Endangered Species Law & Policy

On February 25, the United States District Court for the Eastern District of California entered a stipulated order (pdf) establishing operational criteria for the Central Valley Project and State Water Project through June 30, 2011, in lieu of the Reasonable and Prudent Alternative prescribed by the U.S. Fish and Wildlife Service 2008 biological opinion (pdf) regarding the effects of the Water Projects on delta smelt.  The settlement that led to the order received widespread media attention, including this story by Reuters.  The memorandum decision of the court holding that ...

The U.S. Supreme Court has denied (pdf) two petitions that sought to have the Court resolve a Circuit split regarding the evaluation of economic impacts of critical habitat designations under the federal Endangered Species Act.  The Court’s action leaves in place two recent decisions by the United States Court of Appeals for the Ninth Circuit upholding the use of the so-called baseline methodology by the U.S. Fish and Wildlife Service ("Service").  Under the baseline methodology, the Service restricts the evaluation of economic impacts of a potential critical habitat ...

The Department of Fish and Game (DFG) is now accepting comments on a proposal to add northern and southern variants of the mountain yellow-legged frog to the endangered species list under the California Endangered Species Act ("CESA"). The proposal comes as a result of a petition by the Center for Biological Diversity submitted in 2010.  Comments received on the proposal by March 18, 2011 will be included in a status evaluation report that DFG plans to submit to the Fish and Game Commission ("Commission") addressing existing threats to the species and the effectiveness of current ...

The U.S. House of Representatives passed H.R. 1 (pdf), a spending bill, on February 19, 2011, that includes a rider to foreclose use of funds appropriated by Congress to implement Reasonable and Prudent Alternatives (RPAs) developed by the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) to accompany biological opinions and jeopardy determinations made by those agencies under the federal Endangered Species Act regarding the ongoing operation of the Central Valley Project and State Water Project in California.  The biological opinions ...

On February 11, 2011, the United States District Court for the District of New Mexico approved a stipulated settlement agreement (pdf) between the Federal Emergency Management Agency ("FEMA") and WildEarth Guardians, obligating FEMA to, among other things, request that the U.S. Fish & Wildlife Service ("Service") initiate formal consultation on the impacts of the National Flood Insurance Program (the "NFIP") in New Mexico.

The NFIP, which is administered by FEMA, enables property owners in participating communities to purchase flood insurance at a subsidized ...

The Fish and Wildlife Service (Service) recently announced  (pdf) a proposed rule to reclassify the wood bison (Bison bison athabascae) from endangered to threatened under the Endangered Species Act (ESA). After completing a 12-month status review, the Service found that threats still affect the wood bison, with the largest threat being the loss of habitat caused by agricultural development, the presence of diseased wood bison and cattle herds on habitat that could be restored with disease-free herds, and the commercial production of plains bison in historical wood bison ...

On February 10, 2011, EPA Region 9 issued an Advanced Notice of Proposed Rulemaking for Water Quality Challenges in the San Francisco Bay/Sacramento-San Joaquin Delta Estuary ("Advanced Notice") (pdf).  EPA is not proposing any specific Clean Water Act ("CWA") rulemaking at this time.  Instead, EPA proposes to assess "the effectiveness of current programs designed to protect water quality and aquatic species habitat in the San Francisco Bay / Sacramento-San Joaquin Delta in California . . . ."  Fact Sheet (pdf).  According to EPA Region 9 Administrator Jared ...

The Fish and Wildlife Service (Service) announced (PDF) that despite a finding (PDF) that sufficient scientific and commercial data exist to warrant protecting the Pacific walrus under the Endangered Species Act ("ESA"), an official rulemaking to propose that protection will be postponed because of the need to address other higher priority species.  Instead, the Service will review the walrus’ status as a candidate species annually.  The finding confirms claims made by the federal Marine Mammal Commission and a petition by the Center for Biological Diversity that the ...

On February 7, the Fish and Wildlife Service issued a press release announcing a new final rule designating critical habitat for the arroyo toad (Anaxyrus californicus).  The rule (pdf) designates about 98,366 acres of land as critical habitat ranging from portions of Santa Barbara County in the north to San Diego County in the south.  By comparison, the prior final rule, available here (pdf), designated about 11,695 acres of land as critical habitat.  The Service excluded approximately 11,697 acres of land subject to final habitat conservation plans, tribal lands ...

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.