ESA blawg

FWS delists the Virginia Northern Flying Squirrel

08/26/2008

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73 Fed. Reg. 50226 (Tuesday, August 26, 2008)(DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; 50 CFR Part 17; WS–R5–ES–2008–0005; 92220–1113–0000–C6 RIN 1018–AT37; Endangered and Threatened Wildlife and Plants; Final Rule Removing the Virginia Northern Flying Squirrel (Glaucomys sabrinus fuscus) From the Federal List of Endangered and Threatened Wildlife)

According to FWS, delisting of the Virginia northern flying squirrel is appropriate because, in part, "Survey and monitoring efforts at 109 sites over the past 21 years have shown a relatively high degree of population stability, as evidenced by a high degree of persistence and successful reproduction over multiple generations throughout the historical range". These squirrels "glide in the air on the parachute created when they stretch all four legs and pull the loose folds of skin (patagia) between their fore and hind legs taut." See FWS information sheet, and photo from Wikipedia.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), hereby remove the Virginia northern flying squirrel (Glaucomys sabrinus fuscus), now more commonly known as the West Virginia northern flying squirrel (WVNFS), from the List of Threatened and Endangered Wildlife due to recovery. This action is based on a review of the best available scientific and commercial data, which indicate that the subspecies is no longer endangered or threatened with extinction, or likely to become so within the foreseeable future. Habitat regeneration and recovery actions have resulted in a reduction in the threats, which has led to: (1) A significant increase in the number of known WVNFS captures and distinct capture locations; (2) verification of multiplegeneration reproduction and persistence throughout the range; (3) proven WVNFS resiliency; and (4) substantial improvement and continued expansion of suitable habitat rangewide. DATES: This rule becomes effective September 25, 2008.

EXCERPT: In summary, all of the past, existing, or potential future threats to WVNFS, either alone or in combination, have either been eliminated or largely abated throughout all of its range. The major factor in listing the WVNFS was the loss of habitat due to the logging era at the turn of the 20th century. This threat has largely been abated as evidenced by the substantial recovery and continued improvement of the preferred habitat of the WVNFS, red spruce-northern hardwood forests. Therefore, we have determined that the WVNFS is not in danger of extinction or likely to become so throughout its range in the foreseeable future.

KEITHINKING:The delisting quickly proved newsworthy and controversial. According to Plenty Magazine, the delisting is another victory for timber harvesters, but according to West Virginia public radio interviews with local decisionmakers, the decision was apolitical.

Posted by Keith Rizzardi | 08/26/2008 8:47 PM | Florida | Permalink | Comments (0)

FWS reduces critical habitat for Bay checkerspot butterfly, designates critical habitat for San Diego thornmint

08/26/2008

Category Federal Register
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73 Fed. Reg. 50406 (Tuesday, August 26, 2008)(DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; 50 CFR Part 17; WS-R8-ES-2008-0034; 92210-1117-0000-B4 RIN 1018–AV24; Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Bay Checkerspot Butterfly (Euphydryas editha bayensis); Final rule.)

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are designating revised critical habitat for the Bay checkerspot butterfly (Euphydryas editha bayensis) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 18,293 acres (ac) (7,403 hectares (ha)) fall within the boundaries of the revised critical habitat designation for the Bay checkerspot butterfly. The revision to critical habitat is located in San Mateo and Santa Clara Counties, California. This final revised designation therefore constitutes a reduction of 1,453 ac (588 ha) from our 19,746 ac (7,990 ha) proposed revised designation of critical habitat for the Bay checkerspot butterfly published on August 22, 2007.

Peer reviewers were generally supportive of the analyses in the FWS critical habitat designations for the Bay checkerspot butterfly (above, photo from wikipedia) and for the San Diego thornmint (below, photo from Gary A. Monroe @ USDA-NRCS PLANTS Database).

73 Fed. Reg. 50454 (Tuesday, August 26, 2008)(DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; 50 CFR Part 17; WS–R8–ES–2007–0007; 92210–1117–0000–B4 RIN 1018–AU86; Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Acanthomintha ilicifolia (San Diego thornmint); Final rule.)

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are designating critical habitat for Acanthomintha ilicifolia (San Diego thornmint) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 671 acres (ac) (272 hectares (ha)) of land in San Diego County, California, fall within the boundaries of the critical habitat designation.

Posted by Keith Rizzardi | 08/26/2008 8:09 PM | California | Permalink | Comments (2)

FWS reopens comment period and public hearings on revisions to Peninsular bighorn sheep critical habitat

08/26/2008

Category Federal Register
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73 Fed. Reg. 50498 (Tuesday, August 26, 2008)(DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; 50 CFR Part 17; WS–R8–ES–2008–0005; 92210–1117–0000–B4 RIN 1018–AV09; Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Peninsular Ranges Population of Desert Bighorn Sheep (Ovis canadensis nelsoni); Proposed rule; reopening of comment period, revised proposed critical habitat, notice of availability of draft economic analysis, notice of public hearings, and amended required determinations).

