D.C. federal judge invalidates FWS biop covering California sand bar breach, cites poor incidental take statement
Pacific Shores Subdivision California Water District v. U.S. Army Corps of Engineers, Civil Action 04-02091 (HHK), 2008 U.S. Dist. LEXIS 20164 (D.D.C. Mar. 17, 2008)
Henry H. Kennedy, Jr., United States District Judge.
ISSUE: Plaintiffs bring this action under the Endangered Species Act, 16 U.S.C. §§ 1531 et seq., and the Administrative Procedures Act, 5 U.S.C. §§ 701 et seq., challenging the issuance of a permit by the United States Army Corps of Engineers to Del Norte County and the California Department of Fish and Game to breach the sand bar separating Lake Earl and Lake Talawa from the Pacific Ocean.
LEGAL BACKGROUND: The ESA requires that the Corps investigate the effects of the proposed breaching action on listed species through consultations with either the National Marine Fisheries Service ("NMFS") or the United States Fish & Wildlife Service ("FWS"). The FWS administers the Endangered Species Act with respect to species under the jurisdiction of the Secretary of the Interior, such as the tidewater goby, the Oregon silverspot butterfly, the California brown pelican (proposed for delisting -- see prior ESA blawg) and the western snowy plover, while the NMFS administers the Endangered Species Act with respect to species under the jurisdiction of the Secretary of Commerce, such as the SONCC coho salmon. See 50 C.F.R. §§ 17.11, 222.101(a), 223.102, 402.01(b)... NMFS concluded that "the proposed action may affect, but is not likely to adversely affect SONCC coho salmon and their critical habitat."... FWS concluded that the proposed breaching "is not likely to jeopardize the continued existence" of any of the listed species and also that the "proposed action would not result in destruction or adverse modification of any proposed or designated critical habitat."
RULING: Plaintiffs challenge the Corps' issuance of the 2005 permit on four grounds: 1) the Corps' consultation with the NMFS was arbitrary and capricious; 2) the Corps' consultation with the FWS was arbitrary and capricious; 3) neither the NMFS nor the FWS submitted an appropriate incidental take statement; and 4) the 2005 permit has resulted in the illegal taking of an endangered species. The Court rejected arguments 1, 2 and 4, but agreed, in part, with the Plaintiffs on the third argument, and found that FWS had issued a defective incidental take statement because it failed to include terms and conditions to guide the permittee, and because it failed to set a limit for incidental take of brown pelicans.
Photo of Lake Talawa breaching from Aquatic Resource Specialists Consulting (1998-1999 Lake Earl Tidewater goby habitat study)
COMMENTARY: Although ultimately decided and remanded on other grounds, this decision exposes an emerging split among the circuits. Specifically, this Court upheld the portion of the FWS's incidental take statement that uses an “ecological surrogate” – harm to the tidewater goby's habitat – to define the anticipated incidental take of the tidewater goby:
Approximately 2,500 acres of suitable habitat would be unavailable to tidewater gobies after each breach event as the water's edge recedes, exposing sheltering, spawning, rearing, and foraging habitat. The number of acres of suitable habitat affected depends on lagoon water levels at the time of breaching. We anticipate up to three breaches annually, depending on rainfall and ocean sand transport. Therefore, up to 7,500 acres of suitable tidewater goby habitat may be affected annually, or up to 75,000 acres over the life of the 10-year permit.
See also, FWS paperon tidewater goby. In contrast, in Oregon Natural Resource Council v. Allen, CV-03-088 (9th Cir., Feb. 16, 2007), the appellate court ruled that “Contrary to the FWS’ argument, ‘quantifying’ take in terms of habitat acreage lost is simply not the type of numerical limitation on take contemplated by Congress or this court’s precedent.” Here, however, the District Court clearly approved of exactly that type of habitat-based surrogate to measure incidental take of species.
ADDITIONAL FACTUAL BACKGROUND: Lake Earl and Lake Talawa ("Lakes") are two interconnected lakes located several miles north of Crescent City in Del Norte County, California. The Lakes are separated from the Pacific Ocean by a narrow sand bar and together form a coastal lagoon area that is home to several endangered and threatened species, including the tidewater goby, the Oregon silverspot butterfly, the western snowy plover, the Southern Oregon/Northern California Coast ("SONCC") coho salmon, and the California brown pelican. For over 200 years, parties seeking to manipulate the level of water in the Lakes and the surrounding wetlands have periodically breached the sand bar separating the Lakes from the Pacific Ocean... for a variety of reasons, including erosion management, flood avoidance, irrigation, and the preservation of existing habitat and wildlife in the Lakes and the surrounding areas. A disagreement about the best time of year and ideal water height for artificial breaching lies at the crux of this case.
ADDITIONAL EXCERPTS OF OPINION AND ANALYSIS: After evaluating each of Plaintiffs claims against the Administrative Record, the Court upheld much of the Corps' Consultation with the NMFS. Specifically, the Court found that even though the consultation involved a reversal of past findings, after four years of scientific testing repeatedly failed to demonstrate the presence of any coho salmon in either the Lakes or their tributaries, NMFS concluded in 2004 that the coho salmon and its habitat would not likely be adversely affected by the proposed breaching action. Agencies are free to change course as their expertise and experience may suggest or require, but when they do so they must provide a 'reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored.'" Ramaprakash v. F.A.A., 346 F.3d 1121, 1124-25 (D.C. Cir. 2003). The Court found no reason to second guess the NMFS's conclusion. In addition, the Court held that NMFS consultation was not based on sound science; and 3) the consultation failed to consider relevant facts. The Court also found that NMFS relied on sound science and considered all relevant factors, because (among other reasons) NMFS reviewed this information and reasonably concluded that since it was unlikely that coho salmon would be present in the Lakes at the time of the artificial breaching, it was also unlikely that coho salmon could be forced to enter the ocean prematurely as a result of the artificial breaching.
The Court also rejected similar efforts by the Plaintiffs to challenge the factual details of the FWS review. For example, the Court upheld portions of FWS’s analysis of water quality and water levels for the tidewater goby. The Court also upheld the environmental baseline used by FWS, finding that FWS is required to account for the impact of other agency or private past and present actions, and that even though artificial breaching has long been the preferred method for managing the level of water in the Lakes, consideration of natural breaching levels--what would happen absent the artificial breaching--is an appropriate factor in the FWS's biological opinion. Finally, based on a careful review of the administrative record, the Court held that FWS relied on sound science.
The court also concluded that the NMFS did not need to provide an incidental take statement Informal consultation, the Court held, is "an optional process" designed to help the federal agency determine whether formal consultation is required, and an incidental take statement is only necessary when the agency proceeds to the formal consultation process. Although the Court upheld the use of a habitat-based ecological surrogate to measure incidental take of the tidewater goby (see above), the Court found the incidental take statement defective anyway because it lacked terms and conditions to help minimize the take of the listed species, and because FWS established that brown pelicans are present in the affected area and admitted that the brown pelicans face a greater risk of take as a result of the artificial breaching, yet FWS failed to include an incidental take statement for the species.