9th Circuit Vacates Biological Opinion for the Ruby Pipeline Project

On October 22, 2012, the Ninth Circuit Court of Appeals held that the U.S. Fish and Wildlife Service (Service) abused its discretion when it issued a biological opinion (BiOp) and incidental take statement for the Ruby Pipeline Project, and ordered the Service to prepare a revised BiOp.  Center for Biological Diversity v. U.S. Bureau of Land Management, No. 10-72356 (9th Cir. Oct. 22, 2012) (pdf). 

Specifically, the court held that the Service's "no jeopardy" and "no adverse modification" to critical habitat determinations relied on protective measures that are not specifically enforceable by the Service, and the BiOp failed to account for the impacts on listed species of withdrawing 337.8 million gallons of groundwater from 64 wells along the pipeline's right-of-way.  Because the Bureau of Land Management's (BLM's) record of decision and grant of right-of-way for the project relied on the flawed BiOp, the court ordered that BLM's record of decision be set aside as well.

The Ruby Pipeline is a 42-inch diameter natural gas pipeline that spans 678 miles from Wyoming to Oregon, crossing over 1000 waters, including 209 rivers and streams that support federally endangered and threatened fish species.  The Service determined that the project would adversely affect nine listed fish species and five areas of designated critical habitat, thus, formal consultation with the Service was required under section 7 of the Endangered Species Act (ESA).

In the court's view, the main issue presented was whether, under the ESA, the Service could rely on measures designed to contribute to the recovery of the affected species if the Service could not enforce those measures under the ESA.  In the course of the consultation, the Service provided Ruby with an "ESA Mitigation and Conservation Action Plan Proposal" (CAP) and requested that it be included in the final biological assessment.  However, FERC, the federal consulting agency for the project, objected to including the CAP in the project description.

Ultimately, Ruby and the Service entered into an agreement under which Ruby would implement or fund, in whole or in part, the mitigation measures in the CAP, and both FERC and BLM made implementation of the CAP measures enforceable conditions of their respective project approvals.  The Service then considered the Conservation Action Plan measures as background "cumulative effects" that were "reasonably certain to occur" in reaching is "no jeopardy" and "no adverse effect" determinations in the BiOp.  However, the Service did not incorporate the measures in the terms and conditions of the incidental take permit, so only FERC or BLM, but not the Service, could enforce the CAP measures.

The Ninth Circuit held that this is unlawful for two reasons.  First, by not incorporating the measures in the Conservation Action Plan as part of the project description, those measures could not be enforced by the Service, failure to implement them would not trigger the duty to re-initiate formal section 7 consultation and possibly invalidate the incidental take statement, and it would evade the potential for ESA citizen suits to enforce the measures.  Although the measures could be enforced by FERC or BLM under other statutes and regulatory schemes, the court held that "Congress did not contemplate leaving the federal government's protection of endangered and threatened species to mechanisms other than those specified by the ESA, the statute designed to accomplish that protection."  (Slip Op. at 12735.)  In short, the Service could not rely on the CAP measures in the BiOp because those measures fail to "ensure" that the federal action would not jeopardize the continued existence of the listed species or adversely modify their designated critical habitat.

Second, the  court held that the Service miscategorized the CAP measures as "cumulative effects."  Instead, it held that the CAP measures should have been included as part of the project because they are "unequivocally interrelated" with the FERC authorization since Ruby was required to implement them only after FERC issued its approval and all legal challenges to it had been resolved.  Thus, the court set aside the BiOp and incidental take statement because the Service's reliance on the CAP measures as "cumulative effects" was arbitrary and capricious.

The court also held that the BiOp failed to consider whether the withdrawal of 337.8 million gallons of groundwater from 64 wells along the right-of-way during construction may adversely affect listed species or adversely modify critical habitat.  The court rejected the defendants' argument that the groundwater withdrawals at many different locations along the 678-mile right-of-way would have a de minimis effect on surface water flows because it found evidence in the record that indicated the groundwater withdrawals may, in some instances, have more than a de minimis effect on stream flows and, by extension, the listed fish.

Finally, the court rejected plaintiffs arguments that the BiOp improperly relied on a "dry-ditch" construction method to calculate take levels, and that the BiOp should not have authorized take of "all eggs and fry" of threatened Lahontan cutthroat trout (Oncorhynchus clarkii henshawi) near 18 water crossings.  Significantly, the court held that the Service did not have to expressly explain why numeric take limits were impracticable because it is "self-evident" that it would be impracticable to set numeric take limits for the very large number and minute size of fish eggs and fry.

