Endangered Species Law & Policy

As explained in a previous posting, in November 2010, the U.S. Fish and Wildlife Service designated 187,157 square miles of land in, and sea ice adjacent to, Alaska as critical habitat for polar bear.

Shortly after the final rule was published in the Federal Register, the Alaska Oil and Gas Association (AOGA) sent a sixty-day notice of intent to sue (PDF) the Service, alleging that the designation violates the Endangered Species Act (ESA).

Making good on its notice, on March 1, 2011, AOGA filed a complaint (PDF) in federal court seeking to invalidate the designation, which the trade ...

On March 2, 2011, the U.S. Fish and Wildlife Service (Service) completed its formal review of the status of the eastern cougar (Felis concolor couguar) and concluded that the subspecies is extinct.  The existence of the subspecies, listed since 1973, has long been questioned.  Dr. Mark McCollough, the Service's lead scientist for subspecies, noted that the eastern cougar has likely been extinct since the 1930s.  Though sightings had been reported, the Service believes they are not of the eastern cougar.  Rather, the Service believes that the sightings were actually of South ...

On March 2, 2011, the United States Court of Appeals for the Fourth Circuit held that a biological opinion issued by the National Marine Fisheries Service ("Service") regarding the Environmental Protection Agency's ("EPA") reregistration of pesticides is immediately reviewable under the Administrative Procedure Act, reversing a lower court decision.  Dow Agrosciences LLC v. National Marine Fisheries Service, Case No. 09-1968 (pdf). 

The Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA") establishes specific requirements prior to EPA's registration ...

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 ...