The U.S. Fish & Wildlife Service adopted a final regulation on December 18, 2020, to establish a process and the criteria for excluding areas from critical habitat designations under the Endangered Species Act. The FWS adopted the new rule to provide clarity on the exclusion process in light of agency experience and current practices, and
Marc Bruner
Sacramento Superior Court Rules That Insects Are Not Eligible for Listing Under the California Endangered Species Act
In a widely watched case, the Sacramento Superior Court court ruled that insects are not eligible for listing under the California Endangered Species Act. Almond Alliance of California v. California Department of Fish and Wildlife, Sacramento Superior Court No. 34-2019-80003216 (Nov. 13, 2020).
CESA defines “endangered species” as a “native species or subspecies of…
New Regulations Narrow Reach of Clean Water Act
The U.S. Environmental Protection Agency and the Army Corps of Engineers have jointly issued new regulations to redefine what types of water bodies are covered by the Clean Water Act. Dubbed the “Navigable Waters Protection Rule,” the new regulations are the culmination of the Trump administration’s efforts to undo the broad interpretation of federal jurisdiction…
Regulation Finalizes Repeal of Obama-Era Clean Water Rule
A new final regulation issued on September 12, 2019 by the Environmental Protection Agency and the Army Corps of Engineers repealed the Obama administration’s 2015 “Clean Water Rule,” but did little to clear up longstanding confusion over the scope of federal authority and jurisdiction under the Clean Water Act. The current regulation simply repeals…
Court Decision Compounds Confusion Over Scope of Clean Water Act Jurisdiction
A decision by the U.S. District Court for the Southern District of Georgia issued on August 21, 2019, highlights the continuing confusion over the definition of “waters of the United States” under the Clean Water Act. The decision declared the Obama administration’s 2015 “Clean Water Rule” to be an impermissible construction of the statutory language…
Federal Agencies Issue Major Changes to Endangered Species Act Regulations
The U.S. Fish and Wildlife Service and National Marine Fisheries Service has issued a set of three new final rules that substantially revise regulations implementing the Endangered Species Act. The new rules change the criteria and procedures for (1) establishing protections for “threatened” species; (2) the listing and delisting of species and the designation of…
EPA Proposes Narrowing of Water Quality Certification Authority Under Clean Water Act
The Environmental Protection Agency has issued a lengthy proposed rule clarifying the substantive and procedural requirements for water quality certifications under Section 401 of the Clean Water Act. EPA Administrator Andrew Wheeler announced that the changes are “intended to increase the predictability and timeliness of Section 401 certification by clarifying timeframes for certification, the scope…
EPA Delays Applicability of Clean Water Rule While Challenges to Rule Proceed in District Courts
As reported in our prior Update, in a decision issued on January 22, the U.S. Supreme Court ruled in National Association of Manufacturers v. Department of Defense, 138 S. Ct. 617, that challenges to the Obama administration’s 2015 Clean Water Rule must be brought in federal district courts, rather than directly in the federal courts of appeals. The Court’s decision will likely prolong the ongoing litigation over the validity of the Rule.
Shortly after the Court’s decision, the Trump administration delayed the Rule’s applicability date for two years while it works on rulemakings to rescind and replace the Rule.
Continue Reading EPA Delays Applicability of Clean Water Rule While Challenges to Rule Proceed in District Courts
Ninth Circuit Upholds Biological Opinion for Silver State South Solar Project in Nevada
In Defenders of Wildlife v. Zinke, the Ninth Circuit upheld the Biological Opinion prepared by the U.S. Fish & Wildlife Service to assess the impacts on the threatened desert tortoise from the Silver State South solar project in southern Nevada. 856 F.3d 1248 (9th Cir. 2017). A key takeaway from the decision is the substantial deference that the courts give to the scientific judgments of the FWS, especially in the face of scientific uncertainty.
The Biological Opinion
The principal issue in the case was that the project, which required approval by the Bureau of Land Management of a right-of-way over federal land, would narrow the corridor for the movement of the desert tortoise through the Ivanpah Valley in southern Nevada, although the project and the affected corridor were located outside of the species’ designated critical habitat. The Biological Opinion recognized that the project’s impact on the “connectivity” of the tortoise’s movement through the Valley was uncertain in light of the available data. But it found that the corridor provided for the species’ movement was likely to be sufficiently wide and it included a monitoring program that would be used to develop conservation measures to identify and address any negative impacts if they did occur.
In accordance with the procedures for “formal consultation” under the Endangered Species Act, the Biological Opinion made a “no jeopardy” finding, which determined that the project would not jeopardize the continued existence of the tortoise. The Biological Opinion further concluded that formal consultation was not required to assess the potential modifications to the critical habitat for the tortoise, and instead relied on the more summary process of “informal consultation” to find that the project was not likely to affect this habitat.
Based on the Biological Opinion, in 2014 the BLM approved the federal right-of-way for the project.
The Ninth Circuit’s Decision
In upholding the Biological Opinion, the Ninth Circuit first rejected the plaintiff’s claim that the FWS did not adequately specify the applicable mitigation measures to support the “no jeopardy” finding. The court reasoned that nothing in the ESA required firm, binding mitigation to address negative effects that are uncertain to occur. The court explained that “our precedents do not require mitigation measures to be identified or guaranteed when the mitigation measures themselves may be unnecessary.”
The court further explained that, while a Biological Opinion must use the best scientific data that is available, the court was required to defer to the FWS in the face of scientific uncertainty. As the court cautioned, “it is not our job to task the FWS with filling the gaps in the scientific evidence” and “we must respect the agency’s judgment.” The court quoted the district court’s finding that “the FWS cannot be expected to respond to data that is not yet available to surmise potential mitigation actions that are not needed under the agency’s current interpretation of the data.”
Continue Reading Ninth Circuit Upholds Biological Opinion for Silver State South Solar Project in Nevada
CEQA YEAR IN REVIEW 2016
A Summary Of Published Appellate Opinions Under The California Environmental Quality Act
In 2016, the California appellate courts issued published opinions in 21 CEQA cases. In several of those opinions, including a ground-breaking decision by the California Supreme Court, the courts grappled with limits on the scope of required environmental review for a subsequent project…