Fish and Wildlife Service Proposes Denial of ESA Protections for Two Species

On Friday, September 29, 2017, the U.S. Fish & Wildlife Service (“Service”) announced its withdrawal of the proposed rule listing the Kenk’s amphipod (Stygobromus kenki), an aquatic crustacean, as an endangered species under the Endangered Species Act (“ESA”).  The Service originally proposed to list the amphipod, which occurs in the District of Columbia, Virginia, and Maryland, in September 2016 due to the impacts of water quality, water quantity, and other collateral impacts of urbanization near the species’ habitat.  In support of its decision to withdraw the proposed listing the Service documents the discovery of additional populations and increased protections afforded the species under the Fort A.P. Hill Integrated Natural Resources Management Plan.

The Service also published a proposed rule to remove the Deseret milkvetch (Astragalus desereticus) from the list of endangered and threatened plants on Monday, October 2, 2017.  The milkvetch, a plant species native to Utah, was listed as threatened in 1999.  The Service’s proposal to delist the milkvetch is based on a substantial increase in the population and new protections for the species since the 1999 listing.  Based on new surveys, population estimates have increased nearly 20-fold – even though the species only occurs in a single known population on approximately 300 acres of land in central Utah.  A Conservation Agreement, signed in 2006 between the State of Utah and the Service, reduces the threats to the species by providing for ongoing management on the majority of milkvetch occupied habitat.

U.S. Fish and Wildlife Service Lists Three New Species; National Marine Fisheries Services Lists Subspecies of Hector’s Dolphin

On September 20, 2017, the U.S. Fish and Wildlife Service (“USFWS”) listed three separate species under the Endangered Species Act (“ESA”).  USFWS listed the Sonoyta mud turtle (Kinosternon sonoriense) as endangered, and the ‘I’iwi (Drepanis coccinea) and pearl darter (Percina aurora) as threatened species under the ESA.  Despite listing all three species, the USFWS deferred designating critical habitat for the three species.  The three listing decisions, all of which were compelled by settlements that the USFWS entered into during the Obama administration, are summarized below.

  • The Sonoyta mud turtle is an isolated, native, endemic freshwater species found in southern Arizona and northern Sonora, Mexico.  The mud turtle depends on aquatic habitat with adjacent terrestrial habitat.  Of the five remaining known populations of the Sonoyta mud turtle, only one is known to occur in the United States in the pond and channels associated with Quitobaquito Springs in Organ Pipe Cactus National Monument, Arizona.  The USFWS final rule provides that loss of water supporting aquatic and riparian habitat is the primary threat to the turtle’s future viability.
  • The ‘I’iwi is a Hawaiian bird species, found primarily in closed canopy, montane wet or montane mesic forests.  The remaining populations of the ‘I’iwi are restricted to forests above approximately 3,937 feet in elevation on the island of Hawaii, east Maui, and Kauai.  The USFWS final rule identifies avian malaria as the primary driver of the ‘I’iwi’s decline.
  • The pearl darter is a small fish, historically found within the Pearl and Pascagoula River drainages in Mississippi and Louisiana.  Today, the pearl darter occurs in scattered sites within an approximately 415-mile area of the Pascagoula drainage, including the Pascagoula, Chickasawhay, Leaf, Chunky, and Bouie Rivers and Okatoma Creek and Black Creek.  According to the USFWS final rule, water quality degradation is the principle cause of the pearl darter’s decline.

Just a day earlier, on September 19, 2017, the National Marine Fisheries Service (“NMFS”) published its final rule listing the Maui dolphin (Cephalorhynchus hectori maui) as an endangered species and the South Island Hector’s dolphin (C. hectori hectori) as a threatened species under the ESA.  Both types of dolphin are subspecies of the Hector’s dolphin, which is among the world’s smallest dolphins and occurs only in the coastal waters of New Zealand.  Currently, the estimated total population of South Island Hector’s dolphin is between 11,923 to 18, 942 dolphins.  NMFS estimates that only 63 Maui dolphins older than one year old exist today.  According to NMFS’s recent species status review, bycatch – dolphins being accidentally caught when other species are being fished – is the primary factor in the dolphins’ decline.  Because neither dolphin occurs within areas under U.S. jurisdiction, NMFS did not designate critical habitat for either species.

Ninth Circuit Defers to U.S. Fish and Wildlife Service’s Distinct Population Segment Determination

On August 28, 2017, the U.S. Court of Appeals for the Ninth Circuit affirmed a district court decision upholding a U.S. Fish and Wildlife Service (“Service”) determination that the Sonoran Desert Area bald eagle does not constitute a distinct population segment (“DPS”) under the Endangered Species Act (“ESA”).  Ctr. for Biological Diversity v. Zinke, No. 14-17513, 2017 WL 3687443 (9th Cir. Aug. 28, 2017).  The court deferred to the Service’s interpretation of its DPS policy, holding that the Service reasonably applied the relevant factors and considered scientific evidence to support its decision.