According to the Coachella Valley Multiple Species Habitat Conservation Plan, "the Peninsular bighorn sheep is endangered because of the loss and fragmentation of Habitat, disease, and predation. A limiting factor is that the sheep live in a narrow band of Habitat in which they must find the resources needed to survive in a harsh desert environment." The CVMSHCP conservation goals expressly address the needs of the species. Photo of Bighorn sheep from Department of Interior Bureau of Land Management.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the comment period and the scheduling of public hearings on our October 10, 2007, proposed revision to critical habitat for the Peninsular bighorn sheep (Ovis canadensis nelsoni) under the Endangered Species Act of 1973, as amended (Act). In this document, we propose to add approximately 36,240 acres (ac) (14,667 hectares (ha)) to our proposed revision of critical habitat. We also announce the availability of the draft economic analysis (DEA) of the proposed revision to critical habitat and amended required determinations. We are reopening the comment period to allow all interested parties an opportunity to comment simultaneously on the proposed revisions to critical habitat, the associated DEA, and the amended required determinations section. Please do not resend comments that you submitted on the October 10, 2007, proposed rule. We considered those comments in our revisions to the proposed critical habitat that are set forth in this supplemental proposed rule. Comments previously submitted are included in the public record for his rulemaking.

EXCERPT RE: ADDITIONAL HABITAT: FWS added new areas of critical habitat to the proposed designation. For example, "During the public comment period, a number of comments we received from biologists familiar with the Peninsular bighorn sheep provided additional information regarding the importance of low-elevation and alluvial fan habitat along the eastern edge of the Santa Rosa Mountains. We also received a limited amount of recently collected occurrence data in the wash areas along the eastern edge of the south Santa Rosa Mountains. In light of these comments and the revision of our criteria used to identify critical habitat to include occurrence data since 1988, we reevaluated and revised our proposed revised critical habitat boundary along the eastern edge of the Santa Rosa Mountains. We agree that low-elevation habitat is important for Peninsular bighorn sheep, and where occurrence data indicated sheep use, we revised our proposed revision of critical habitat to include four additional areas along the eastern edge of the Santa Rosa Mountains. Similarly, "since the proposed revised critical habitat was published, there have been additional sightings and reports of sheep activity around and within the Interstate 8 ‘‘Island,’’ including suitable habitat areas that extend south to the United States-Mexico border recently collected by Service biologists and other biologists familiar with the DPS include actual sightings of multiple sheep and reports of sheep scat and tracks throughout the area, indicating that this area is currently occupied by a group of Peninsular bighorn sheep. This area exhibits rugged habitat that contains the features essential for Peninsular bighorn sheep conservation and is continuous with habitat in Mexico...."

NOTEWORTHY EXCERPTS RE: REMOVAL AND EXCLUSIONS OF CRITICAL HABITAT. While FWS added some critical habitat, it substracted some too... Changes to Areas Currently Being Considered for Exclusion. Based on ownership updates and additions to the proposed revised critical habitat described in this document, there are approximately 6,302 ac (2,550 ha) of private and draft CVMSHCP (Coachella Valley Multiple Species Habitat Conservation Plan) permittee-owned and in Unit 1 and 12,499 ac (5,058 ha) in Unit 2A. We are now evaluating and considering the possible exclusion from the final revised critical habitat designation approximately 18,801 ac (7,609 ha) of private and draft CVMSHCP permittee-owned lands covered by the draft CVMSHCP under section 4(b)(2) of the Act.

KEITHINKING: Public comment does serve a purpose, and FWS clearly does respond to it.

Posted by Keith Rizzardi | 08/26/2008 8:05 PM | Carlsbad, CA | Permalink | Comments (0)

No, FWS says, exotic invasive snakeheads should not be listed as endangered species.

08/21/2008

Category Federal Register
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73 Fed. Reg. 48359 (Tuesday, August 19, 2008)(DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; 50 CFR Part 17; WS–R9–IA–2008–0092; 96100–1671–0000–B6 Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List the Northern Snakehead Fish (Channa argus) Under the Endangered Species Act)

If you come across this fish, Maryland officials say "kill it." Snakehead photo from Maryland Department of Natural Resources, also available from wiki

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce our 90-day finding on a petition to list the northern snakehead fish (Channa argus) as endangered under the Endangered Species Act of 1973, as amended (Act). We find that the petition does not present substantial scientific or commercial information indicating that listing this species under the Act may be warranted. We will not initiate a status review in response to this petition and, consequently, will not consider the designation of critical habitat as petitioned.

PETITION HISTORY: On January 4, 2005, the Service received a petition dated December 30, 2004, from Alan D. Gardner, a member of the Washington County Commission in Utah, on behalf of 14 additional county officials representing 13 western States (petitioners), to list the northern snakehead fish (Channa argus) as an endangered species and to designate the entire Chesapeake Bay watershed as critical habitat. The petition clearly identified itself as a petition and included the requisite identification information as required in 50 CFR 424.14(a).

