Paul Weiland

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Paul Weiland is the Chair of Nossaman's Environment and Land Use Practice Group. He focuses on litigation, permitting, and compliance counseling. Mr. Weiland's clients include public agencies, private developers, large landowners, and trade associations. He counsels clients regarding land use, endangered species, wetlands, water quality, air quality, climate change, green building, transportation, and hazardous substances issues.

In addition, Mr. Weiland litigates environmental and natural resources matters both at the trial court and appellate court level. His experience includes litigation involving the Administrative Procedure Act, Clean Air Act, Clean Water Act, Comprehensive Environmental Response, Compensation, and Liability Act, Endangered Species Act, Federal Land Policy and Management Act, National Environmental Policy Act, National Forest Management Act, Resource Conservation and Recovery Act, and Wilderness Act.

Prior to joining Nossaman, Mr. Weiland worked in the Law and Policy Section, Environmental and Natural Resources Division of the U.S. Department of Justice. There, he was lead counsel for the United States in a number of high profile trial and appellate cases. He assisted federal agencies in the formulation of policies and rules and has drafted comments on proposed legislation regarding the Endangered Species Act, federalism and preemption, the National Environmental Policy Act, regulatory reform, small business, defense, and transportation.

En Banc Ninth Circuit Holds ESA Consultation Requirement Applies to Renewal of Long-Term Water Contracts

In a unanimous decision, eleven active judges on the United States Court of Appeals for the Ninth Circuit held that the duty to consult under section 7(a)(2) of the Endangered Species Act (ESA) when a federal agency action may affect a listed species or designated critical habitat of such species applies to the decision of the Bureau of Reclamation (Bureau) to renew long-term contracts to provide water to non-Federal parties. The decision, which reversed prior decisions by a three-judge Ninth Circuit panel and federal district court, effectively requires the Bureau to consult with the U.S. Fish and Wildlife Service (Service) regarding the effects of contract renewals on the threatened delta smelt and to renegotiate the contracts following such consultation.

The decision has potentially far-reaching implications in California because it suggests that even those who hold long-term contracts with the United States for the provision of water or senior water rights under state law must comply with the Endangered Species Act.

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New Article Takes Stock of Federal Agency Proposal to Use Surrogates to Establish Take Limits

In an article forthcoming in the Journal of Environmental Studies and Sciences, Dr. Dennis Murphy and I examine a proposal by the Fish and Wildlife Service and National Marine Fisheries Service to amend the existing regulations that implement the interagency consultation process set out in Section 7 of the Endangered Species Act by codifying their pre-existing practice of using surrogates to express the amount or extent of incidental take of listed species.  We describe the proposed rule, place the use of surrogates for conservation planning in historical context, and describe caselaw respecting the use of surrogates.  We go on to contend that the proposed rule leaves the process of surrogate selection and application without essential implementation details and describe five essential steps in surrogate selection and validation.

  1. Provide an explanation of the reasons why the direct assessment in the form of take of a specified number of individuals of a listed species or a proportion of the population of that species cannot be measured and assessed.
  2. Apply a structured deductive process to match a prospective surrogate with the listed species, employing available demographic and geographic information, inferences from other species, and experiences from conservation planning efforts elsewhere, which have successfully or unsuccessfully engaged surrogate approaches.
  3. Present a clear description of similarities and differences between the likely responses of the surrogate and target species to salient environmental phenomena, and identify any uncertainties that may manifest as different responses to environmental stressors.
  4. Articulate a means by which post-determination implementation and monitoring will be designed, using adaptive management to explore continuously the relationship and ecological relatedness between the surrogate and the listed species, and the responses of both to environmental stressors.
  5. Provide assurance that reinitiation of consultation will occur if it is found that the surrogate does not adequately (accurately) reflect the salient ecological responses of the listed species at any point that the incidental take statement remains in effect.

A pdf copy of the article is available here (pdf).

