draft economic analysis of the proposed designation.

The comment periods for both the NMFS and FWS proposed rules will remain open through September 16, 2013.

Fourth Circuit Strikes NMFS Biological Opinion Regarding Pesticide Registrations

In a unanimous panel decision, the United States Court of Appeals for the Fourth Circuit held (pdf) that a biological opinion issued by the National Marine Fisheries Service (NMFS) regarding the effects of three pesticides on certain salmonids “was not the product of reasoned decision-making.”  The Fourth Circuit refused to “silently rubber stamp” an agency decision where NMFS failed to provide a satisfactory explanation for key aspects of that decision.  Further, the court refused to allow NMFS to offer post hoc rationalizations for its decision in the form of an expert affidavit and arguments advanced by counsel in the course of the litigation.  In contrast to the lower court decision, which deferred to NMFS and found that it is not the duty of the court to sit in judgment of scientific standards, the Fourth Circuit took a hard look at the agency determination even as it applied a deferential standard of review.

NMFS issued the biological opinion after consulting with the Environmental Protection Agency (EPA) regarding the effects of chlorpyrifos, diazinon, and malathion on 27 species of Pacific salmonids.  NMFS concluded that the pesticides would jeopardize numerous species and adversely affect their critical habitat.  Having drawn these conclusions, the agency developed a reasonable and prudent alternative to the action proposed by EPA, which included a number of limitations on the use of those pesticides.

Pesticide manufacturers claimed NMFS failed to justify numerous aspects of its analysis, and the court focused on three of these.  First, the pesticide manufacturers argued that, in its analysis regarding the effects of the action on the listed species, NMFS failed to justify the assumption in its population model that salmonids would be exposed to lethal levels of the pesticides continuously for a 96-hour period.  The court noted that the assumption was severely criticized after NMFS released a draft biological opinion, but NMFS failed to respond to such criticism.  NMFS argued that it recognized the model’s limits in light of the assumption and that disclosing those limits justified its action.  The court rejected this argument, holding that the agency failed to articulate a satisfactory explanation for its action; the court reasoned that acknowledging the assumption was flawed necessitated more explanation, not less.

Second, the pesticide manufacturers claimed NMFS relied on outdated monitoring data.  The court stated that, after the draft biological opinion was released, a number of stakeholders directed NMFS to more recent available data.  The court held that NMFS “never adequately explained why it relied on older data despite the existence of new data and the potential drawbacks of using the older data.”  The court went on to explain that when an agency acknowledges that data it relies upon are outdated or inaccurate, it should analyze the new data or explain its choice to limit its analysis to the older data.

Third, the pesticide manufacturers claimed that the imposition of uniform no-spray buffers is unreasonable given that the buffers applied to water courses of varying depth and width.  NMFS argued it was not required to explain why it chose the reasonable and prudent alternative that it settled upon.  The court noted that the absence of an explanation was especially relevant in view of the potential economic consequences of the requirement.  While the court held that NMFS is not required to specify a reasonable and prudent alternative that is the best option for industry, it must address the economic feasibility of the option it selects.

The Fourth Circuit’s decision re-affirms that, although agency decisions are due deference, such deference is not boundless.  Those decisions must be reasoned and the agency cannot ignore deficiencies in its analysis.  The Fourth Circuit’s decision is consistent with the ESA’s requirement that the agency must use the best available data during the consultation process.

Public Comment Period for Proposed Designation of Hawaiian Monk Seal Critical Habitat Extended

The National Marine Fisheries Service (NMFS) recently reopened  the public comment period for its proposal to designate additional critical habitat for endangered Hawaiian monk seals (Monachus schauinslandi).  As we previously reported, on June 2, 2011, NMFS proposed revising the critical habitat for the Hawaiian monk seal pursuant to section 4 of the Endangered Species Act (ESA) by extending the current designation in the northwestern Hawaiian Islands out to the 500-meter depth contour, including Sand Island at Midway Islands; and by designating six new areas in the main Hawaiian Islands, including Kaula Island, Niihau, Kauai, Oahu, Maui nui, and Hawaii.  NMFS provided a 90-day comment period, ending August 31, 2011.

NMFS received numerous requests for an extension of the comment period.  The requests identified that additional time was needed to more fully consider the proposed rulemaking and provide comments on the proposed designation.  In response to those requests, NMFS elected to extend the deadline.  The public will now have until January 6, 2012 to comment on NMFS's proposed designation.

Documents and reference materials related to the proposed rulemaking are available via the NMFS Pacific Islands Regional Office Web site: