FWS Decides Not to List Joshua Tree and Other Species Under the ESA

Yucca brevifolia

On August 15, 2019, the U.S. Fish and Wildlife Service (FWS) published a series of notices in the Federal Register announcing the agency’s 12-month and 90-day findings on petitions to list a number of species under the Endangered Species Act (ESA).  Most prominently, the FWS declined to list two species commonly known as the Joshua tree (Yucca brevifolia and Yucca jaegeriana).  These decisions came on the heels of the agency’s publication of proposals to, among other things, change the way these types of species listing decisions are made.  (Our earlier reporting on that topic is here.)

The FWS’ decision not to list the Joshua tree occurred under the current ESA regulations, not the newly proposed ones.  An environmental non-profit organization, Wild Earth Guardians, petitioned the FWS in September 2015 to list the Joshua tree as threatened and, if applicable, designate critical habitat for the species.  FWS conducted an initial 90-day review of the petition, determining that the petition presented substantial scientific or commercial information indicating that listing might be warranted.  FWS then undertook a more detailed 12-month review of the status of the Joshua tree.

In its 12-month finding following its species status review, the FWS noted that the primary stressors to the two species of Joshua tree include wildfire, invasive plants, the effects of climate change, and habitat loss.  The FWS concluded that while these stressors are affecting individual Joshua trees, there was no evidence the trees are experiencing the stressors at a population-level or species-level scale.  The FWS concluded that the Joshua tree is not in danger of extinction or likely to become so within the foreseeable future, citing, among other things, (1) the long-lived nature of the species, (2) the large ranges and distributions of the species, and (3) the fact that Joshua trees mostly occur on Federal lands.

Concurrently with its 12-month finding on the Joshua tree, FWS also made negative 12-month findings on petitions to list three species of mussels (Cyclonaias aurea, Cyclonaias houstonensis, and Alasmidonta varicosa), the tricolored blackbird (Agelaius tricolor), the yellow-banded bumble bee (Bombus terricola), the Arapahoe snowfly (Arsapnia arapahoe), and the seaside alder (Alnus maritima).  In a separate notice, the FWS also made positive 90-day findings on petitions to list the lake sturgeon (Acipenser fulvescens) as endangered or threatened and to reclassify the Gila topminnow (Poeciliopsis occidentalis occidentalis) from endangered to threatened, along with a negative 90-day finding on a petition to list the Siskiyou Mountains salamander (Plethodon stormi).  FWS will now conduct additional review on the lake sturgeon and the Gila topminnow, and has asked the public to provide any new scientific or commercial data or other information concerning the statuses of, or threats to, those species.

ESA Regulatory Reform Package Crosses the Finish Line

More than a year after the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, Services) published proposals to revise several Endangered Species Act (ESA) implementing regulations, the agencies have announced that the final versions of the rules are ready for publication in the Federal Register.

On July 25, 2018, USFWS published a proposal to remove that agency’s blanket prohibition on “take” of species listed as threatened (hereafter, the Blanket 4(d) Rule) and to require species-specific rules addressing take.  The same day, USFWS and NMFS published proposals to revise regulations governing species listings, delistings, and designation of critical habitat (listing rules), and regulations governing interagency consultations under ESA section 7 (consultation regulations).

The Services received tens of thousands of comments on the proposed regulatory revisions, and the proposed revisions have been under review with the Office of Information and Regulatory Affairs (OIRA) pursuant to Executive Order (EO) 12866  since December 2018. On August 2, 2019, OIRA completed its EO 12866 review of USFWS’ revision to the Blanket 4(d) Rule, and the final rule was released to be published in the Federal Register.  On August 9, OIRA completed its EO 12866 review of the Services’ revisions to their listing rules and consultation regulations.

The ESA regulatory reform package arguably represents the most significant change in ESA implementation in recent memory. The final rules have been submitted to the Federal Register, but no publication date has been given.  Additional updates on this topic will appear here, when available.

USFWS Moves Towards Including Qualitative Criteria in All Species Recovery Plans

 

The Palos Verde blue butterfly is one of the species affected by the proposed Recovery Plan revisions. (Jane Hendron/USFWS) 

The U.S. Fish and Wildlife Service (USFWS) is systematically revising species recovery plans issued under the Endangered Species Act (ESA).  On August 6, 2019, USFWS published three notices of availability announcing public comment periods on its draft revisions to 70 recovery plans covering 121 species across the United States. 