PREVIOUS FEDERAL ACTIONS: The Service published a final rule on October 4, 2002 (67 FR 62193) that added all snakehead fishes of the family Channidae, including the northern snakehead fish, to the list of injurious wildlife species under the Lacey Act (18 U.S.C. 42). In taking this action, the Service found that all snakehead fishes are injurious to the wildlife and wildlife resources of the United States. As an injurious species, the interstate transportation and importation of any live animal or viable egg of snakeheads into the United States without an injurious wildlife permit is prohibited.

KEITHINKING: Was this a joke? Sort of, but it's not very funny. Snakeheads, as an exotic invasive predator species of fish, present a potential threat to the mid-Atlantic ecosystems. The air-breathing, land crawling "Frankenfish" launched a media frenzy when discovered breeding in Maryland waters in 2002. See FONZ article on the Frankenfish. Some folks have stated that the Utah scientists were making a point about how Washingtonians use the ESA to regulate Westerners. Or maybe they just enjoyed fishing for the notoriously tough fighting fish.

Posted by Keith Rizzardi | 08/21/2008 11:35 PM | Mid-Atlantic | Permalink | Comments (0)

NWF v. Harvey: Federal Judge in Arkansas finds flaws in informal consultation on Ivory Billed Woodpeckers

08/21/2008

Category Case law
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National Wildlife Federation v. Harvey, No. 4:05-CV-01278-WRW, 2008 WL 3365017 (E.D.Ark., Aug. 8, 2008).

Ivory Billed Woodpecker specimen image from ARKive, Images of Life on Earth, © John Cancalosi / www.ardea.com, available online The Ivory Billed Woodpecker (Campephilus principalis) (IBW) is the largest woodpecker in the United States and the second largest in the world. The IBW was thought to be extinct since 1944; however, in April 2005, Cornell scientists confirmed a sighting in the Cache River National Refuge, and it was heard in the White River National Wildlife Refuge. The primary reason for the decrease in the IBW appears to be a reduction in suitable habitat because of logging and conversion of forest habitats. In order to thrive, the IBW must have uninhabited forest with old-growth trees and a continuous supply of newly dead trees. A single breeding pair may need as much as seventeen square miles of bottomland forest to survive. The IBW forages in trees greater than 11.8 inches in diameter at breast height ("dbh"), where they feed on beetles and beetle larvae in dead trees, and on ground dwelling insects. The IBW is known to nest forty feet above ground in large dead trees or in dead portions of live trees.

FACTUAL BACKGROUND: The Grand Prairie consists of approximately 500,000 acres located between the Mississippi and Arkansas Rivers and has become one of the major rice producing areas of the world. The White River runs directly through the region and water used to support agriculture has come primarily from wells drilled into the Alluvial Aquifer… Based on the current rate of usage, scientists estimate that the Alluvial Aquifer will go dry, or nearly dry, in four to nine years… The Grand Prairie Project ("GPP"), which is under attack in this lawsuit, is designed to prevent the depletion of the Alluvial and Sparta Aquifers by pumping water from the White River and delivering it to the Grand Prairie farmland for irrigation. This will be done by constructing a pumping station, and by using a system of man-made canals, pipelines, and existing streams… Importantly, the GPP's impact area will include the White River National Wildlife Refuge, which is home to the largest remaining functional bottomland hardwood ecosystem on any tributary of the Mississippi River. This area is renowned for its fish and wildlife, as well as the overall uniqueness of its ecosystem. It is also the last known North American refuge of the Ivory-billed Woodpecker ("IBW").

PROCEDURAL HISTORY: From 1996 to 2005, NWF and the Corps were engaged in litigation related to the National Environmental Policy Act and the construction of the GPP. After an 8th Circuit affirmation of the NEPA analysis, the Corps began construction... On April 28, 2005, the FWS announced the rediscovery of the IBW, and the Corps suspended construction… The Corps, with FWS concurrence, initially concluded that the GPP was not likely to adversely affect the IBW… but the District Court granted a preliminary injunction on continued GPP construction, agreeing with NWF that there was evidence that the IBW might be jeopardized… After an informal consultation, the Corps and FWS identified the potentially affected habitats, and developed surveys and monitoring criteria, and concluded that the GPP was not likely to adversely affect the IBW.

RULING RE: SURVEYS. The District Court agreed with the Federal Defendants that much of the GPP area is on prairie terrace, and "currently primarily in agricultural production with forested areas confined to lands in public ownership or the lowest wettest areas along streams and drainage.” Thus, most of the project area is "outside the area considered to be within the potential range of the IBW."

RULING RE: WATER WITHDRAWALS: “Based on the administrative record before me, the agencies reasonably decided that the impacts of the water withdrawals would not adversely affect the IBW or its habitat. Additionally, the FWS, aware of the possible effects of water withdrawal, created a monitoring and daptive Management Program as an additional safeguard against unexpected impacts.” … “Plaintiffs argue that it will take many years to detect unacceptable changes, and that Defendants' claims that they will quickly craft and implement solutions to counter unacceptable changes is unreasonable, unscientific, and arbitrary because of the complexity of the ecosystem. To support their position, Plaintiffs again rely on statements that were not part of the administrative record, and therefore, are outside the scope of my review. I must rely on the agencies if they have a reasoned, rationale explanation for their decision, and I find here that they have.”

