Court Invalidates Columbia River Biological Opinions, Again

Posted on August 5, 2011 by Paul Weiland

The United States District Court for the District of Oregon issued a decision (pdf) invalidating the National Marine Fisheries Service's (NMFS) 2008 and 2010 biological opinions for operation of the Federal Columbia River Power System (FCRPS) by the Army Corps of Engineers and Bureau of Reclamation after the parties to the litigation challenging those decisions filed cross-motions for summary judgment. The court held that NMFS improperly made a no jeopardy determination with respect to certain listed salmonids on the basis of unidentified habitat mitigation measures.

The FCRPS is comprised of 14 sets of dams and associated reservoirs, and the biological opinions covered operation of the facilities through 2018.  The 2008 biological opinion included a no jeopardy determination based, in part, on agreements with a number of entities including certain tribes and states. In response to concerns raised by the court, NMFS issued an adaptive management implementation plan in 2009 and then issued a supplemental biological opinion (pdf) in 2010 incorporating that plan. Plaintiffs National Wildlife Federation and the State of Oregon filed lawsuits challenging the 2008 and 2010 biological opinions.

In reviewing the parties' positions, the court noted that NMFS identified specific habitat mitigation measures through 2013 as the basis for its no jeopardy determination, but NMFS did not identify specific and verifiable mitigation plans beyond 2013.  For this reason, the court held that NMFS "improperly relies on habitat mitigation measures that are neither reasonably specific nor reasonably certain to occur, and in some cases not even identified."  Slip Op. at 11.  The court acknowledged federal defendants' argument that future habitat mitigation actions are certain to occur because the federal agencies committed to achieving specific, numerical improvements in habitat quality and survival.  Nonetheless, the court stated that the habitat mitigation program is "plagued with uncertainty."  Id. at 13.  The court went on to conclude that "Federal defendants simply cannot substitute their 'commitment' to survival improvement for specific actions they have evaluated and determined will provide the necessary biological response."  Id. at 16.

The court did not reach other claims advanced by plaintiffs including the arguments that NMFS used a flawed jeopardy standard in the biological opinions and failed to use the best available scientific data in measuring the effects of the action and the benefits of their proposed reasonable and prudent alternative on the listed species.

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Arizona District Court Dismisses Section 7(a)(1) Challenge to Forest Service

Posted on June 25, 2011 by Paul Weiland

The United States District Court for the District of Arizona entered summary judgment (pdf) for the United States Forest Service in a case filed by Defenders of Wildlife and other plaintiffs alleging the Forest Service failed to fulfill its duty to conserve under section 7(a)(1) of the Endangered Species Act (ESA).  The case focused on efforts to conserve the Mexican gray wolf (Canis lupus baileyi) by reintroducing an experimental population of the species into the Blue Range Wolf Recovery Area, which includes portions of east-central Arizona and west-central New Mexico.  Plaintiffs complained that too often wolves reintroduced into the Recovery Area were removed by the Forest Service for preying on livestock, arguing that the Forest Service's livestock permitting program is interfering with Mexican wolf recovery efforts.

Plaintiffs pursued two specific claims against the Forest Service under section 7(a)(1).  First, they argued that the Forest Service violated section 7(a)(1) by failing to develop and implement its own Mexican wolf conservation program.  In response, the Forest Service argued that it fulfilled its obligation under section 7(a)(1) by carrying out a conservation program, namely the Mexican wolf recovery plan (pdf), developed by the Fish and Wildlife Service.  The court interpreted section 7(a)(1) to impose a requirement on the Forest Service to "carry out a substantive conservation program for the Mexican gray wolf."  But the court went on to hold that Plaintiffs' position that the Forest Service must develop its own program and may not implement a program developed by the Fish and Wildlife Service "puts form over substance" and is not supported by the statute or relevant caselaw.

Second, Plaintiffs argued that the Forest Service has not contributed to the conservation of the Mexican wolf and, instead, demonstrated a preference for wolf removal to protect domestic livestock.  The court opined that, to the extent that the Forest Service took no action to conserve the species, such inaction would plainly violate the section 7(a)(1) duty to conserve.  But, in this case, the court held that the record demonstrates affirmative action to carry out the Fish and Wildlife Service wolf conservation program.

The court's holdings are consistent with the balance of the jurisprudence interpreting section 7(a)(1) of the ESA, which support the proposition that federal agencies "have substantial discretion in determining how best to fulfill their section 7(a)(1) obligations."  As a result, the decision reiterates the difficulty would-be plaintiffs will face if they pursue a claim under section 7(a)(1) of the ESA.