New article explores structured decision-making for imperiled species

In an article (pdf) forthcoming in the Journal of Environmental Studies and Sciences, Dennis Murphy and I explore the potential for adaptive management through structured decision-making to improve efforts to conserve imperiled species.  We note the many impediments to effective management, which include frequent default to best professional judgment.  We then explore the potential for adaptive management to overcome these impediments if it is implemented as a step-wise, structured approach incorporating scientific information into decision-making.  We go on to identify  five essential points of engagement where science guides adaptive management: developing conceptual models, confronting management prescriptions with available data, building quantitative models, designing monitoring schemes, and interpreting returns from monitoring.

House Passes Healthy Forests Bill that Would Amend ESA with Respect to Forest Reserve Projects

On September 20, 2013, H.R. 1526, the Restoring Healthy Forests for Healthy Communities Act (pdf), was passed by the House of Representatives by a vote of 244-173. Shortly thereafter, the bill was referred to the Senate Committee on Energy and Natural Resources. Notably, H.R. 1526 includes provisions that, for certain projects authorized under the bill, would alter the way interagency consultation is conducted under section 7(a)(2) of the Endangered Species Act (ESA) and would foreclose parties from seeking relief in federal court prior to obtaining a final, unappealable decision on the merits.

The bill was introduced in the House of Representatives by Congressman Doc Hastings (R-Wash,) and has 22 co-sponsors. Its principal stated purpose is to “restore employment and educational opportunities in, and improve the economic stability of, counties containing National Forest System land, while also reducing Forest Service management costs, by ensuring that such counties have a dependable source of revenue from National Forest System land.” Section 103(a) of the bill calls for the Secretary of Agriculture to designate Forest Reserve Revenue Areas for each unit in the National Forest System. Section 104(a) authorizes and encourages the Secretary to commence covered forest reserve projects in Forest Reserve Revenue Areas.

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Federal Wildlife Agencies Issue Proposed Rule that Would Codify Practice of Using Surrogates in Incidental Take Statements

On September 4, 2013, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, the Services) issued a proposal rule to amend the regulations governing consultation under section 7 of the Endangered Species Act (ESA) that would codify the practice of using surrogates to express the amount of extent of anticipated take in an incidental take statement issued concomitant with a biological opinion. The Services indicate that these changes are proposed “to improve the flexibility and clarify the development of incidental take statements.”

Section 7(b)(4) of the ESA provides that, where an agency action and anticipated incidental take will not violate section 7(a)(2), the apposite Service shall issue an incidental take statement that, among other things, “specifies the impact of such incidental taking on the species.” The Services acknowledge in the proposed rule the congressional preference for numerical limits with respect to individuals of the listed species. At the same time, the Services reference court decisions recognizing that in some circumstance use of surrogates, or indicators, may be acceptable as an alternative to numerical estimates of individuals. The proposed rule states that “evaluating impacts to a surrogate such as habitat, ecological conditions, or similar affected species may be the most reasonable and meaningful measure of assessing take of listed species.”

The proposed rule goes on to indicate that surrogates may be used, provided the incidental take statement (or accompanying biological opinion), “(1) Describes the causal link between the surrogate and take of the listed species; (2) describes why it is not practical to express the amount or extent of anticipated take or to monitor take-related impacts in terms of individuals of the listed species; and (3) sets a clear standard for determining when the extent of taking has been exceeded.” Interestingly, the proposed rule does not make reference to the scholarly literature on surrogates, which spans more than a quarter century. A recent, in-depth, treatment of the subject is provided by Tim Caro in Conservation by Proxy (Island Press, 2010).

The Services are accepting comments on the proposed rule until November 4, 2013.

Corps of Engineers Issues Guidance Regarding Section 7(a)(2) Consultation

On June 11, 2013, the U.S. Army Corps of Engineers issued a guidance memo (pdf) regarding its obligations under section 7 of the Endangered Species Act.  The memo focuses on the Corps’ consultation obligations under section 7(a)(2).  Notably, the Corps makes no reference to the Corps’ obligation under section 7(a)(1) to “utilize [its] authorities in furtherance of the purposes of this Act by carrying out programs for the conservation of endangered species and threatened species listed pursuant to section 4 of this Act.”

