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

Posted on August 22, 2011 by Robert Horton

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.

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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

Posted on April 11, 2011 by Robert Horton

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.

 

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

Posted on August 4, 2010 by Brad Kuhn

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.

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

Posted on May 18, 2010 by Paul Weiland

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.
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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

Posted on April 12, 2010 by Audrey Huang

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.”
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Court Rejects Use of Habitat Surrogate In Everglades Project Biological Opinion

Posted on March 24, 2010 by Robert Thornton

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. 

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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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The National Research Council Commences Hearings on the Delta

Posted on February 16, 2010 by Ben Rubin

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)

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