Ninth Circuit Holds that Bureau of Reclamation is Not Required to Consult Annually on Its Operation of Glen Canyon Dam

On August 13, 2012, the United States Court of Appeals for the Ninth Circuit laid to rest litigation that threatened to profoundly affect water and power supplies for 25 million people throughout the arid Southwest.

In Grand Canyon Trust v. U.S. Bureau of Reclamation (pdf), the Ninth Circuit held that the U.S. Bureau of Reclamation (Reclamation) is not required to consult with the U.S. Fish and Wildlife Service (Service) under section 7 of the Endangered Species Act (ESA) every year when it prepares an annual operating plan for the Glen Canyon Dam.

The court held that even if operation of the dam may affect the endangered humpback chub (Gila cypha)
or adversely modify its critical habitat in the Colorado River below the dam, Reclamation is not required to consult because, by statute, it is not at liberty to deviate from certain long-term operating criteria each time it formulates a new annual operating plan.  The court observed that "to allow ESA challenge on an annual basis for each [annual operating plan] would be unduly cumbersome and unproductive in addressing the substance of environmental issues."

Of more concern to the states that depend on water from the Colorado River, if Reclamation were required to consult every year, it could have largely transferred the operation of the dam to the Fish and Wildlife Service, which could have imposed different operational constraints on the dam from year-to-year for the benefit of the humpback chub, regardless of its effects on long-term water and power supply.

The court reasoned that under section 7 of the ESA, a federal agency is only required to consult with the Service if it takes a discretionary action that could inure to the benefit of a listed species.  The Court determined that Reclamation is restricted by statute to describe its operation of the Glen Canyon Dam in accordance with the long-term operating criteria in each annual operating plan.  In other words, Reclamation is not at liberty to deviate from, or revise the long-term operating criteria pursuant to which it must operate the timing, rate, and volume of water it releases every time it prepares an annual operating plan.  Therefore, in preparing an annual plan, Reclamation lacks the discretion to deviate from the long-term operating criteria in a way that could benefit the humpback chub.  No discretion; no duty to consult.

As the court concluded, "by challenging the [annual operating plans] and urging each one requires separate ESA consultation, the Trust is continuously challenging Reclamation's implementation of [the long-term operating criteria] on an annual basis . . . ."  In the court's view, the true target of the Trust's ESA citizen suit is Reclamation's choice of long-term operating criteria.  But, as the court observed,  Reclamation fully complied with ESA consultation requirements before it selected those long-term criteria, and issuance of each annual operating plan according to those criteria does not continuously re-open the criteria to challenge under the ESA.

Of course, the decision ends only one battle in a larger war.  In 2011, the Service issued a new biological opinion and incidental take statement for Reclamation's proposed 10-year continued operation of the dam pursuant to the long-term operating criteria as well as certain "High Flow Experimental Releases" designed to benefit the humpback chub.  Given the history of litigation, the 2011 biological opinion and incidental take statement are not likely to escape judicial scrutiny.

FEMA Settles Citizen Suit; Agrees to Consult on Floodplain Program's Impacts on Listed Fish in the Delta

On March 8, 2012, the U.S. District Court for the Eastern District of California entered judgment in Coalition for a Sustainable Delta and Kern County Water Agency v. Federal Emergency Management Agency, et al., No 1:09-cv-02024 (E.D. Cal.) based on a settlement agreement in which FEMA agreed to request consultation with the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS) under section 7 of the Endangered Species Act regarding the impacts of its implementation of the National Flood Insurance Program (NFIP) on threatened and endangered species in the Sacramento-San Joaquin River Delta (Delta).

Under the NFIP, FEMA makes subsidized flood insurance available to property owners in communities that elect to participate in the NFIP by adopting floodplain management plans intended to reduce future flood risks. The citizen suit was premised on the claim that FEMA's implementation of certain discretionary aspects of the NFIP encourages placement of fill in the floodplain and construction and maintenance of levees to remove land from the floodplain, thus destroying habitat and impairing ecosystem services that listed salmon (Oncorhynchus tshawytscha), steelhead (Oncorhynchus mykiss), and delta smelt (Hypomesus transpacificus) rely upon in the Delta.

Floodplains provide side channel habitat for listed salmon and other ecosystem services, such as contributing to the productivity of various components of the food web, including phytoplankton, copepods, and other organisms.  Destruction of this habitat has been particularly harmful to the federally listed Sacramento River winter-run Chinook salmon, Central Valley spring-run Chinook salmon, Central Valley steelhead, and delta smelt.