Section 7(a)(2) requires a federal action agency such as the Corps to, among other things, consult with the appropriate wildlife agency (that is, either the Fish and Wildlife Service or National Marine Fisheries Service) to ensure that any action "authorized, funded, or carried out" by the agency is "not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [designated critical habitat]."

In the context of its obligations under section 7(a)(2), the guidance interprets the scope of the “action” as well as the “environmental baseline,” which includes past and present impacts of activities other than the action.  The guidance emphasizes the need to define the action “in a precise manner, to ensure that any measures intended to minimize adverse impacts pursuant to the ESA accurately account for only those activities over which the Corps has discretion.”  With respect to existing structures that the Corps has a responsibility to maintain, the guidance states that “the how and when of the maintenance activities” may be part of the action and therefore the subject of consultation, but “the results of the maintenance” are part of the environmental baseline.

The Consultation regulations (pdf) specify that section 7 applies to “actions in which there is discretionary Federal involvement or control.”  50 C.F.R. 402.03.  In addition, the Consultation Handbook (pdf) uses an example of a dam to demonstrate that ongoing effects of an existing facility are part of the environmental baseline but, for example, the addition of a turbine to that dam is an action subject to section 7(a)(2).  Consultation Handbook, p. 4-28.  The discussion of maintenance of existing facilities in the guidance constitutes further interpretation of the regulatory regime rather than a restatement of existing regulations or guidance.

The guidance also discusses the formulation of reasonable and prudent alternatives (RPAs).  RPAs only need be developed when a wildlife agency has opined that the action is likely to jeopardize the continued existence of an endangered or threatened species or result in the destruction or adverse modification of designated critical habitat.  The guidance emphasizes that an RPA is a suggestion or recommendation and not legally binding on the Corps.  It goes on to state that it is essential that the Corps work closely with the pertinent wildlife agency to ensure the RPA “can actually be implemented by the Corps within our existing legal, economic, and practical limitations.”

The Consultation Handbook indicates that the wildlife agencies “are committed to working closely with the action agencies and applicants in developing reasonable and prudent alternatives.”  Consultation Handbook, p. 4-44.  In the guidance, the Corps emphasizes that it has unique expertise on the requisite issues of whether the RPA is consistent with the purpose of the action, can be implemented consistent with the scope of the Corps’ jurisdiction, and is economically and technically feasible.  The Corps further states that the law recognizes deference is owed to the Corp with respect to these matters.

While it is within the purview of the Corps to issue guidance regarding the consultation process, it would be preferable for the Administration to propose adjustments to the existing regulatory scheme that apply across the board to further the consistent application of the Act, improve upon the efficiency with which it is presently administered, better integrate science into decision-making in the context of consultation, and allow for notice and comment to engage interested parties and promote transparency in decision-making.

Plaintiffs Claim Victory in Sharp Park Case Despite Mixed Record of Success

On July 1, 2013, the United States District Court for the Northern District of California issued an order (pdf) granting, in part, Plaintiffs’ motion for attorneys fees in Wild Equity Institute v. City and County of San Francisco, N.D. Cal. Case No. C 11-958. In the order, the court awarded plaintiffs just 25 percent of the fees requested. The court had previously dismissed the case as moot, which we reported here.

Plaintiffs initiated the lawsuit in an effort to require the City to obtain an incidental take permit under section 10 of the Endangered Species Act (ESA) for the operation of Sharp Park golf course. After the court denied Plaintiffs' motion for preliminary injunctive relief and Plaintiffs' subsequent motion for summary judgment, it dismissed the lawsuit as moot due to the fact that the Fish and Wildlife Service issued a biological opinion under section 7 of the ESA.  Plaintiffs both appealed from the order dismissing the action and sought fees and costs based on the contention they achieved their litigation objectives.