RULING RE: SURVEY CRITERIA: Plaintiffs argue that the final survey criteria relied upon by the agencies were inadequate and the FWS arbitrarily changed the search criteria used. Ultimately, the District Court held: (i) FWS reasonably set the final survey criteria based upon typical distances traveled by the IBW. (ii) FWS’s final survey criteria placed a greater emphasis on the larger trees and determined that areas dominated by trees with 16 inch in dbh or greater would provide proper nesting and roosting opportunities for the IBW… and FWS conclusion was rational and supported by the record. (iii) FWS properly surveyed the area around permanent structures. However, (iv) FWS unreasonably reduced the monitoring of tree cavities… “FWS does not supply a reasoned basis for its decision to reduce the monitoring time nor is the FWS's logic reasonably discerned. It is unclear why monitoring would be reduced when the IBW was not discovered using the longer monitoring period... reducing the observation time, thereby apparently making it less likely to observe the IBW, without explanation, is arbitrary and capricious. An agency must cogently explain why it has exercised its discretion in a given manner--the FWS has not met this burden.”

REMEDY: “The Supreme Court has held that "when an administrative agency has made an error of law, the duty of the Court is to 'correct the error of law committed by that body, and after doing so remand the case to the agency so as to afford it the opportunity of examining the evidence and finding the facts as required by law.' " In other words, when an administrative error has been identified, a reviewing court "should ordinarily remand the matter to the agency rather than compensate for the agency's oversight by launching a free-wheeling judicial inquiry into the merits." … For the above stated reasons, Defendants' finding that the GPP will not adversely affect the IBW is VACATED, and the action is REMANDED to correct the deficiencies regarding the monitoring period in the administrative record.”

KEITHINKING: The District’s courts ruling on the inadequacy of the tree cavity monitoring program is noteworthy, given the fact that this was an informal consultation. While the record may indeed have lacked sufficient explanation of why FWS felt that less monitoring was reasonable, FWS was held to a very high standard for an analysis of a project that was not likely to adversely affect the species. While certainly a good idea, especially for purposes of helping to locate the Lord God bird, nowhere does the ESA require monitoring to result from informal consultation, and the requirement seems particularly out-of-place for a project found to be NLAA.

Posted by Keith Rizzardi | 08/21/2008 10:53 PM | Arkansas | Permalink | Comments (0)

Proposed Section 7 consultation rule revision announced by FWS and NOAA

08/16/2008

Category Federal Register ESA musings
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73 Fed. Reg. 47868 (Friday, August 15, 2008)(DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; 50 CFR Part 402; [FWS–R9–ES–2008–0093] RIN 1018–AT50; DEPARTMENT OF COMMERCE; National Oceanic and Atmospheric Administration; 50 CFR Part 402; [0808011023–81048–01] RIN 0618–AX15; Interagency Cooperation Under the Endangered Species Act; Proposed Rule)

The Department of Interior, undaunted by the criticisms of the proposed ESA regulations, has been aggressive in defending the proposal. See Press Release and DOI Home Page with Myths and Realities. Image of Secretary Kempthorne at a recent conference.

SUMMARY: The United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively, ‘‘Services’’ or ‘‘we’’) propose to amend regulations governing interagency cooperation under the Endangered Species Act of 1973, as amended (Act). The Services are proposing these changes to clarify several definitions, to clarify when the section 7 regulations are applicable and the correct standards for effects analysis, and to establish time frames for the informal consultation process. DATES: We must receive your comments by September 15, 2008 to ensure their full consideration in the final decision on this proposal.

RECAP: Earlier this week, the AP obtained a copy of these proposed regulations, and ESA blawg (Aug. 11, 2008) posted a summary of the regulations. Criticism has been immediate and abundant. In fact, The New York Times not only offered a harsh editorial, but also took the additional step of helping its readers to submit their own critiques. Remarkably, FWS has announced that it WILL NOT ACCEPT E-MAIL. See San Francisco Chronicle. NRDC has offered to help people with that problem by printing their e-mail submissions. See Andrew Wetzler, NRDC Switchboard.

EXCERPT: The core (and most controversial) section of the proposed regulations states as follows:
§ 402.03 Applicability.
(a) Section 7 of the Act and the requirements of this part apply to all actions in which the Federal agency has discretionary involvement or control.
(b) Federal agencies are not required to consult on an action when the direct and indirect effects of that action are not anticipated to result in take and:
(1) Such action has no effect on a listed species or critical habitat; or
(2) Such action is an insignificant contributor to any effects on a listed species or critical habitat; or
(3) The effects of such action on a listed species or critical habitat:
(i) Are not capable of being meaningfully identified or detected in a manner that permits evaluation;
(ii) Are wholly beneficial; or
(iii) Are such that the potential risk of jeopardy to the listed species or adverse modification or destruction of the critical habitat is remote.