In the Delta, the flood zone also encompasses seasonal and perennial tidal wetlands.  According to the United States Geological Survey, more than 95 percent of those Delta wetlands have been destroyed and new development threatens the remaining tidal wetlands.  Indeed, one of the major focuses of the Bay Delta Conservation Plan (BDCP) is the restoration of tens of thousands of acres of tidal wetlands that have previously been removed from the flood zone via fill and levee construction.

The settlement comes on the heals of FEMA's largely unsuccessful motion for partial summary judgment, previously blogged about here.  It also represents the latest in a string of court orders and settlements in similar lawsuits that have been filed against FEMA in Florida, Washington, Oregon, and New Mexico in the past several years.  In each instance, FEMA either lost the lawsuit and was instructed to consult by a federal court or settled the lawsuit prior to a decision and agreed to engage in consultation.

FEMA's Administration of the National Flood Insurance Program Not Exempt from Section 7 Consultation

On August 19, 2011, the U.S. District Court for the Eastern District of California denied in part and granted in part FEMA's motion for partial summary judgment (PDF) in the latest in a series of lawsuits filed against FEMA for failing to consult under Section 7 of the Endangered Species Act (ESA) regarding the impacts of its administration of the National Flood Insurance Program (NFIP) on listed species that depend upon floodplains.

In their first claim for relief in Coalition for a Sustainable Delta v. Federal Emergency Management Agency, No. 09-2024 (E.D. Cal.), the plaintiffs allege that FEMA's administration of the NFIP in participating communities in and upstream of the Sacramento-San Joaquin Delta (Delta) may affect three listed salmonid species and the delta smelt.  According to plaintiffs, FEMA's administration of the NFIP encourages development in and adjacent to the 100-year floodplain -- an area that includes designated critical habitat for listed salmonids, and that provides water quality benefits that may affect the salmon and smelt.  In addition, plaintiffs allege that FEMA has the discretion to modify its ongoing implementation of the NFIP in the Delta communities to benefit the listed species.  Thus, FEMA is required to enter consultation with the National Marine Fisheries Service and the U.S. Fish and Wildlife Service (Services).

Among other things, FEMA argued that it does not retain discretion to modify its implementation of its floodplain mapping under the NFIP, and that issuing Letters of Map Revision based on placement of fill (LOMR-Fs) cannot have any impact on listed species.

The court rejected these arguments, holding that FEMA's own alteration of how it implements the NFIP in the Puget Sound region in Washington State for the benefit of listed salmonids demonstrates FEMA's ongoing discretionary involvement and control, and holding that other evidence in the record shows there is a question of material fact whether issuing LOMR-Fs may affect listed species or their critical habitat in the Delta by encouraging development that alters the regulatory, 100-year floodplain.  Thus, the court denied, in part, FEMA's motion for partial summary judgment.

The court, however, found the reasoning in National Wildlife Federation v. FEMA, 345 F. Supp. 2d 1151 (W.D. Wash. 2004) persuasive on the question whether FEMA has the discretion to withhold or condition issuance of flood insurance policies to applicants in participating communities that have already met certain minimum eligibility requirements.  Thus, the court granted FEMA's motion in this limited respect, holding that by statute, FEMA must issue flood insurance to persons in eligible participating communities.

Nevertheless, the court's rejection of FEMA's other legal arguments leaves open the possibility that FEMA will be required to consult with the Services with respect to its implementation of the NFIP in the Delta communities.

Ninth Circuit Holds that Forest Service "Approval" of a Notice of Intent to Conduct Suction Dredge Gold Mining Does Not Trigger a Duty to Consult

Diver suction dredgingOn April 7, 2011, the U.S. Court of Appeals for the Ninth Circuit held that a United States Forest Service (USFS) District Ranger's decision that proposed recreational suction dredge mining in the Klamath National Forest may proceed according to the miners' Notices of Intent (NOIs) without a Plan of Operations is not an "agency action," and therefore consultation is not required under section 7 of the Endangered Species Act.  Karuk Tribe of California v. U.S. Forest Service, No. 05–16801, 2011 WL 1312564 (9th Cir. April 7, 2011) (PDF).

Specifically, the majority held that the District Ranger's decision not to require a Plan of Operation for the dredging "is an agency decision not to regulate legal private conduct.  In other words, the USFS's decision at issue results in agency inaction, not agency action."  Id. at *11. 