The court found an award of attorneys’ fees and costs to be appropriate under the so-called catalyst theory because, in its view, there was a causal relationship between the ultimate outcome and the lawsuit, and as such an award of some fees was required by law. At the same time, the court noted that “plaintiffs did not prevail on a single substantive motion before the court,” and that the “grossly inefficient allocation of resources” by plaintiffs’ counsel “seems unwarranted by this simple ESA action.” The court went on to state that “little seems to have been gained by plaintiffs,” and “plaintiffs do not seem satisfied with the outcome of the suit.” These apparently are among the factors the court took into account when it reduced the fee award by 75 percent in relation to the amount requested by Plaintiffs.

Nossaman serves as outside counsel to the City and County of San Francisco in the matter.

U.S. Fish and Wildlife Service Designates 2,485 Acres as Critical Habitat for Buena Vista Lake Shrew

The U.S. Fish and Wildlife Service (Service) designated 2,485 acres in Kern County and Kings County in California as critical habitat for the Buena Vista Lake shrew (Sorex ornatus relictus).  The Buena Vista Lake shrew is a small, insect-eating mammal native to the southern San Joaquin Valley.

In 2005, the Service issued a final rule designating just 84 acres as critical habitat.  That rule was challenged, and the Service settled the lawsuit and initiated a new rulemaking.  Pursuant to that rulemaking process, in 2012 the Service issued a proposed rule designating 5,182 acres as critical habitat.  The Service reduced the area designated by 2,687 acres as a result of implementation of a habitat management plan by the City of Bakersfield and an additional 10 acres due to adjustment to mapping boundaries.

Idaho Enacts Law Declaring the State has Primacy over Resident Fish and Wildlife

The State of Idaho enacted a law (pdf) this spring asserting that the State has “primacy over the management of fish and wildlife.” The law was introduced as Senate Bill 1061 and signed into law by Governor Butch Otter on March 22, 2013. In addition, the law states that “introduction or reintroduction of any federally listed species onto lands within the state or into state waters, including those actions that would impair or impede the state's primacy over its land and water, without state consultation and approval is against the policy of the state of Idaho.” The law plainly is intended to provide State officials with an additional tool as it negotiates with federal officials regarding threatened and endangered species. As one reporter who covered the enactment of the law explained,

“In theory, the bill gives the state final say on whether or how endangered or threatened plants and animals are introduced in the state. Reality could be different, though…”

(Capitol Press, May 13, 2013 by Sean Ellis.) The Supremacy Clause, Article VI, clause 2, of the U.S. Constitution, establishes that federal law is supreme provided it is consistent with the Constitution. Together with the federal Endangered Species Act, the Supremacy Clause likely limits the effect of this Idaho law.

New Book Outlines Challenges Southwest Faces Due to Climate Change

The southwestern United States faces a host of challenges as a result of climate change including strained water resources, greater prevalence of tree-killing pests, and potentially significant alterations of agricultural infrastructure. A hotter future is projected for the Southwest—a region stretching from the California coast to the plains of eastern Colorado and New Mexico—and future heat and changes in precipitation will present challenges for managing natural resources, water, infrastructure, and threats to human health. Climate change is already complicating efforts to conserve threatened and endangered species.

Assessment of Climate Change in the Southwest United States, published by Island Press and available for order here, is a landmark study that addresses these issues. It focuses on current climate conditions in the region, the environment of the past, what is projected to change over the 21st century and how this will impact ecosystems, water resources, agricultural production, energy supply and delivery, transportation and human health. I contributed to the preparation of the assessment and co-authored chapter 18, which focuses on climate choices for a sustainable Southwest.

A consortium of researchers from the Southwest Climate Alliance coordinated the assessment; these scientists are affiliated with the National Oceanic and Atmospheric Administration’s Regional Integrated Sciences and Assessment Program and the U.S. Department of the Interior Southwest Climate Science Center. The book blends the contributions of 120 experts in climate science, economics, ecology, engineering, geography, hydrology, law, planning, resource management and other disciplines. This book is one of ten regional technical inputs to the 2013 National Climate Assessment released in draft form earlier this year.

I am pleased to offer our readers a 25% discount when ordering the book through Island Press. Just use discount code 5NCA to get the discount off of this book or any other National Climate Assessment regional technical inputs.