Yuba County Water Agency Files Federal Lawsuit Challenging New BiOp on Yuba River

An earlier post on this blog reported that Yuba County Water Agency ("YCWA") had sent a 60-day notice of intent to sue to several federal agencies regarding their issuance and adoption of a biological opinion significantly affecting the future operations of Daguerre Point and Englebright Dams on the Yuba River.  Today YCWA made good on its threat by filing suit in federal district court.  The suit alleges there are numerous legal and scientific flaws in the recently issued BiOp and the process that developed it.  YCWA named the U.S. Army Corps of Engineers ("Corps") and NOAA Fisheries, formerly the National Marine Fisheries Service ("NMFS"), as the main defendants.   

NMFS issued the challenged BiOp in February of 2012. In that BiOp, NMFS concluded that the proposed operations of Englebright and Daguerre Dams would jeopardize several ESA-listed fish species and adversely modify their critical habitat. Consequently, to comply with the Endangered Species Act ("ESA"), the BiOp imposed requirements known in ESA parlance as reasonable and prudent alternatives ("RPA"), ostensibly to offset the jeopardizing effects of the action. The RPA was extensive.  YCWA has estimated that the cost of implementing the RPA could be as high as $1 billion. 

The remedies sought by YCWA in the lawsuit include a declaration that the BiOp is illegal and an injunction prohibiting NMFS and the Corps from implementing the BiOp and its RPA.  YCWA issued a press release explaining its reasons for filing this suit.  That and other documents related to the lawsuit can be viewed by following these links:

Press Release

FAQ

Complaint

For additional information regarding this post, please contact Hanspeter Walter or the KMTG attorney with whom you normally consult.

Pacific Legal Foundation Files Petition To De-List Killer Whale

In a petition to de-list filed today, attorneys from the Pacific Legal Foundation assert that the 2005 listing of the Southern Resident killer whale distinct population segment (“DPS”) as endangered under the Endangered Species Act (“ESA”) is illegal. The petition, filed on behalf of a non-profit organization and two San Joaquin Valley farms, petitions the Department of Commerce and the National Oceanic and Atmospheric Administration to de-list the Southern Resident killer whale DPS as endangered. The Southern Resident killer whale DPS was listed as endangered in 2005 and is the only population of killer whale that is listed under the ESA.

The principal argument asserted in the petition to de-list is that the Southern Resident killer whale DPS is a DPS of a subspecies, and the listing of a DPS of a subspecies is not authorized by the ESA. The petition asserts that because the ESA only authorizes the listing of a species, subspecies, and DPSs of species, the listing of a DPS of a subspecies is not authorized.

In addition, the petition argues that the National Marine Fisheries Service (“NMFS”) should de-list the Southern Resident DPS because “the subspecies designation on which it is founded is without scientific basis.” The petition asserts that NMFS’s designation of a North Pacific resident subspecies is not supported by genetic data, and that many of the differences between populations of killer whales can be explained as learned behaviors or responses to varying environmental conditions, rather than genetic differences.

Two of the petitioners are farms located in the San Joaquin Valley, who suffered severe water supply cutbacks in 2009, “in part due to the protections afforded the killer whale under the ESA.” The Southern Resident DPS was one of the species considered in a 2009 Biological Opinion issued by NMFS, which concluded that the ongoing operations of the State Water Project (“SWP”) and the federal Central Valley Project (“CVP”) would jeopardize the continued existence of several species, including the Southern Resident killer whale. That Biological Opinion, in part, resulted in severe water supply cutbacks to the farmers that rely on water from the SWP and CVP. The petition identifies “the delisting of the killer whale [as] one necessary step in preventing further catastrophic water cutbacks.”

The 2009 Biological Opinion was found to be arbitrary and capricious by a federal district court and was remanded back to NMFS. See Consolidated Salmonid Cases, 791 F. Supp. 2d 802 (E.D. Cal. 2011). That district court decision is now the subject of multiple appeals before the Ninth Circuit Court of Appeal. (Ninth Circuit Case Nos. 12-15144, 12-15289, 12-15290, 12-15291, 12-15293, and 12-15296.)

For additional information regarding the petition to de-list the killer whale, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult.  Additional information regarding the listing of Southern Resident DPS is available here.

Related Story:
Court Finds 2009 Salmonid Biological Opinion Arbitrary and Capricious and Remands to National Marine Fisheries Services

Fish & Wildlife Service Finds Bay-Delta Longfin Smelt Warrant Protection Under The Endangered Species Act

The U.S. Fish and Wildlife Service (Service) recently announced a 12-month finding on a petition to list the San Francisco Bay-Delta population of longfin smelt as endangered or threatened under the Endangered Species Act (ESA), finding that the Delta population of longfin smelt warranted ESA protection. The Service’s April 2, 2012, Federal Register notice of its 12-month finding is available here.

The Bay-Delta longfin smelt is a small fish, averaging approximately four inches in length, which is found in the San Francisco Bay-Delta, including Suisun Marsh and San Pablo Bay. The population of Bay-Delta longfin smelt has declined significantly in recent years. The Service’s 12-month finding identified a variety of threats to the Bay-Delta longfin smelt population, including habitat modification and the introduction of non-native species.