The Karuk Tribe presented evidence that the cumulative impact of recreational suction dredge mining to threatened Coho salmon and their critical habitat in the Klamath River "may affect" listed species by killing salmon and other fish eggs, killing food sources, destabilizing spawning substrate, and otherwise disturbing the salmon and their reproductive activities.  But the court's holding turned on the more fundamental question whether the District Ranger's determination that no Plan of Operations is required constitutes an "agency action."

The Tribe argued that the Ranger's decision is a decision to authorize the operations described in an NOI, therefore, consultation with the National Marine Fisheries Service is required under section 7. 

A majority of the three-judge panel disagreed, concluding instead that "the NOI process was designed to be 'a simple notification procedure' that would 'assist prospectors in determining whether their operations would or would not require the filing of an operating plan.'"  Id. at *6-7.  In other words, a decision not to require a Plan of Operations is not a "permit," as the Tribe contended.  Instead, the NOIs were agency inaction, not  "agency action" that could trigger a duty to consult under section 7.

The majority found it especially significant that under Organic Administration Act of 1897 and the General Mining Law of 1872, miners have a right to enter public lands to prospect and remove mineral deposits.  Under Forest Service regulations, a Plan of Operations for mining activities on national forest land is required only if the District Ranger determines that the mining is likely to cause significant disturbance of surface resources.  Under the Forest Service regulations, once an NOI is filed, the District Ranger is not required to respond at all unless he or she determines that the mining will likely cause a significant disturbance of surface resources.  Thus a Ranger's response to an NOI "is analogous to the NOI itself, a notice of the agency's review decision.  It is not a permit, and does not impose regulations on the private conduct as does a Plan [of Operations]."  Id. at *7.

In his dissenting opinion, Judge William A. Fletcher concluded that the Forest Service has taken affirmative agency action because "[t]he Forest Service makes an actual decision whether to allow suction dredging to proceed pursuant to an NOI."  Id. at *15.  In addition, Judge Fletcher concluded that the Forest Service exercised discretion in approving or disapproving the NOIs in three ways.  First, "the Forest Service exercised discretion in formulating criteria for the protection of critical habitat of listed coho salmon" that "governed the approval or denial of NOIs for suction dredge mining."  Id. at *23.  Second, the Forest Service exercised discretion in refusing to approve an NOI where it determined that the NOI provided insufficient protection of fish habitat and insufficient mitigation for the loose tailing piles left by the dredges.  Id. at *24.  And third, the Forest Service exercised discretion insofar as its employees applied different criteria for the protection of fish habitat in different districts of the Klamath National Forest.  Id.

The majority rejected these arguments, arguing that the Tribe failed to argue that the formulation of protective criteria was itself an agency action triggering a duty to consult under section 7 (id. at *3 n.6), and although the Forest Service exercised discretion in determining whether to require a Plan of Operations, the NOIs at issue were not "agency actions" but rather inactions (id. at *5 n.8).

It remains to be seen whether the Tribe will file a petition for rehearing or a petition for certiorari seeking to have the decision overturned.

 

 

Center for Biological Diversity to Challenge New Army Corps Levee Vegetation Clearing Policy

After Hurricane Katrina, the U.S. Army Corps of Engineers made major changes to its nationwide levee policies, including new standards in 2009 banning vegetation on or within 15 feet of levees. Earlier this year, the agency adopted a variance policy requiring trees and bushes to be removed by September 30 unless a new variance was granted, forcing levee owners and operators to scramble to meet the deadline.  According to a recent notice of intent to sue letter issued by the Center for Biological Diversity, this new variance deadline may be impossible to meet for many levee owners or operators, and therefore could lead to the removal of all levee vegetation regardless of whether or not environmental review and consultation with the federal wildlife agencies has been completed.

The Center for Biological Diversity's press release announces that levee vegetation provides important habitat to listed California's threatened and endangered species, and therefore the Corps is required to consult with the federal wildlife agencies pursuant to the Endangered Species Act before moving forward with the new policy.  Jeff Miller, a conservation advocate at the Center, is quoted as saying:

Levee safety can be achieved without a scorched-earth policy that will destroy habitat for struggling species like salmon, steelhead trout, and willow flycatchers.  The Corps has failed to consult with federal wildlife agencies about the impacts of vegetation-free zones on California’s endangered species. It’s left too little time for levee operators to get new variances.

A related, contentious issue is whether vegetation actually impairs levees, or whether some vegetation can actually help stabilize them.

