On October 24, 2016, the Ninth Circuit Court of Appeals upheld the National Marine Fisheries Service’s (“NMFS”) decision to list certain subspecies of the Pacific bearded seal as threatened under the Endangered Species Act (“ESA”), concluding that NMFS had not acted arbitrarily by relying on climate change projections to determine that the seal is likely to become endangered in the foreseeable future. After being petitioned by the Center for Biological Diversity (“CBD”), NMFS had concluded in 2012 that the species were likely to become endangered by 2095. The Alaska Oil and Gas Association, the State of Alaska and North Slope Borough (collectively, “Plaintiffs”) challenged the listing in federal district court in Alaska, arguing that NMFS improperly relied on speculative climate change projections beyond 2050 to make its determination. The District Court had ruled for the Plaintiffs, concluding that NMFS’s reliance on long-term climate projections was inappropriate due to their volatility.
Federal Agencies Revise Endangered Species Act Listing Petition Process
On September 27, 2016, the United States Fish and Wildlife Service and the National Marine Fisheries Service (collectively, “the Services”) published a final rule finalizing changes to the regulations concerning listing and de-listing petitions under the Endangered Species Act (“ESA”). The revisions clarify and enhance the procedures by which the Services evaluate these petitions under section 4(b)(3) of the ESA. The Services initially proposed revisions to the petitions process in May 2015, but narrowed the revisions in a re-proposal issued in April 2016. The rule becomes effective October 27, 2016.
FWS Announces Work Plan for ESA Listing and Critical Habitat Decisions Through 2023
The U.S. Fish and Wildlife Service (FWS) has released a National Listing Workplan outlining its planned approach to address a backlog of Endangered Species Act listing petitions and critical habitat decisions for species over the next seven years. The Workplan includes 30 candidate species that FWS previously determined warrant ESA protection, as well as 320 other species based on third party listing petitions, and 11 species FWS has determined to evaluate as discretionary status reviews.
EPA Foregoes ESA Consultation on Final Cadmium Water Criteria, Says Consultation More Appropriate During State Adoption
In its response to comments calling for a Section 7 consultation under the Endangered Species Act (“ESA”) for its recently revised Cadmium Water Criteria, EPA determined that the appropriate time for ESA consultation is during the state adoption process. Several groups, including the National Marine Fisheries Service (“NMFS”), the Center for Biological Diversity, and the California State Water Resources Control Board all submitted public comments on the proposed criteria changes recommending ESA consultation. The groups argued that due to the frequent adoption of the federal criteria by states, EPA should consult with NMFS in order to insure species protection. The groups further argued that deferring consultation until the state adoption process resulted in a “piecemeal approach” that leaves EPA’s adoption process “legally vulnerable.”
FWS and NMFS Joint Habitat Protection Rules and Policy Changes
The U.S. Fish and Wildlife Service and the National Marine Fisheries Service have finalized two joint rule modifications and one joint policy change regarding the Services’ interpretations of “critical habitat” under the Endangered Species Act.
US Fish and Wildlife Service Proposes Revised Methodology for Prioritizing Status Reviews, Announces Findings on 17 Petitions
The U.S. Fish and Wildlife Service (FWS) recently announced a draft methodology for prioritizing species status reviews and 12-month findings for species listings under the Endangered Species Act (ESA). The proposed revisions are meant to aid FWS in addressing the backlog of over 500 unresolved status reviews, and focus resources on the highest-priority status reviews. FWS will classify species into “priority bins” as follows:
Final 4(d) Rule for Northern Long-Eared Bats Provides Needed Certainty, Additional Requirements for Wind Facilities
On January 14, 2016, the Fish and Wildlife Service finalized a rule exempting certain types of “take” of northern long-eared bats from the requirement to obtain an incidental take permit, pursuant to Section 4(d) of the Endangered Species Act. In the final rule, the Service has made all incidental (as opposed to purposeful) take exempt from the permitting requirement unless it is caused by tree removal (a) that occurs within a 0.25 mile buffer around known occupied northern long-eared bat hibernacula or (b) that cuts or destroys known occupied maternity roost trees, or any other trees within a 150-foot (45-m) radius around the maternity roost tree, during the pup season (June 1 through July 31). The obligation to obtain an incidental take permit for tree removal in the vicinity of occupied habitat only applies in an area designated as the “white nose syndrome buffer zone,” the area of the country in which the bats have been affected by the incurable disease white nose syndrome (“WNS”). As with the provisional 4(d) rule released last April, all incidental take outside of the WNS buffer zone is exempt.
EPA Revises Rule Governing State Water Quality Standards Review and Approval Process
On August 21, 2015, EPA issued a final rule revising its regulations governing the development, review and approval of state water quality standards (“WQS”) (40 CFR Part 131). The revisions were prompted by requests from the states for increased clarity in the existing rule, as well as the need for greater flexibility. The rule includes changes that expand EPA’s authority to review state WQS in several ways.
Florida v. Georgia – The Buck Stops Here
The tri-state water wars between Georgia, Florida, and Alabama are far from over. In fact, they have now been escalated. On October 1, Florida filed a complaint in the United States Supreme Court requesting that the Court equitably apportion the waters of the Apalachicola-Chattahoochee-Flint (“ACF”) River Basin between Florida and Georgia. Florida argues that Georgia has permitted withdrawals of both surface and groundwater that are allegedly adversely impacting the Apalachicola Region’s ecosystem and economy. Florida cites declines in its fisheries and in particular claims that reduced flows impact oyster fisheries. As support for its complaint, Florida alleges impacts to ecosystems, threatened and endangered species, recreation and Florida’s economy. Georgia has yet to respond, but the state will likely raise issues related to conservation measures implemented by Georgia, Florida’s abandonment of its appeal of endangered species consultations between the U.S. Army Corps of Engineers and U.S. Fish and Wildlife Service, Florida’s own over-fishing of the oyster fisheries, and salinity issues created by Florida’s insistence upon Sikes Cut, a navigation channel through St. George Island.