KEITHINKING:In general, I agree with some of the criticisms, and the need for careful public scrutiny of these regulations. However, I offer five substantive observations...

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Posted by Keith Rizzardi | 08/16/2008 9:23 AM | Washington, D.C. | Permalink | Comments (0)

FWS designates critical habitat for San Bernardino bluegrass and California dandelion.

08/14/2008

Category Federal Register
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73 Fed. Reg. 47706 (Thursday, August 14, 2008)(DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; 50 CFR Part 17; WS–R8–ES–2007–0010; 92210–1117–0000–B4RIN 1018–AV04; Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Poa atropurpurea (San Bernardino bluegrass) and Taraxacum californicum (California taraxacum); Final rule).

The Primary Constituent Elements for Poa atropurpurea critical habitat are: (1) Wet meadows subject to flooding during wet years in the San Bernardino Mountains in San Bernardino County at elevations of 6,700 to 8,100 feet (2,000 to 2,469 meters), and in the Laguna and Palomar Mountains of San Diego County at elevations of 6,000 to 7,500 feet (1,800 to 2,300 meters), that provide space for individual and population growth, reproduction, and dispersal; and (2) Well-drained, loamy alluvial to sandy loam soils occurring in the wet meadow system, with a 0 to 16 percent slope, to provide water, air, minerals, and other nutritional or physiological requirements to the species. Photo from U.S. Forest Service.

The PCEs for Taraxacum californicum are: (1) Wet meadows subject to flooding during wet years and forest openings with seeps, springs, or creeks in the San Bernardino Mountains in San Bernardino County located at elevations of 6,700 to 9,000 feet (2,000 to 2,800 meters), that provide space for individual and population growth, reproduction, and dispersal; and (2) Well-drained, loamy alluvial to sandy loam soils occurring in the wet meadow system or forest openings with seeps, springs, or creeks, with a 0 to 46 percent slope, to provide water, air, minerals, and other nutritional or physiological requirements to the species. Photo from wikispecies.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are designating critical habitat for Poa atropurpurea and Taraxacum californicum under the Endangered Species Act of 1973, as amended (Act). Approximately 2,489 acres (ac) (1,009 hectares (ha)) of land in San Bernardino and San Diego Counties, California, fall within the boundaries of the critical habitat designation for P. atropurpurea, and approximately 1,914 ac (775 ha) of land in San Bernardino County, California, fall within the boundaries of the critical habitat designation for T. californicum. DATES: This rule becomes effective on September 15, 2008.

KEITHINKING: Yes indeed, in California, the dandelion is a listed species. Maybe they should harvest some from the lawns of my old neighborhood in Maryland....

Posted by Keith Rizzardi | 08/14/2008 10:09 PM | California | Permalink | Comments (0)

Two for one: taxonomic shift leads FWS to propose listing of two flatwoods salamander species

08/13/2008

Category Federal Register Florida
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73 Fed. Reg. 47258 (Wednesday, August 13, 2008)(DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; 50 CFR Part 17; WS-R4-ES-2008-00822210-1111 FY07 MO-B2 RIN 1018-AU85; Endangered and Threatened Wildlife and Plants; Proposed Endangered Status for Reticulated Flatwoods Salamander; Proposed Designation of Critical Habitat for Frosted Flatwoods Salamander and Reticulated Flatwoods Salamander; Proposed rule; availability of draft economic analysis, and opening of comment period.)

The overall range covered by the reticulated and the frosted flatwoods salamanders is the same as is currently designated for the flatwoods salamander. However, the reticulated flatwoods salamander inhabits the western part of the range and the frosted flatwoods salamander inhabits the eastern part. For more information on the flatwoods salamander, refer to the final listing rule published in the Federal Register on April 1, 1999 (64 FR 15691). In general, most threats for this species (for example, habitat loss, habitat degradation, inadequacy of existing regulatory mechanisms) are of a historical nature in the majority of the range because breeding ponds supporting 85 percent of frosted flatwoods salamander populations occur on public lands where the habitat is relatively protected. Photo of the frosted flatwoods salamander from Answers.com

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to split the listing under the Endangered Species Act of 1973, as amended (Act), of the currently threatened flatwoods salamander (Ambystoma cingulatum) into two distinct species: frosted flatwoods salamander (Ambystoma cingulatum) and reticulated flatwoods salamander (Ambystoma bishopi) due to a change in taxonomy. The frosted flatwoods salamander will maintain the status of threatened. However, we propose to list the reticulated flatwoods salamander as endangered under the Act. We also propose to designate critical habitat for both the frosted flatwoods salamander and the reticulated flatwoods salamander under the Act. In total, approximately 30,628 acres (ac) (12,395 hectares (ha)) (23,132 ac (9,363 ha) for the frosted flatwoods salamander and 7,496 ac (3,035 ha) for the reticulated flatwoods salamander) fall within the boundaries of the proposed critical habitat designation, which is located in the panhandle of Florida, southwestern Georgia, and southeastern South Carolina. We also announce the availability of the draft economic analysis for our proposed designation of critical habitat for the frosted and reticulated flatwoods salamanders. The draft economic analysis estimates that, over the period 2009 to 2028, post-designation costs for frosted and reticulated flatwoods salamander conservation-related activities would range between $3.88 million and $6.40 million (at a 3 percent discount rate) and $2.49 million to $4.38 million (at a 7 percent discount rate). Potential impacts are expected to range from $261,000 to $430,000 at 3 percent or $235,000 to $413,000 at 7 percent annually. DATES: We will accept comments received or postmarked on or before October 14, 2008. We must receive requests for public hearing by Sept. 29, 2008.