The ESA makes reference to, but does not define, the term “distinct population segment.”  As a consequence, the Service has developed a DPS policy, which states that a population segment must be both discrete and significant.  The parties agreed that the desert eagle population was discrete, but disputed whether the population was significant.  Pursuant to the Service’s DPS policy, a determination regarding significance requires consideration of the following factors:

  1. Persistence of the DPS in an ecological setting unusual or unique for the taxon,
  2. Evidence that loss of the DPS would result in a significant gap in the range of a taxon,
  3. Evidence that the DPS represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range, or
  4. Evidence that the DPS differs markedly from other populations of the species in its genetic characteristics.

Plaintiffs challenged the Service’s determination with respect to the first two factors.

To begin with, the Service concluded that the proposed desert eagle DPS satisfied the first factor relating to persistence, but found that satisfaction of that factor alone did not necessarily compel a conclusion that the desert eagle population was significant.  Plaintiffs argued that this decision was improper because the Service has in the past always found significance when it found that one of the four factors was satisfied.  While the Service disputed this contention, the court’s decision did not turn on the Service’s prior practices.  Rather, the Ninth Circuit held as a matter of law that the Service’s DPS policy is open-ended, and provides the Service with the discretion to consider whether various characteristics of a proposed DPS are ecologically or biologically significant for a taxon as a whole.  The court’s decision makes it clear that where a population satisfies one significance factor, the Service is not compelled to make a finding that the proposed DPS is significant.

Furthermore, the Service found that, if the proposed desert eagle DPS was extirpated, this would not result in a significant gap in the range of the bald eagle taxon.  Plaintiffs argued that this conclusion was flawed because in a draft document prepared by the Service, the agency concluded that the desert eagle population constituted a “peripheral population.”  Plaintiffs further argued that, in multiple prior cases, the Service concluded that the loss of a peripheral population resulted in a gap in the range of a taxon.  The Ninth Circuit found this argument unpersuasive, reasoning that, while relevant, prior agency documents are not determinative.  The court explained that agencies may change course, and that the court’s role is “to review the change of course to ensure that it is based on new evidence or otherwise based on reasoned analysis.”  The court concluded that, despite not expressly discussing “peripheral populations” in its final decision, the substance of the Service’s analysis took into account the benefits of such populations.  Thus, the court found that it was reasonable for the Service to conclude, based on a lack of evidence of distinctive traits or genetic variations among the desert eagle population, that loss of the population would not have a negative effect on the bald eagle species as a whole.

Lastly, plaintiffs asserted that the Service failed to consider climate change when making its determination regarding the desert bald eagle.  Based on the record, the Ninth Circuit found this argument unpersuasive.

NMFS Issues Final Rule Designating Critical Habitat for the Atlantic Sturgeon

On August 17, 2017, the National Marine Fisheries Service (NMFS) issued a final rule designating critical habitat for the endangered New York Bight, Chesapeake Bay, Carolina, and South Atlantic Distinct Population Segments (DPSs) of Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus), and the threatened Gulf of Maine DPS of Atlantic sturgeon.  Collectively, the critical habitat designations total approximately 4,000 miles of aquatic habitat for the five DPSs.

Specific areas designated as critical habitat for the five DPSs are as follows:

  • Gulf of Maine DPS: approximately 244 kilometers (152 miles), including areas in the following rivers of Maine, New Hampshire, and Massachusetts: Penobscot, Kennebec, Androscoggin, Piscataqua, Cocheco, Salmon Falls, and Merrimack.
  • New York Bight DPS: approximately 547 kilometers (340 miles), including areas in the following rivers of Connecticut, Massachusetts, New York, New Jersey, Pennsylvania, and Delaware: Connecticut, Housatonic, Hudson, and Delaware.
  • Chesapeake Bay DPS: approximately 773 kilometers (480 miles), including areas in the following rivers and water bodies of Maryland, Virginia, and the District of Columbia: Potomac, Rappahannock, York, Pamunkey, Mattaponi, James, Nanticoke, and Marshyhope.
  • Carolina DPS: approximately 1,939 kilometers (1,205 miles), including areas in the following rivers and water bodies of North Carolina and South Carolina: Roanoke, Tar-Pamlico, Neuse, Cape Fear, Northeast Cape Fear, Waccamaw, Pee Dee, Black, Santee, North Santee, South Santee, Cooper, and Bull.
  • South Atlantic DPS: approximately 2,883 kilometers (1,791 miles), including areas in the following rivers of South Carolina, Georgia, and Florida: Edisto, Combahee-Salkehatchie, Savannah, Ogeechee, Altamaha, Ocmulgee, Oconee, Satilla, and St. Marys Rivers.