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Federal district court strikes down Fort Huachuca biological opinion

Posted on June 5, 2011 by Paul Weiland

In a decision that addresses a number of the more difficult issues the federal wildlife agencies grapple with during the section 7 consultation process, the United States District Court for the District of Arizona recently struck down (pdf) a biological opinion (pdf) issued by the Fish and Wildlife Service for ongoing operations at Fort Huachuca that affect species in the upper San Pedro River area of southeastern Arizona. The court also held that the Department of the Army violated its section 7 obligation by relying on the legally flawed biological opinion.

Fort Huachuca is a major military base in southeastern Arizona. Base operations affect two listed species, the endangered Huachuca water umbel (Lilaeopsis schaffneriana ssp. recurva) and the endangered southwestern willow flycatcher (Empidonax traillii extimus). The court identified two categories of impacts to the species: direct and indirect effects of activities within the Fort’s boundaries and indirect effects on a portion of the San Pedro River including groundwater and surface water consumption.

 Plaintiffs challenged the biological opinion on a number of grounds. They argued that the Service failed to evaluate impacts of the proposed action on recovery of the listed species. The court agreed noting, for example, that the biological opinion focuses on the extent to which the action will reduce the reproduction, numbers, and distribution of the listed species but not identifying the conditions necessary to allow for recovery of the species.

Plaintiffs also alleged that the biological opinion relies on uncertain and unidentified mitigation to offset impacts to the listed species. Again, the court agreed holding that the biological opinion relies on conservation measures that are neither reasonably specific nor reasonably certain to occur.

Finally, Plaintiffs claimed that the no jeopardy and no adverse modification determinations by the Service are supported by the administrative record and therefore fail to meet the Administrative Procedure Act standard for judicial review. The court agreed, in part, with Plaintiffs noting for example that the biological opinion does not analyze or even mention climate change.

The court characterized the Army’s section 7 duty as independent and substantive and faulted the Army for relying on a biological opinion that is arbitrary and capricious and, therefore, legally flawed. The decision demonstrates the difficulty the Service is having in some cases preparing effects analyses as the basis for jeopardy and adverse modification determinations that can withstand judicial scrutiny.
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18 Members of Congress Claim Pesticide BiOps Rely on Faulty Analysis and Ignore Best Available Information

Posted on February 4, 2011 by Robert Horton

Sacramento River and Adjacent FarmlandIn a letter to the President's Council on Environmental Quality (CEQ), 18 members of Congress urged the Obama Administration to "ensure that NMFS, EPA, the Department of the Interior, USDA, and DOJ work together" to strengthen the modeling and to use the best scientific and commercially available information to re-evaluate existing biological opinions (BiOps) and to inform forthcoming BiOps for EPA pesticide registrations.

The members of Congress claim that the existing BiOps, which prohibit the application of certain pesticides to cropland within certain buffer zones adjacent to streams, rivers, wetlands, and floodplain habitat to protect threatened and endangered salmon and steelhead, "will force family farmers out of business and devastate rural communities and trade throughout the districts we represent, while crippling our food production capacity for the foreseeable future."  According to the authors, the BiOps issued to date expand existing buffer zones to such a great extent that "it would affect millions of acres in the Northwest and California, including a staggering 61 percent of farmland in Washington state and 55 percent in Oregon."

The 18 members of Congress argue that the consultation process between the National Marine Fisheries Service (NMFS) and EPA for the first of the pesticide BiOps (issued in November 2008) was flawed because it lacked transparency, consultation with the agricultural community, and the opportunity for public comment.  More fundamentally, they argue that NMFS's consultation for all three of the existing BiOps ignored the best available scientific and commercial data on the prevalence of the pesticides in salmon spawning waterways.

The letter's authors cite a September 2008 letter from EPA's Director of Pesticide Programs to NMFS, which criticized the July 31, 2008 draft BiOp for failing to disclose NMFS's rationale for its determination that use of chlorpyrifos, diazinon, and malathion will jeopardize the continued existence of dozens of listed salmonids in California, Oregon, Washington, and Idaho.  In the September 2008 letter, EPA also complained that it could not meaningfully discuss the proposed Reasonable and Prudent Alternative because the BiOp "fails to identify a level of exposure to these pesticides that would not result, in NMFS['s] opinion, in jeopardy to the species."

As explained in more detail below, the letter's authors are especially concerned that the administration orchestrate future interagency consultations as well as consultations with the agriculture industry and other stakeholders because EPA faces a host of other court-mandated deadlines to determine whether other pesticide registrations may affect listed species, and if so, to consult.