 

Recovery Plans are intended to guide and coordinate conservation efforts for listed species by recommending research and management actions.  ESA section 4(f) requires each recovery plan to incorporate “objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of this section, that the species be removed from the list.”  16 U.S.C. § 4(f)(1)(B)(ii).  The Department of the Interior has established an Agency Priority Performance Goal of 100 percent of all USFWS recovery plans having quantitative criteria for identifying when a species has recovered by September 30, 2019.  As of June 2019, 70 percent of a total of 567 recovery plans contain qualitative criteria indicating when downlisting or delisting is warranted.  USFWS indicated that it is unlikely to meet its goal by the fast-approaching deadline “due to the size and complexity of the task, statutory requirements to provide opportunity for the public to review and comment, and extended clearance process associated with Federal Register notices.”  However, USFWS continues to issue quantitative criteria updates at a brisk pace, and Nossaman will continue to track these efforts.  Our prior reporting on these efforts can be found here and here.

Settlement Eliminates 1,500 Acres of Designated Dusky Gopher Frog Critical Habitat

The U.S. Fish and Wildlife Service (Service) and a group of landowners recently settled long-running litigation regarding the Service’s designation of approximately 1,500 acres of private land as critical habitat for the dusky gopher frog (Rana sevosa).  The Service designated the private land in Louisiana as critical habitat in 2012.  Weyerhaeuser Co. and local landowners sued the Service, arguing that designation of the private land where the frog could not currently survive was overreach.

Western Carolina University photo/ John A. Tupy

The Supreme Court heard oral argument in the case on October 1, 2018.  The central issue in the case was whether an area that is not currently habitable by a species can be “critical habitat” for that species.  The Service argued that an area that is not currently habitable may nevertheless be “critical habitat” if it can be made habitable through reasonable efforts.

In its November 27, 2018 decision, the Court held that for an area to be designated “critical habitat” it must be “habitat” of the species.  Because the U.S. Court of Appeals for the Fifth Circuit Court concluded that “critical habitat” need not be limited to areas that are currently habitat, it did not give separate consideration to the meaning of the term “habitat.”  For this reason, the Court remanded to the Court of Appeals to consider the meaning of “habitat” in the first instance.  The Court also remanded the matter for the Court of Appeals to consider whether the Service’s assessment of the costs and benefits of designation was flawed in a way that rendered the resulting decision not to exclude the land arbitrary, capricious, or an abuse of discretion.

Prior to resolution of these questions on remand, the parties agreed to a consent decree that removed the private land from the species’ critical habitat designation, while preserving the remainder of the designated habitat.

In the Supreme Court proceedings, Nossaman represented the Energy and Wildlife Action Coalition and the San Luis & Delta-Mendota Water Authority, Coalition for a Sustainable Delta, and Western Growers Association as amici curiae in support of the landowners.

FWS Moves To Add Quantitative Measures To Recovery Plans

In its newly-released proposed recovery plan for the Desert pupfish (Cyprinodon macularius), the U.S. Fish and Wildlife Service (“Service”) has put into action its internal plan to add quantitative criteria to recovery plans.  The pupfish recovery plan, originally adopted in 1993, contained only qualitative criteria when adopted.  In its proposed revisions to the pupfish’s recovery plan, the Service adds quantitative criteria for whether the pupfish should be considered for delisting or when it has “recovered,” including the number of established populations that would make the species eligible for delisting, as well as the new requirement that a Tier 2 population of the species must persist for at least 20 years.  This is one of the first of the approximately 182 recovery plans that the Service anticipates updating and revising pursuant to the Interior Department’s “priority performance goals,” which commits the Service to revising all Endangered Species Act (“ESA”) recovery plans to include quantitative criteria by September 2019.

ESA recovery plans are often described by the Service as “non-regulatory guidance documents that identify, organize and prioritize recovery actions, set measurable recovery objectives, and include time and cost estimates.”  The Service’s push to add quantitative criteria to recovery plans is intended to address the often lacking criteria for when a species has recovered and is therefore eligible to be removed from the list of Endangered and Threatened Species.  At present, the majority of ESA recovery plans establish qualitative criteria which would allow a species to be downlisted from endangered to threatened, but do not establish delisting criteria.

In addition to the pupfish, the Service has issued proposed revised recovery plans for the Delhi sands flower-loving fly (Rhaphiomidas terminates abdominalis) and the Florida salt marsh vole (Microtus pennsylvanicus dukecampbelli), among others.  For many of these species, the new recovery/delisting criteria will likely be irrelevant, as the species continue to decline in population and remain far from any sort of recovery.  However, this move does address a notable deficiency in the existing ESA recovery plans and will be an important one for species whose populations have rebounded since listing.

Environmental Groups Seek Protection for Mountain Lions in Southern California

The Center for Biological Diversity and Mountain Lion Foundation submitted a petition to the California Fish and Game Commission (the “Commission”) to list mountain lions (Puma concolor) in southern and central California as threatened or endangered pursuant to the California Endangered Species Act.  The petition identifies habitat loss and fragmentation, due to roads and development, as significant threats to the survival of the local populations.