The Service found that listing of the Bay-Delta longfin smelt under the ESA is warranted but listing is currently precluded by higher priority actions. The Service added the Bay-Delta longfin smelt to its candidate species list, under which its status will be reviewed annually. Candidate species do not receive protection under the ESA, so the 12-month finding will not impose any new requirements or restrictions to protect the longfin smelt. However, the longfin smelt species is listed as a threatened species under the California Endangered Species Act, and is thus protected under state law. The Service stated that is will develop a proposed rule to list the the Bay-Delta longfin smelt under the ESA as its priorites allow. Any future proposal to add longfin smelt to the federal list of threatened or endangered species would be subject to public review and comment.

For more information regarding this matter, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult.


Related Stories:

Congressional ESA Oversight Hearing Materials Available Online
Congressional Committee Will Hold Oversight Hearing On Endangered Species Act Litigation

Congressional ESA Oversight Hearing Materials Available Online

As we recently reported, the House Natural Resources Committee conducted a full committee oversight hearing today, December 6, 2011, on the Endangered Species Act (“ESA”), specifically looking at the impacts of ESA litigation on the economy and species recovery.

In a release issued by the Committee, Chairman Doc Hastings said:

The purpose of the ESA is to recover endangered species – yet this is where the current law is failing – and failing badly. Of the species listed under the ESA in the past 38 years, only 20 have been declared recovered. That’s a 1 percent recovery rate. I firmly believe that we can do better. In my opinion, one of the greatest obstacles to the success of the ESA is the way in which it has become a tool for excessive litigation. Instead of focusing on recovering endangered species, there are groups that use the ESA as a way to bring lawsuits against the government and block job-creating projects. By strengthening and updating the Endangered Species Act, improvements can be made so it’s no longer abused through lawsuits and instead can remain focused on fulfilling its true and original goal of species recovery.

The Committee heard testimony from eight witnesses, listed below with their affiliations and links to their written testimony:

• Dan Ashe, U.S. Fish and Wildlife Service (testimony)
• Eric Schwaab, National Oceanic and Atmospheric Administration (testimony)
• Karen Budd-Falen, Budd-Falen Law Offices (testimony)
• Doug Miller, Public Utility District #2 of Pacific County (testimony)
• Kieran Suckling, Center for Biological Diversity (testimony)
• Jay Tuchton, WildEarth Guardians (testimony)
• John Leshy, UC-Hastings College of Law (testimony)
• Brandon Middleton, Pacific Legal Foundation (testimony)

A video of the hearing may be viewed here.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Related stories and media coverage:

• Congressional Committee Will Hold Oversight Hearing On Endangered Species Act Litigation
• The Endangered Species Act: Reviewing the Nexus of Science and Policy
• Court Denies "Fall X2" Motions and Finds Agency Bad Faith
• Court Finds 2009 Salmonid Biological Opinion Arbitrary and Capricious and Remands to National Marine Fisheries Services
• House panel probes workings of ESA

Congressional Committee Will Hold Oversight Hearing On Endangered Species Act Litigation

On Tuesday, December 6, at 10:00 am EST, the House Natural Resources Committee will hold a full committee oversight hearing on the Endangered Species Act (“ESA”), specifically looking at the impacts of ESA litigation on the economy and species recovery.  The oversight hearing, entitled “The Endangered Species Act:  How Litigation is Costing Jobs and Impeding True Recovery Efforts,” promises to be the first of many hearings that the Committee will hold to examine the efficacy of the ESA and to consider how the Act could be improved.

In a release issued by the Committee, Chairman Doc Hastings said:

It has been over two decades since the ESA was last reauthorized and it’s the responsibility of Congress to undertake a thoughtful analysis of the law to see what improvements could be made to ensure that it works for both species and people. The goal of the ESA is to conserve key domestic species, yet it’s being used by special interest groups to file lawsuits and drain resources away from real recovery efforts. This hearing will specifically look at the impacts of ESA litigation on jobs, our economy and species recovery.

The hearing is open to the public and will be broadcast by live video stream.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Related stories:

• The Endangered Species Act: Reviewing the Nexus of Science and Policy
• Court Denies "Fall X2" Motions and Finds Agency Bad Faith
• Court Finds 2009 Salmonid Biological Opinion Arbitrary and Capricious and Remands to National Marine Fisheries Services

Eastern District Orders Interim Remedies to Protect ESA-Listed Species

On July 26, 2011, Senior Judge Lawrence K. Karlton of California's Eastern District Federal Court issued a remedy order in an Endangered Species Act case.  In the case, South Yuba River Citizens League and Friends of the River v. National Marine Fisheries Service et al., environmental groups successfully proved their claim that a biological opinion issued by the National Marine Fisheries Service to the U.S. Army Corps of Engineers for operation of Englebright and Daguerre dams on the Yuba River was arbitrary and capricious.  The court required the agency to issue a legally sufficient opinion by December 12, 2011.  The environmental plaintiffs then filed a motion seeking additional physical protections for three ESA-protected species during the interim period before completion of the new opinion.  The court granted the motion in part and denied it in part.  Among the interim remedies ordered by the court were that the federal agencies prepare studies, make physical improvements, and conduct routine inspections of the water facilities so as to avoid jeopardizing the species.  The court's opinion can be found here.

If you have any questions concerning this topic, please contact Hanspeter Walter from our office, or the KMTG attorney with whom you normally consult.