Federal District Court Issues Key Findings and Conclusions in Bay-Delta Salmon Case

On May 18, 2010, the United States District Court for the Eastern District of California issued findings of fact and conclusions of law (PDF) regarding Plaintiffs’ request for a preliminary injunction in The Consolidated Salmonid Cases, No. 09-1053 (E.D. Cal. May 18, 2010).  The matter consists of seven consolidated actions that all challenge the June 2009 biological opinion, jeopardy and adverse modification determinations, and reasonable and prudent alternative (RPA) for continued operation of the Central Valley Project (CVP) and State Water Project (SWP) issued by the National Marine Fisheries Service (NMFS). The CVP and SWP provide water for approximately 25 million Californians.

Plaintiffs challenged the implementation of two components of the RPA developed by NMFS, RPA Actions IV.2.1 and IV.2.3. Action IV.2.1 imposes minimum San Joaquin River inflow requirements in conjunction with maximum permissible exports (i.e., a 4 to 1 ratio between inflow and exports) and is effective April 1 to May 31.  Action IV.2.3 limits Old and Middle river flows to no more negative than -2,500 to -5,000 cfs, depending on juvenile entrainment levels, and is effective January 1 to June 15 or until a temperature trigger is hit at Mossdale (a location on the San Joaquin River).

While the Court did not issue an order, it did indicate that the Plaintiffs had already succeeded on their National Environmental Policy Act claims and were likely to succeed on at least some of their Endangered Species Act claims.  Specifically, the Court determined that NMFS acted arbitrarily and capriciously in formulating Actions IV.2.1 and IV.2.3.  With respect to Action IV.2.1, the Court held that “the total absence of explanation for the exact flow limits chosen makes Action IV.2.1 arbitrary and capricious.” Findings & Conclusions at 43.  And the Court held that Action IV.2.3 “does not scale salvage [of fish entrained at CVP and SWP facilities] to population size, an undisputed failure to use the best available scientific methods, at least with respect to the winter-run and spring-run [Chinook salmon], for which population data is available.”  Findings & Conclusions at 119.  Furthermore, the Court determined that – in interpreting certain key scientific studies – NMFS drew conclusions that the authors of the studies themselves disclaimed.  Findings & Conclusions at 57-60 121-122.

The Court is holding a hearing to address the proposed injunction on May 19, 2010.  A motion for preliminary relief is pending in a related matter, The Delta Smelt Cases, No. 09-407, that consists of consolidated actions challenging the December 2008 biological opinion, jeopardy and adverse modification determinations, and RPA for continued operation of the CVP and SWP issued by the Fish and Wildlife Service.

Fifth Circuit Rejects Claim that Failure to Analyze Potential Future Phases of an Action as Interrelated Actions, Cumulative Effects, or Indirect Effects Violates the Endangered Species Act

The Court of Appeals for the Fifth Circuit rejected Endangered Species Act (“ESA”) challenges to the approval of a rail line serving a limestone quarry in Texas. The court upheld the determination by the Surface Transportation Board (“STB”) and the Fish and Wildlife Service (“Service”) to limit the effects analysis in the biological opinion to the impacts of the first phase of the multi-phase quarry project. The court concluded that the subsequent phases were not an interrleated action, a cumulative effect or an indirect effect of the approval of the rail line under the ESA.

In Medina County Environmental Action Association v. Surface Transportation Board, the STB granted an exemption allowing a railroad company to construct and operate a rail line and loading loop to service a proposed limestone quarry in Texas. The proposed rail line was part of “Phase One” in the development of a 1,760-acre tract. Phase One consisted of the proposed rail line and development of 640 acres as a quarry. There were no specific plans for further development, although it was indicated that the rest of the tract might be quarried in additional phases over the next 50 years, depending on market demand.

An environmental group challenged the exemption alleging that the STB and the Service failed to comply with their obligations under section 7 of the ESA because they did not assess the potential for jeopardy posed by the entire 1,760-acre tract on the endangered golden-cheeked warbler and listed karst invertebrates and only assessed the potential effects for Phase One. The plaintiff made three arguments: (1) the entire proposed development is an “interrelated action” to the proposed rail (2) the entire proposed development should have been evaluated as a cumulative effect of the proposed rail; (3) the entire proposed development is an indirect effect of the proposed rail. The court rejected all three claims.
 