The petition acknowledges that “there is no reliable estimate of mountain lion abundance in California,” but includes estimates for several populations within the evolutionarily significant unit the petition describes.  The boundary of the proposed evolutionarily significant unit encompasses the area south of I-80 in northern California and west of I-5, including the Central Coast and much of the Central Valley, and all of southern California south of I-15, including portions of San Bernardino and Kern Counties and all of Imperial, Los Angeles, Orange, Riverside, and San Diego Counties.

Continue Reading

Fish and Game Commission Adds Four Bumble Bees to Candidate List

On June 12, 2019, the California Fish and Game Commission (Commission) voted 3-1 that listing four subspecies of bumble bee may be warranted under the California Endangered Species Act (CESA).​  The decision was made after the Xerces Society, Center for Food Safety, and Defenders of Wildlife filed a petition to list the Crotch bumble bee (Bombus crotchii), Franklin’s bumble bee (Bombus franklini), Suckley cuckoo bumble bee (Bombus suckleyi), and western bumble bee (Bombus occidentalis occidentalis) as endangered species under CESA.

Western Bumble Bee

Presently, no insects are listed as threatened or endangered under CESA.  Both the California Office of Administrative Law and the California Office of the Attorney General have previously taken the position that insects cannot be listed under CESA.  CESA defines candidate, threatened, and endangered species as “native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant.”  The list does not include insects.  Counsel for the Commission indicated that because the California Fish and Game Code defines fish as “a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals,” when the Legislature enacted CESA rather than include insects among the families of species that could be listed, it intended to incorporate bees, butterflies, beetles, and other insects via the definition of fish.

Nossaman is representing a statewide coalition of farming interests in the proceedings that opposed candidacy for the four bumble bee subspecies.

 

FWS Proposes Listing “Madtom” and “Waterdog”

Carolina madtom (Noturus furiosus)

The Carolina madtom (Noturus furiosus), a poisonous catfish.

On May 22, 2019, the U.S. Fish and Wildlife Service (FWS) announced a proposal to list two intriguing North Carolina aquatic species under the Endangered Species Act (ESA). The FWS was spurred to act in part by a 2010 petition and subsequent litigation from environmental organizations to list over 400 aquatic species found in the southeastern United States. The two species the agency deems as needing protection in this proposed rule are the Carolina madtom (Noturus furiosus), a poisonous catfish, and the Neuse River waterdog (Necturus lewisi), a freshwater salamander.

The Carolina madtom is a medium-sized bottom-dwelling freshwater catfish that the FWS describes as “the most strongly armed of the North American catfishes with stinging spines containing a potent poison in their pectoral fins.” According to the proposed rule, the species faces myriad threats, including declining water quality, fragmentation of riparian and instream habitats, and an increase in invasive predators. In order to address these threats, the FWS proposes listing the Carolina madtom as endangered under the ESA and designating approximately 257 river miles in North Carolina as critical habitat for the madtom.

The Neuse River waterdog is a slightly larger than average salamander that can grow up to 11 inches long. Native to the Tar-Pamlico and Neuse River basins in North Carolina, the Neuse River waterdog is a sight and scent feeder that ingests its prey whole, sometimes vomiting up and re-swallowing larger items. The FWS takes a slightly different tack with this non-migratory amphibian, proposing to list it as a threatened species under the ESA with an accompanying rule under section 4(d) of the ESA. FWS also proposes to designate approximately 738 river miles as critical habitat for the salamander.

In its notice announcing the proposed listing of the Carolina madtom and the Neuse River waterdog, the FWS asks for public comments concerning a range of issues, from the species’ biology and range, to what measures are necessary and advisable for the conservation of the species, to specific issues with the proposed critical habitat designations. The notice states that FWS will accept comments on the proposed rules until July 22, 2019.

New Executive Order Heralds Reorientation of State’s Species Protection and Water Management Policies

On April 29, 2019, Governor Newsom issued Executive Order N-10-19 (EO) directing the California Natural Resources Agency, the California Environmental Protection Agency, the California Department of Food and Agriculture, in consultation with the Department of Finance (collectively, the “agencies”), to prepare a 21st century water resilience portfolio to meet the needs of California’s communities, economy and environment in the face of water supply uncertainty, climate change and the state’s growing population.  The EO’s sweeping directive requires the agencies to reassess the 2016 California Water Action Plan priorities and develop regionally- and resource- integrated solutions to achieve the Executive’s goals.

Among other programmatic developments, the EO formally sets in motion the redirection of the State’s policies and actions relating to the protection of the Delta smelt (Hypomesus transpacificus) and other special status species.  In particular, the EO directs state agencies to assess the modernization of the Bay Delta water conveyance system with a single tunnel, rather than the previously proposed twin tunnel system.  In the days following the issuance of the EO, the California Department of Water Resources withdrew its approvals related to the twin tunnel system in order to commence environmental review and planning for the smaller conveyance system ordered by Governor Newsom.

LexBlog