The consultations in question stem from litigation initiated over a decade ago.  Under a court order in the seminal case of Washington Toxics Coalition v. EPA, EPA was required to review 55 pesticides to determine if they may affect listed species or their designated critical habitat.  EPA made may affect determinations for 37 of the 55 pesticides, and requested formal consultation with NMFS.  NMFS issued the first BiOp, discussed above, in November 2008, it issued the second BiOp in April 2009, and the third BiOp in August 2010.  Consultation on the remaining pesticides is scheduled for completion by February 2012.

But the Washington Toxics case is just the tip of the litigation iceberg.  Other lawsuits have followed, including Center for Biological Diversity v.Johnson (filed 2002, stipulated injunction entered October 2006 requiring EPA to make effects determinations and enter consultation, as appropriate, on the impact of 66 pesticide active ingredients on California red-legged frogs and critical habitat), Center for Biological Diversity v. Johnson II (filed 2004, settlement agreement entered September 2005 requiring EPA to make effects determinations and consult, as appropriate, for effects of certain pesticides on Barton Springs Salamander), and Center for Biological Diversity v. EPA (filed 2007, settlement entered May 2010 requiring EPA to study the impacts of 66 pesticide active ingredients on one or more of 11 listed species in counties around the Sacramento-San Joaquin River Delta).

In January 2010, as part of its ongoing Pesticides Reduction Campaign, the Center for Biological Diversity filed a 60-day Notice of Intent to Sue to EPA for failing to consider the impacts of nearly 400 pesticides on more than 880 protected species across the country, and it recently filed suit in January 2011 seeking to compel EPA to make effects determinations and consult, as appropriate, on the impacts of over 300 pesticide active ingredients on 214 listed species.

The January 2011 lawsuit, in particular, appears to have precipitated the letter to CEQ, which states that the suit "would, by some estimates, require over 28,000 consultations [and result in] hundreds of new bi-ops."  The authors of the letter to CEQ argue that the proliferation of lawsuits underscores the immediate need for better intra-agency coordination, including coordination with DOJ, to ensure that consultations are conducted in a transparent fashion, with the opportunity for agency and public comment, and that they are based on the best scientific and commercial data available.
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EPA Ordered to Consult with NMFS Regarding Water Quality Exemptions for Salmon Farms

Posted on May 16, 2010 by Robert Horton

Southern Resident Killer Whale BreachingOn April 28, 2010, the U.S. District Court for the Western District of Washington granted a motion for summary judgment filed by Wild Fish Conservancy, holding that EPA and NMFS failed to use the best scientific and commercial data available in their informal consultation regarding EPA's approval of water-quality standards that exempted salmon farms from various state water quality standards.  Wild Fish Conservancy v. U.S.E.P.A., No. C08-0156, 2010 WL 1734850 (W.D. Wash April 28, 2010).

Specifically, the court held that when EPA and NMFS engaged in informal consultation over EPA's approval of the disputed water quality standards, they should have considered the recent recovery plans for Puget Sound Chinook salmon (2007) and for the Southern Resident Killer Whales (2008) (PDF).  Both recovery plans expressly stated that they were developed based on the best scientific data available regarding each species.  The letter that NMFS issued concurring in EPA's not-likely-to-adversely-affect determination referenced three earlier studies prepared by NMFS and one prepared by the Washington State Department of Natural Resources, but not the more recent recovery plans.  Indeed, the court found that the administrative record was devoid of any mention of the two recovery plans.

Ultimately, the court ordered EPA and NMFS to reconsider whether formal consultation is required taking into account the best available science.

Chinook (King) Salmon Catch and ReleaseThe challenge stems from Washington State's adoption of water-quality standards in 1995.  The regulation exempted "marine finfish rearing facilities and their associated discharges" from "authority and purpose standards," "marine sediment-quality standards," "sediment impact zone maximum criteria," and "sediment impact zone standards."  Wild Fish Conservancy v. U.S.E.P.A.,  2010 WL 1734850 at *2.  Wild Fish Conservancy is concerned about these exemptions because fish farming operations can result in inadvertent releases of non-native salmon into the wild, spread of disease and parasites into native populations, and adverse water quality and sea-bottom impacts due to use of antibiotics and detritus from farming operations.  Impacts to wild salmon can, in turn, adversely impact killer whales, which prey on native salmon.