NMFS listed the five DPSs of Atlantic sturgeon under the Endangered Species Act in 2012. Four were listed as endangered (New York Bight DPS, Chesapeake Bay DPS, Carolina DPS and South Atlantic DPS) and one was listed as threatened (Gulf of Maine DPS).

The final rule takes effect on September 18, 2017.

Executive Order Aims to Streamline Environmental Permitting of Infrastructure Projects

In furtherance of the administration’s broad infrastructure initiative, President Trump on August 15 signed an executive order (EO) entitled “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects.”  The EO directs federal agencies to make coordinated, predictable, transparent, and timely decisions with the goal of completing all federal environmental reviews and authorization decisions for major infrastructure projects within two years.  “Infrastructure project” is defined by the EO to encompass surface transportation (including roadways, bridges, railroads, and transit), aviation , ports and navigational channels, water resources , energy production and generation (including from fossil, renewable, nuclear, and hydro sources), electricity transmission, broadband internet, pipelines, stormwater and sewer infrastructure, drinking water infrastructure, and other sectors as may be determined by the Federal Permitting Improvement Steering Council (FPISC).  A “major infrastructure project” is defined as one for which multiple authorizations by federal agencies are required to proceed with construction, the lead federal agency has determined that it will prepare an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA), and the project sponsor has identified the reasonable availability of funds sufficient to complete the project.

The EO emphasizes coordination between federal agencies on environmental reviews and permit decisions, as well as consistency and predictability in those processes, for both major and non-major infrastructure projects.  The EO also directs agencies to use “One Federal Decision,” in which each major infrastructure project will have a lead federal agency that navigates the project through the federal environmental review and authorization project; the Council for Environmental Quality (CEQ) and Office of Management and Budget (OMB), in consultation with the FPISC, are to develop the framework for implementing One Federal Decision.  The EO also directs the OMB to establish certain agency performance priority goals, guidance for establishing an agency accountability system, and other regulations, guidance, or directives as CEQ deems necessary to “enhance and modernize” the federal environmental review and authorization process.  A preliminary list of these CEQ actions is to be developed within 30 days of the EO.  Impacts of the EO on permitting and interagency consultations under the Endangered Species Act remain to be seen, but the EO has the potential to substantially alter the federal environmental permitting process for infrastructure projects.

National Marine Fisheries Service Declines to List Pacific Bluefin Tuna

On August 9, 2017, the National Marine Fisheries Service (NMFS) issued a 12-month finding on a petition to list the Pacific bluefin tuna (Thunnus orientalis) as an endangered or threatened species under the Endangered Species Act (ESA), concluding that listing at this time is not warranted.  NMFS determined that the species is not endangered throughout all or a significant portion of its range, and that it is not likely to become endangered in the foreseeable future.

NMFS’s 12-month finding follows the Center for Biological Diversity’s June 20, 2016 petition to list the Pacific bluefin tuna as threatened under the ESA.  NMFS evaluated 25 distinct threats, including overharvest, climate change, and water pollution, to the Pacific bluefin tuna and determined that, while the species’ population is near historical lows, it is estimated to include more than 1.6 million individuals with at least 143,000 adult males as of 2014.  Moreover, NMFS concluded that 2014 management changes addressed concerns about the risk of overfishing.

Federal Appeals Court Keeps Great Lakes Grey Wolves Listed As Threatened

On August 1, 2017, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision in Humane Society of the U.S. v. Zinke, Case No. 15-5041 (Aug. 1, 2017), affirming a district court decision that keeps the Western Great Lakes Distinct Population Segment (“DPS”) of Grey Wolves on the List of Endangered and Threatened Species.  Plaintiffs in the case allege that the Secretary of the Interior and U.S. Fish and Wildlife Service’s (collectively, “Service”) 2011 Final Rule (“Rule”) removing the DPS from the list of endangered and threatened species failed to consider two key impacts that the Rule would likely have.  Specifically, plaintiffs argued that the Service failed to “reasonably analyze or consider . . . the impacts of partial delisting and the historical range loss on the already-listed species . . . .”

Regional subspecies of gray wolf were listed as “endangered” under the Endangered Species Act (“ESA”) between 1966 and 1976. The Service later revised these listings to be a single listing for the gray wolf split between the Minnesota population, which had recovered enough to qualify as “threatened”, and the gray wolf in the remaining 47 states in which it occurred, which remained endangered.  In 2003, the Service again reclassified the gray wolf, splitting the listed populations into three DPS – the Eastern DPS, Western DPS, and Southwestern DPS – and downgrading the Eastern and Western DPS to “threatened” from “endangered.”  The 2003 reclassification was struck down by two separate court decisions finding that the Service had failed to meet the ESA’s requirements for such reclassifications, sparking successive attempts to delist the Great Lakes population by the Service, ultimately leading to this lawsuit.