KEITHINKING: The listing amendment will have some effects on the Florida panhandle. Portions of the critical habitat include areas in the State, 19 populations of the reticulated flatwoods salamander are known from Florida, and the species' historic range included the Florida panhandle. In addition, "several relatively recent discoveries of previously unknown reticulated flatwoods salamander breeding sites in Santa Rosa County, Florida, have been made in conjunction with wetland surveys associated with development projects (Cooper 2008). No reticulated flatwoods salamanders have been observed at these degraded sites since completion of the projects (Cooper 2008)."

Posted by Keith Rizzardi | 08/13/2008 9:19 PM | Southeastern U.S. | Permalink | Comments (0)

FWS finalizes revised Northern spotted owl critical habitat rule

08/13/2008

Category Federal Register
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73 Fed. Reg. 47326 (Wednesday, August 13, 2008)(DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; 50 CFR Part 17; WS-R1-ES-2008–0051; 92210-1117-0000-FY08-B4 RIN 1018-AU37; Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the Northern Spotted Owl; Final rule).

The northern spotted owl inhabits most of the major types of coniferous forests across its geographic range, including Sitka spruce, western hemlock, mixed conifer and mixed evergreen, grand fir, Pacific silver fir, Douglas-fir, redwood/Douglas-fir (in coastal California and southwestern
Oregon), white fir, Shasta red fir, and the moist end of the ponderosa pine zone. In the northern portion of their range, northern spotted owls forage heavily in older forests that support northern flying squirrels, whereas in the southern portion of their range, where woodrats are a major component of their diet, northern spotted owls are more likely to use a variety of stands, including younger stands, brushy openings in older stands, and edges between forest types in response to higher prey density in some of these areas. Photo by Shane Jeffries, FWS Pacific office

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are revising currently designated critical habitat for the northern spotted owl (Strix occidentalis caurina) under the Endangered Species Act of 1973, as amended (Act). In 1992, we designated critical habitat for the northern spotted owl on 6, 887, 000 acres (ac) (2, 787, 070 hectares (ha)) of Federal lands in California, Oregon, and Washington. In this document we finalize revised critical habitat for the northern spotted owl on a total of approximately 5, 312, 300 acres (ac) (2, 149, 800 hectares (ha)) of Federal lands in California, Oregon, and Washington. DATES: This rule becomes effective on September 12, 2008.

KEITHINKING: In a noteworthy portion of the rule at 73 Fed. Reg. 47358-47359, FWS explains which types of federal activities will (or will not) affect the NSO critical habitat to a degree that formal ESA Section 7 consultation is (or is not) required. Making an important statement related to the continued viability of timber harvest and other activites that may have some impacts on NSO habitat, FWS explains that "Some proposed Federal activities may have short-term adverse effects and long-term beneficial effects on the PCEs of spotted owl critical habitat. The 2008 final recovery plan for the northern spotted owl anticipates that the MOCAs (managed owl conservation areas) on the westside, upon which critical habitat is based, will be managed to produce the highest amount and quality of northern spotted owl habitat possible, even if there are short-term negative effects from those actions."

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Posted by Keith Rizzardi | 08/13/2008 8:10 PM | Pacific Northwest | Permalink | Comments (0)

FWS renews review and potential delisting of the Bliss Rapids snail

08/12/2008

Category Federal Register
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73 Fed. Reg. 46868 (Tuesday, August 12, 2008)(DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; 50 CFR Part 17; WS–R1–ES–2008–0073; 14420–1113–0000–C5 Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To Remove the Bliss Rapids Snail (Taylorconcha serpenticola) From the List of Endangered and Threatened Wildlife; Notice of Document Availability)

The Idaho Governor's Office of Species Conservation has actively sought the delisting of certain snails species. the Bliss Rapids snail, a species found primarily on rocky surfaces in riverine and coldwater spring habitats along a 65-mile stretch of the Snake River in southern Idaho. They can be locally abundant in springs and spring habitat, but when listed in 1992, the Bliss rapids snail was threatened by construction of new hydropower dams, the operation of existing hydropower dams, degraded water quality, water diversions, the introduced New Zealand mudsnail (Potamopyrgus antipodarum), and the lack of existing regulatory protections (57 FR 59244). Photo of unidentified snail species from Idaho Governor's Office.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the availability of new information that may impact our status review for the Bliss Rapids snail (Taylorconcha serpenticola). This information has become available since the close of the comment period on our 90-day finding (72 FR 31250) on a petition to remove the Bliss Rapids snail from the Federal List of Endangered and Threatened Wildlife, pursuant to the Endangered Species Act of 1973, as amended (Act). Interested members of the public are invited to submit comments on this new information as it applies to the listing status of the Bliss Rapids snail. DATES: To ensure consideration in the 12-month finding on this petition, comments and information should be submitted to us by August 27, 2008.