Under the Clean Water Act, EPA is required to review and approve or reject the 1995 state standards.  But EPA failed to take action for over a decade.  In 2007, the Wild Fish Conservancy issued a notice of intent to bring suit under the Clean Water Act to compel EPA to take action on the 1995 regulations.  This prompted EPA to consult with NMFS.  EPA determined that formal consultation was not required because the new regulations were not likely to adversely affect the Chinook or Southern Resident Killer Whales.

NMFS concurred, primarily based on three studies it performed specifically relating to the impacts of mariculture on the Puget Sound.  Those studies concluded that fish farms in the Puget Sound did not pose a significant problem for wild salmon or the food web because of "unique grading and tidal attributes," rare use of antibiotics, "naturally reduced salinity levels," and "farm siting [that] involves locations with fast currents or relatively great depth that distribute wastes over large areas where they may be incorporated into the food web while maintaining aerobic surfical sea bottom sediments."  Id. at *3-4.

The court found it significant, however, that the 2007 Chinook recovery plan indicates that fish farms likely pose a threat to salmon in the Puget Sound.  Id. at 4.   And while the 2008 killer whale recovery plan indicates that problems posed by fish farms in the Puget Sound have been largely ameliorated, and that the risks of transmission of sea lice from salmon farms to wild salmon remains uncertain, it nevertheless indicates that sea lice from fish farms in British Columbia were correlated with a decline of wild pink salmon populations.

It is too soon to tell if EPA will appeal the court's judgment, or whether it will re-engage in informal or formal consultation with NMFS, this time careful to take into account the recovery plans and any other recent scientific information.  Wild Fish Conservancy's lawsuit includes Clean Water Act claims, which appear not to have been adjudicated.  Thus, the legal battle is likely to continue for some time before the issues are resolved.
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Conservation Groups Urge Administration to Adopt New Definition of "Adverse Modification of Critical Habitat"

Posted on March 11, 2010 by Robert Horton

On March 10, 2010, the Center for Biological Diversity submitted a letter (PDF) on behalf of 50 conservation groups encouraging the Secretaries of the Department of the Interior and the Department of Commerce to adopt a radical new definition of “adverse modification of critical habitat.”  The proposed definition differs in two ways from the current regulatory definition; one uncontroversial and benign, while the other is likely to be controversial and far-reaching.

Currently, “adverse modification” is defined by regulation as “a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species.”  The groups would have “adverse modification of critical habitat” be defined as “a direct or indirect alteration that appreciably diminishes the value of any portion of any area of designated critical habitat for either the survival or recovery of a listed species,” with “appreciably diminishes” defined “as any action that would destroy or degrade any primary constituent element such that the habitat would be, measurably or perceptibly, of less value to the species.”  As explained below, the change to “either . . . or” would be benign; but the proposed addition of “any portion of any area” could dramatically alter the way the Services administer Section 7 of the ESA.

The change from “both the survival and recovery” to “either the survival or recovery” is benign, and likely to be uncontroversial because the Fish and Wildlife Service and National Marine Fisheries Service (the Services) have not been applying the current regulatory definition since late 2004, after the 9th Circuit held that it is invalid in Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004).  In the wake of that opinion, the Fish and Wildlife Service issued guidance (PDF) in December 2004 directing the regions not to use the regulatory definition of “destruction or adverse modification,” but to rely on an analytic framework based on the language of the ESA itself, which requires that critical habitat be designated to achieve the twin goals of survival and conservation (i.e., recovery) of listed species.  Thus, under current practice, the Services will find "adverse modification" if the impacts of a proposed action on a species' designated critical habitat would appreciably diminish the value of the habitat for either the survival or the recovery of the species.

In contrast, the proposed addition of “any portion of any area” represents a substantial change insofar as it could require the Services to find adverse modification whenever any action carried out, funded, or authorized by a federal agency would have an adverse impact on designated critical habitat.  This is the case because actions within the geographic area designated as critical habitat will -- more often than not -- appreciably diminish some “portion” of designated critical habitat.  For instance, certain species of trees are a primary constituent element of habitat for certain listed birds.  If an action with a federal nexus were to result in the destruction of one such tree in designated critical habitat, that would constitute an alteration that would appreciably diminish a “portion” of the bird’s designated critical habitat.

According to the letter, the addition of “any portion of any area” is needed “to avoid piecemeal destruction of critical habitat by precluding the argument that destruction of any particular area will not diminish the value of critical habitat as a whole.”  While no one reasonably could dispute that the Services have an obligation under the ESA to avoid “death by a thousand cuts,” the proposed definition could be interpreted to go well beyond preventing such an outcome, and would require an incidental take statement for every action with a federal nexus that would have any adverse effect on critical habitat.
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