The ESA section 7 regulations define an “interrelated action” as “part of a larger action and depend[ing] on the larger action for [its] justification” The court relied on the Service’s Consultation Handbook, which provides that a “but for” test should be used to determine whether an activity is interrelated with a proposed action. If the activity would not occur but for the proposed action, then it is interrelated. Here the question was whether but for the proposed rail line, the development of the subsequent phases of the quarry would occur. The environmental impact report had found that STB’s approval of the rail line was not required for any other action associated with the proposed quarry, and that the subsequent phases of the quarry could go forward with or without the proposed rail. Therefore, the court found that there was no “but for” causation and the subsequent phases of the quarry were not an interrelated action.

Cumulative effects are defined as “those effects of future State or private activities, not involving Federal activities, that are reasonably certain to occur within the action area of the Federal action subject to consultation.” The court focused on the term “reasonably certain to occur” in its analysis and explained that it was not reasonably certain that the subsequent phases of the quarry would be developed, and the long-term lease held on the property was not tantamount to a reasonable certainty.

Finally, the court rejected the environmental group’s argument that the proposed development of the entire tract should have been evaluated as an in “indirect effect” of the proposed rail line. Indirect effects are “those that are caused by the proposed action and are later in time, but still are reasonably certain to occur.” Again, the court explained that the development of the entire tract was not “reasonably certain to occur.”

Court Rejects Use of Habitat Surrogate In Everglades Project Biological Opinion

In the latest round of litigation over endangered species impacts of water management in Southern Florida, a district court invalidated an incidental take statement applicable to actions of the Corps of Engineers to restore the Everglades.  The decision in Miccosukee Tribe of Indians of Florida v. United States (PDF), is the latest in a line of decisions concluding that the Fish and Wildlife Service failed to provide a sufficient justification for the use habitat conditions in lieu of a numerical cap on incidental take.  The decision is an example of the willingness of the federal courts to undertake detailed review of biological opinions issued by the federal wildlife agencies.

In this case, the Miccosukee Tribe challenged the 2002 biological opinion and subsequent 2006 biological opinion (PDF) issued by the Fish and Wildlife Service regarding management actions by the Corps of Engineers to restore wildlife in the Everglades. The Tribe challenged the Amended Incidental Take Statement (PDF) to the 2006 biological opinion, specifically the Service’s use of ecological and habitat surrogates for a numerical limit on the incidental take of three listed species, the Cape Sable seaside sparrow, Everglade snail kite, and wood stork.  Federal courts have held that the Service has the burden of demonstrating that it is impractical to identify a numerical limit on incidental as the trigger for reconsultation under section 7 of the Endangered Species Act.

 Here the Service argued that natural fluctuations in the population of the Cape Sable seaside sparrow made the identification of a numerical take limit impractical.  The District Court for the Southern District of Florida rejected the Service’s argument stating the “fact that sparrow populations may decrease due in part to low nest success rates does not unequivocally support the conclusion that the variability of nest success rates makes it impractical to establish a numerical trigger for incidental take.” 

The court found the Amended Incidental Take Statement was valid as to the Everglade snail kite and the wood stork. 

Conservation Groups Urge Administration to Adopt New Definition of "Adverse Modification of Critical Habitat"

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.

The National Research Council Commences Hearings on the Delta

Pursuant to a request by Congress and the U.S. Department of the Interior, the National Research Council recently held a number of hearings in Davis, California on the current crisis in the Sacramento-San Joaquin Delta. These hearings took place over a four-day stretch, running from January 24 to January 28, frequently addressing a handful of different Delta related issues each day.

The National Research Council is an arm of the National Academy of Sciences, a private non-profit institution that was created in 1863 by President Lincoln.  The primary role of the National Research Council is to synthesize, analyze, and disseminate information in order to aid government decision making. 

The proposed end result of what the National Research Council has currently scheduled to be a 24 month process, is two reports. These reports are being drafted by 15 National Research Council committee members.  The first report, which is scheduled to come out in mid-March, will focus on two biological opinions regarding the continued operations of the State Water Project and the Central Valley Project - the December 2008 biological opinion by the U.S. Fish and Wildlife Service on the delta smelt and the June 2009 biological opinion by the National Marine Fisheries Service on three salmonid species, the North American green sturgeon and the Southern Resident killer whale.  Each of these biological opinions is currently the subject of federal litigation.

The second report, which is currently scheduled to come out in November 2011, will attempt to synthesize all of the scientific information related to the Delta and the federally protected species at issue (including native species such as the Delta smelt), identify gaps in the available science and factors contributing to the decline of the federally protected species, and future water-supply and delivery options that properly account for all of the various interests in the Delta.

Delta smelt biological opinion (PDF 8 MB)

Salmon biological opinion (PDF 12 MB)