HISTORY: On December 26, 2006, we received a petition filed by the State of Idaho and the Idaho Power Company to remove the Bliss Rapids snail from the Federal List of Endangered and Threatened Wildlife in accordance with the provisions of section 4 of the Act. On June 6, 2007, we published a substantial 90-day finding on the petition to remove the Bliss Rapids snail from the List of Endangered and Threatened Wildlife (72 FR 31250), initiated a status review, and opened a 60-day public comment period. Subsequent to the public comment period, new information has become available that is relevant to our status review.

Posted by Keith Rizzardi | 08/12/2008 9:08 PM | Idaho | Permalink | Comments (0)

FWS reopens comment on Hawaiian picture wing flies' critical habitat rule

08/12/2008

Category Federal Register
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73 Fed. Reg. 46860 (Tuesday, August 12, 2008)(DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; 50 CFR Part 17; WS–R1–ES–2007–0006; 92210–1117–0000–B4 RIN 1018–AU93; Endangered and Threatened Wildlife and Plants; Revised Proposed Designation of Critical Habitat for 12 Species of Picture-wing Flies From the Hawaiian Islands; Proposed rule; reopening of comment period, notice of availability of draft economic analysis, and amended required determinations.)

The U.S. Fish and Wildlife Service has proposed designating more than 9,200 acres as critical habitat for Hawaiian picture-wing flies. Photo from answers.com

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the comment period on the revised proposed designation of critical habitat for 12 species of Hawaiian picture-wing flies. See prior ESA blawg (March 7, 2008)

Posted by Keith Rizzardi | 08/12/2008 8:53 PM | Hawaii | Permalink | Comments (0)

FWS revises final critical habitat rule on Devils River Minnow in response to public comment

08/12/2008

Category Federal Register
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73 Fed. Reg. 46988 (Tuesday, August 12, 2008)(DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; 50 CFR Part 17; WS–R2–ES–2008–0018; 92210–1117–0000–B4 RIN 1018–AV25; Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Devils River Minnow; Final rule.)

The Devils River minnow is an algae-eating fish that spends its entire lifecycle only in pollution-free aquatic environments of small to mid-sized streams that are tributaries of the Rio Grande in south Texas and northern Mexico. General habitat descriptions of areas where Devils River minnow have been found include the following: ‘‘the area where spring runs enter the river’’; ‘‘channels of fast-flowing water over gravel bottoms... associated with water willow and other aquatic macrophytes (plants not needing a microscope) over a gravel-cobble substrate’’; and ‘‘stream seeps’’ where small amounts of water enter the stream from the ground at sites that ‘‘had abundant riparian vegetation overhanging the banks." Photo from FWSAustin TX Ecological Field Services Office.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the Devils River minnow (Dionda diaboli) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 26.5 stream kilometers (km) (16.5 stream miles (mi)) are within the boundaries of the critical habitat designation. The critical habitat is located in streams in Val Verde and Kinney Counties, Texas. DATES: This final rule becomes effective on September 11, 2008.

HISTORY: The Devils River minnow was listed as threatened on October 20, 1999 (64 FR 56596). Critical habitat was not designated for this species at the time of listing (64 FR 56606). On October 5, 2005, the Forest Guardians, Center for Biological Diversity, and Save Our Springs Alliance filed suit against the Service for failure to designate critical habitat for this species (Forest Guardians et al. v. Hall 2005). On June 28, 2006, a settlement was reached that requires the Service to re-evaluate our original prudency determination. The settlement stipulated that, if prudent, a proposed rule would be submitted to the Federal Register for publication on or before July 31, 2007, and a final rule by July 31, 2008. See also ESA blawg (Feb. 10, 2008)

EXCERPT RE: EXCLUSION OF HABITAT: As a result of comments received, we made the following changes to our proposed designation... (2) We have excluded 47.0 stream km (29.2 stream mi) of stream within the Devils River Unit (Unit 1) proposed as critical habitat for Devils River minnow from the final designation (see the ‘‘Exclusions under Section 4(b)(2) of the Act’’ section of this final rule for further details)...

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Posted by Keith Rizzardi | 08/12/2008 8:28 PM | Texas | Permalink | Comments (0)

AP and CNN: "Bush could weaken Endangered Species Act"

08/11/2008

Category ESA musings
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Citing a draft copy of regulations obtained by the Associated Press, CNN reported that "the Bush administration wants federal agencies to decide for themselves whether highways, dams, mines and other construction projects might harm endangered animals and plants." In addition, the Interior Department said such informal consultations are "no longer necessary because federal agencies have developed expertise to review their own construction and development projects." In response, the National Wildlife Federation and magazines and bloggers have declared the regulations a "sneak attack" on the Endangered Species Act.

