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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

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"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.

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Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

« Court defers to FWS, refuses to undo critical habitat designation for fairy shrimp in Otay Mesa, even though evidence was "distinctly thin." | Main| District court says Forest Service exceeded incidental take of salmonids, also finds that grazing permittees must be heard during consultation process »

Ninth Circuit defers to FWS analysis of project impacts to vernal pool species' critical habitat

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Butte Environmental Council v. U.S. Army Corps of Engineers, 607 F.3d 570, 2010 WL 2163186 (9th Cir., June 1, 2010)(Circuit Judges O’Scannlain, Trott and Paez)

SUMMARY: The Ninth Circuit, after considering whether the Army Corps, U.S. EPA, and U.S. Fish & Wildlife Service violated the Clean Water Act or Endangered Species Act, upheld the lower court, and rejected Plaintiffs claims that the approved construction of a business park on protected wetlands in California was arbitrary and capricious.  The City of Redding's project, sized to provide economic stimulus benefits, impacted hundreds of acres of listed species critical habitat, but did provide at least one-for-one mitigation of all direct impacts to listed species.  The environmental advocacy organizations argued that the impacts should have been considered an "adverse modification" in violation of the Endangered Species Act, but FWS disagreed, and the Ninth Circuit deferred.  

FACTUAL BACKGROUND: After years of researching potential sites for economic development, the City of Redding, California, decided to construct a business park on a 678-acre site located on wetlands along Stillwater Creek.  The proposed site contained critical habitat for several ESA-listed species under the jurisdiction of the Secretary of the Interior, including the threatened vernal pool fairy shrimp, the endangered vernal pool tadpole shrimp, and the threatened slender Orcutt grass. These ESA-listed species occupy the site's vernal pools-shallow depressions that fill with rainwater in the fall and winter and then dry up in the spring.

Vernalpool4.jpg
Photo of a Central Valley region vernal pool from UCLA.

ESA CONSULTATION HISTORY: Section 7 of the ESA required consultation with the U.S. Fish and Wildlife Service (“FWS”), which “administers the ESA with respect to species under the jurisdiction of the Secretary of the Interior.” Home Builders, 551 U.S. at 651. The City (and Corps) initiated formal consultation with the FWS.  In its biological opinion, the FWS determined that the proposed Stillwater site contained 356.6 acres of critical habitat shared by the vernal pool fairy shrimp and the vernal pool tadpole shrimp. According to the FWS, the proposed development would destroy 234.5 acres of this critical habitat (amounting to 0.04% of the fairy shrimp's 597,821 acres of total critical habitat nationwide and 0.10% of the tadpole shrimp's 228,785 acres of total critical habitat nationwide). The FWS also determined that the proposed development would directly affect 0.56 acres, and indirectly affect 6.42 acres, of the crustaceans' aquatic habitat. The FWS noted, however, that the City proposed to offset these effects by creating or restoring 0.56 acres of aquatic habitat, and preserving another 18.64 acres, at other on-and off-site locations.  As for the threatened slender Orcutt grass, the FWS reported that the proposed site contained 500 acres of the plant's critical habitat, of which 242.2 acres (amounting to 0.26% of the plant's 94,213 acres of total critical habitat nationwide) would be destroyed. According to the FWS, the proposed development would also directly affect 0.07 acres, and indirectly affect 4.33 acres, of suitable grass habitat itself. The FWS again noted, however, that the City promised to compensate for these losses by creating or restoring 0.14 acres of suitable grass habitat and preserving another 15.94 acres.  The FWS acknowledged that “the proposed project would contribute to a local and range-wide trend of habitat loss and degradation,” and “to the fragmentation and reduction of the acreage of the remaining listed vernal pool species habitat.” Nonetheless, the FWS concluded that “the Stillwater Business Park project, as proposed, is not likely to jeopardize the continued existence of the ... vernal pool fairy shrimp, vernal pool tadpole shrimp, and slender Orcutt grass.” The FWS further concluded that “the proposed project would not result in the adverse modification or destruction of critical habitat” for those species.

CRITICAL EXCERPT: Citing the Ninth Circuit's Gifford Pinchot decision, the Butte Environmental Council also challenges as arbitrary and capricious the FWS's biological opinion that the City's proposed Stillwater project “would not result in the adverse modification or destruction of critical habitat for vernal pool fairy shrimp, vernal pool tadpole shrimp, or slender Orcutt grass.” …  Among other claims, the Council contends that the FWS's finding of no “adverse modification” conflicts with its determination that the proposed Stillwater project would destroy 234 .5 acres of critical habitat for the vernal pool crustaceans and 242.2 acres of critical habitat for slender Orcutt grass. Gifford Pinchot, however, did not alter the rule that an “adverse modification” occurs only when there is “a direct or indirect alteration that appreciably diminishes the value of critical habitat.” 50 C.F.R. § 402.02 (emphasis added); see Gifford Pinchot, 378 F.3d at 1070 (taking issue only with the use of “and” instead of “or” in the regulatory definition of “adverse modification”); id. at 1075 (discussing appreciable diminishment). An area of a species' critical habitat can be destroyed without appreciably diminishing the value of the species' critical habitat overall. As the FWS's ESA consultation handbook explains:

Adverse effects on individuals of a species or constituent elements or segments of critical habitat generally do not result in jeopardy or adverse modification determinations unless that loss, when added to the environmental baseline, is likely to result in significant adverse effects throughout the species' range, or appreciably diminish the capability of the critical habitat to satisfy essential requirements of the species.

U.S. Fish & Wildlife Serv. & Nat'l Marine Fisheries Serv., Endangered Species Consultation Handbook: Procedures for Conducting Consultation and Conference Activities Under Section 7 of the Endangered Species Act 4-34 (1998) (boldface removed). The FWS's determination that critical habitat would be destroyed was thus not inconsistent with its finding of no “adverse modification.” After all, the project would affect only a very small percentage of the total critical habitat for the vernal pool fairy shrimp, vernal pool tadpole shrimp, and slender Orcutt grass.  The Council maintains, however, that the FWS's focus on the project's impact on the species' total critical habitat “masked the Project's localized impact.” “Focusing solely on a vast scale can mask multiple site-specific impacts that, when aggregated, do pose a significant risk to a species.”   Gifford Pinchot, 378 F.3d at 1075. But where, as here, there is no evidence in the record that “some localized risk was improperly hidden by use of large scale analysis, we will not second-guess the FWS.” Id.