In a per curiam decision, the United States Court of Appeals for the D.C. Circuit dismissed the Center for Biological Diversity’s (CBD) challenge to the Fish and Wildlife Service’s (Service) process for assessing the status of species to inform regulatory decisions with respect to those species. That process, referred to as species status assessment (SSA), is akin to a biological risk assessment for the target species. It has been developed by the Service over the past several years and provides a more structured approach to assessing listing, delisting, uplisting, and ...
The U.S. Fish and Wildlife Service (Service) recently announced its finding that three salamander species do not warrant listing as endangered or threatened species under the Endangered Species Act (ESA). The Service’s announcement follows a court-approved settlement agreement in which the Service agreed to make a 12-month finding for the Shasta salamander (Hydromantes shastae), Samwel salamander (H. samweli), and Wintu salamander (H. wintu). The finding comes despite concerns from some environmental groups that a proposed project to raise the height of the Shasta Dam and ...
On April 19, 2018, the California Fish and Game Commission voted 4-0 to list the tricolored blackbird (Agelaius tricolor) as a threatened species. A statewide survey conducted in 2017 estimated the California population of the species to be over 175,000 birds. The species is broadly distributed in California, occurring in roughly 40 counties, though the bulk of the population resides in the Central Valley.
The Center for Biological Diversity petitioned for the emergency listing of the species in 2015, based on a dramatic decline in population estimates from 2008 to 2011 and again ...
On August 15, 2016, the U.S. Court of Appeals for the Ninth Circuit affirmed a lower court decision granting summary judgment to the Bureau of Land Management (BLM) and U.S. Fish and Wildlife Service (USFWS) on the issue of whether an incidental take statement is required for plant species. In Center for Biological Diversity v. Bureau of Land Management, No. 14-15836, 2016 U.S. App. LEXIS 14949, the Center for Biological Diversity (CBD) challenged BLM’s adoption of a Recreational Area Management Plan (Plan) for off-road vehicles in the Imperial Sand Dunes Special Recreation ...
On September 2, 2015, the California Supreme Court heard oral argument in a case involving fully protected species that may have important state-wide implications. (Center for Biological Diversity v. Department of Fish and Wildlife (Newhall Land and Farming Company), No. S217763.) The case involves challenges to the California Department of Fish and Wildlife’s (Department) environmental impact report (EIR) and approval of the Newhall Ranch project in Los Angeles County. The Supreme Court is reviewing three issues: (1) whether the California Environmental Quality Act ...
While a number of Endangered Species Act (ESA) reform bills continue to wind their way through Congress (see our May 6, 2015 post), yesterday, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) announced their own plan to "increase regulatory predictability, increase stakeholder engagement, and improve science and transparency" when acting on petitions to list, uplist, downlist, or delist a species, as well as petitions to revise critical habitat designations. Rather than revising the ESA itself, as some in Congress ...
In a letter to the President's Council on Environmental Quality (CEQ), 18 members of Congress urged the Obama Administration to "ensure that NMFS, EPA, the Department of the Interior, USDA, and DOJ work together" to strengthen the modeling and to use the best scientific and commercially available information to re-evaluate existing biological opinions (BiOps) and to inform forthcoming BiOps for EPA pesticide registrations.
The members of Congress claim that the existing BiOps, which prohibit the application of certain pesticides to cropland within certain buffer zones adjacent to streams, rivers, wetlands, and floodplain habitat to protect threatened and endangered salmon and steelhead, "will force family farmers out of business and devastate rural communities and trade throughout the districts we represent, while crippling our food production capacity for the foreseeable future." According to the authors, the BiOps issued to date expand existing buffer zones to such a great extent that "it would affect millions of acres in the Northwest and California, including a staggering 61 percent of farmland in Washington state and 55 percent in Oregon."
The 18 members of Congress argue that the consultation process between the National Marine Fisheries Service (NMFS) and EPA for the first of the pesticide BiOps (issued in November 2008) was flawed because it lacked transparency, consultation with the agricultural community, and the opportunity for public comment. More fundamentally, they argue that NMFS's consultation for all three of the existing BiOps ignored the best available scientific and commercial data on the prevalence of the pesticides in salmon spawning waterways.
The letter's authors cite a September 2008 letter from EPA's Director of Pesticide Programs to NMFS, which criticized the July 31, 2008 draft BiOp for failing to disclose NMFS's rationale for its determination that use of chlorpyrifos, diazinon, and malathion will jeopardize the continued existence of dozens of listed salmonids in California, Oregon, Washington, and Idaho. In the September 2008 letter, EPA also complained that it could not meaningfully discuss the proposed Reasonable and Prudent Alternative because the BiOp "fails to identify a level of exposure to these pesticides that would not result, in NMFS['s] opinion, in jeopardy to the species."
As explained in more detail below, the letter's authors are especially concerned that the administration orchestrate future interagency consultations as well as consultations with the agriculture industry and other stakeholders because EPA faces a host of other court-mandated deadlines to determine whether other pesticide registrations may affect listed species, and if so, to consult.
Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.
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