Image of Dale Hall, Director of the U.S. Fish & Wildlife Service. Despite his career of service to the FWS, and his master's degree in fisheries science, some critics will inevitably resume the Fire Dale Hall campaign over these regulations, or otherwise declare the rule proposal nothing but a Bush Administration tactic.

Image of James Balsiger, NOAA Acting Assistant Administrator for Fisheries (bottom). Mr. Balsiger is also a career NOAA scientist with a Ph.D. in ecology. ESA issues are rarely as black and white as some people would like to think.

ANALYSIS: Prior postings on these pages have acknowledged the good and the bad of the ESA (see right column), and certainly, some degree of regulatory reform to the ESA could be appropriate. Moreover, ESA reform has hardly been a secret, and NPR was reporting on potential changes only a year ago. These proposed regulations disclosed (or leaked) earlier today, however, as posted on the NWF webpage (and sadly, not currently available from the government agencies proposing them) are substantial in scope.

At their core, the proposed rules rewrite the Section 7 consultation process, significantly limiting the need for U.S. Fish & Wildlife Service or National Marine Fisheries Service review of the actions proposed by other federal agencies, particularly in the context of informal consultation with the FWS and NMFS. By the regulation's own terms, "The intent of these proposed exclusions is to reduce the number of unnecessary consultations." Specifically, the proposed rule changes include:

(a) revising the informal consultation process associated with a biological assessment, giving more discretion to the federal agency proposing an action;

(b) narrowing the scope of "cumulative effects" in the ESA, even more so than the current scope (which in turn is already narrower than the cumulative impacts analysis required by the National Environmental Policy Act);

(c) narrowing the definition of "effects of the action" to require Section 7 consultation only when the action is an "essential" cause of the effects, meeting the legal notion of "but for" causation, and only when there is "clear and substantial information" that the effects are "reasonably certain to occur."

(d) clarifying when a proposed federal action has "no effect" on a species, and thus eliminating the need for consultation for actions with "discountable" or "insignificant" or "not capable of being meaningfully identified or detected" or "remote" effects;

(e) reinforcing the view that there is no need to consult on the effects of greenhouse gas emissions;

KEITHINKING: In its explanation of some of the proposed changes, the draft rule offers a reasonable and even important insight. For example, the document states that: "In 1986... very few Federal action agencies had any in depth expertise with section 7 and listed species. For that matter, the more complex consultation process was relatively new to the Services (FWS and NMFS) as well... We recognize that Federal action agencies have more expertise now than in 1986, and are much more aware of the consequences and significance of their findings..." While reasonable minds may disagree, and the specific proposals might go further than some people think necessary, the "experienced agency" theory quoted above does provide logical support for some changes in the ESA, and especially in the informal consultation process. However, by tying the proposed rule to climate change discussion, the proponents of the rule have done a disservice to their objectives. Critics of this proposed rule -- empowered and perhaps justified by the secrecy in which the rules were developed -- will declare it to be nothing more than an over-reaction to the potential for the ESA to be used (or abused) as part of the climate change policy debate. And that fact, in turn, simply highlights (again) the utter lack of a reasonable national policy for dealing with an issue that may become the defining problem of the century. In other words, rather than tackling the problem of climate change by seeking appropriate new laws, officials in FWS and NMFS have proposed rewrites to the tangentially-related Endangered Species Act, and even if the rewrites had merit, that merit will be lost in a noisy and emotional debate.

Posted by Keith Rizzardi | 08/11/2008 9:37 PM | Florida | Permalink | Comments (0)

Rejecting CBD, and reversing lower court, 9th Circuit rules for developer of California waterfront condominium

08/06/2008

Category Case law U.S. Court of Appeals (9th Cir.)
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FWS delists the Virginia Northern Flying Squirrel

08/26/2008

FWS reduces critical habitat for Bay checkerspot butterfly, designates critical habitat for San Diego thornmint

08/26/2008

FWS reopens comment period and public hearings on revisions to Peninsular bighorn sheep critical habitat

08/26/2008

No, FWS says, exotic invasive snakeheads should not be listed as endangered species.

08/21/2008

NWF v. Harvey: Federal Judge in Arkansas finds flaws in informal consultation on Ivory Billed Woodpeckers

08/21/2008

Proposed Section 7 consultation rule revision announced by FWS and NOAA

08/16/2008

FWS designates critical habitat for San Bernardino bluegrass and California dandelion.

08/14/2008

Two for one: taxonomic shift leads FWS to propose listing of two flatwoods salamander species

08/13/2008

FWS finalizes revised Northern spotted owl critical habitat rule

08/13/2008

FWS renews review and potential delisting of the Bliss Rapids snail

08/12/2008

FWS reopens comment on Hawaiian picture wing flies' critical habitat rule

08/12/2008

FWS revises final critical habitat rule on Devils River Minnow in response to public comment

08/12/2008

AP and CNN: "Bush could weaken Endangered Species Act"

08/11/2008

Rejecting CBD, and reversing lower court, 9th Circuit rules for developer of California waterfront condominium

08/06/2008