The Service again reclassified populations of gray wolves in 2007, creating the Western Great Lakes DPS and removing it from the ESA’s protections. Within a year, the 2007 reclassification was reversed by a federal court. See Humane Soc’y of the U.S. v. Kempthorne, 579 F.Supp.2d 7, 9 (D.D.C. 2008).  The Service attempted to delist the Western Great Lakes DPS again in 2009 and was again rebuffed by a federal court.  Finally, the Service issued the Rule in 2011, which revised the boundaries of the existing Minnesota gray wolf population by creating the Western Great Lakes DPS, and then delisted that DPS.

Plaintiffs filed suit, challenging the Service’s action and alleging that the Service’s carve out of a DPS from a listed population for the sole purpose of delisting that DPS violated the ESA. Although the Court held that the Service is permitted to create a DPS for the sole purpose of removing it from the ESA’s protections, the Court found that such action is appropriate “only when the Service first makes the proper findings.”  Here, the Court found that the Service failed to make the proper findings in two material respects.  First, the Service failed to evaluate the impact to the species as a whole if the DPS were removed from the ESA’s protections.  Second, the Service failed to evaluate whether or not the remaining U.S. gray wolves constitute either a subspecies or a population segment.  The Service did, however, determine that the remaining gray wolf populations were not a “species” and proposed to delist them for that reason alone.  Among other issues with the Services analysis, the Court held that the Service failed to analyze the Western Great Lakes DPS’ candidacy for delisting within the context of the historical range of gray wolves.  Due to the particular history of this case and the seriousness of the Service’s missteps, the Court held that vacatur of the Rule rather than remand to the Service was appropriate.  This, for the time being, retains the Minnesota population’s listing status as threatened and the remaining gray wolf population listed as endangered.

USFWS Tentatively Supports ESA Reform Bills

On July 19, 2017, the House Committee on Natural Resources held a full committee legislative hearing on five bills that would amend portions of the Endangered Species Act (ESA).

  • H.R. 424 (Rep. Collin Peterson; D-MN) – This bill would require the Department of Interior to reissue the final rules relating to the listing of the gray wolf in the Western Great Lakes and Wyoming.
  • H.R. 717 (Rep. Pete Olsen; R-TX) – This bill would remove the 90-day and 12-month deadlines for making listing determinations and allow the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service to consider the economic effects that may occur as a result of a listing or designation of critical habitat.
  • H.R. 1274 (Rep. Dan Newhouse; R-WA) – This bill would require USFWS to more heavily coordinate with states impacted by a listing decision. It would also require USFWS to include all data submitted by state, local and tribal governments when reviewing species status and to automatically consider such information as the “best available scientific and commercial data.”
  • H.R. 2603 (Rep. Louie Gohmert; R-TX) – This bill would remove listings of non-native species.
  • H.R. 3131 (Rep. Bill Huizenga; R-MI) – This bill would amend the ESA’s attorney’s fees provision to require a party to prevail in order to recover fees and place a cap on those fees.

During the hearing, Greg Sheehan, USFWS acting Director, announced the administration’s support of ESA reform and a commitment to working more closely with the states. Sheehan spoke in favor of various portions of the bills but was careful to state that technical modifications to the bills would still be needed.  For example, Sheehan criticized the language in H.R. 1274 that would automatically characterize state, local, and tribal information as “the best scientific and commercial data available” as a significant departure from scientific integrity standards.  While these bills have a higher likelihood to advance, and possibly be passed, given the support of the acting USFWS Director, in the 115th Congress there have been a total of 34 ESA-related bills introduced and to date the Democrats have been successful in blocking all of those from advancing, calling into question whether or not these bills will suffer the same fate.

ESA Reform Update

Battle lines are being drawn in connection with ongoing efforts by lawmakers to reform the Endangered Species Act (“ESA”).  In a letter addressed to the leaders of both houses of Congress, the Senate Environmental and Public Works Committee and the House Committee on Natural Resources, more than 400 groups requested lawmakers to oppose any bill, rider, or other policy proposal that weakens protections for endangered species and habitat.  The letter’s signatories include non-governmental organizations based throughout the United States, as well as national non-profits Natural Resources Defense Council, the Humane Society, the Sierra Club, and the Union of Concerned Scientists.  The letter calls for continued funding for, and comprehensive implementation of, the ESA.

The letter follows on the heels of the Western Governor’s Association’s bipartisan recommendations for amending the ESA, which include statutory amendments authorizing the U.S. Fish and Wildlife Service and the National Marine Fisheries Services to, in certain circumstances, prioritize and defer action on listing petitions and amendments.  These proposed amendments are intended to encourage state-led conservation efforts.