Habitat in the Endangered Species Act

Response to Jake Li's response to FWS revised definition of "habitat".

A couple of points about critical habitat.  First, it is often not stated by those who understand the ESA, and often misunderstood by those who do not, that critical habitat designations only have regulatory force on federal lands or for projects that involve a federal nexus (such that a federal agency would consult with FWS). While this may seem like nitpicking, it is crucial to understand the regulatory impact of the change in definition, as many federal agencies do not rely exclusively on critical habitat designations but instead consult with FWS based on the SME of their biologists whenever a project may impact a listed species.  

For private land, where many people are most worried about critical habitat, any changes in the areas designated would have little to no impact due to the fact that critical habitat has little to no impact on private land.

Second, it is interesting to consider how this change in the definition of habitat would affect monarchs. I think it would not affect monarch habitat due to the inclusion of "ephemeral and seasonal habitat" in the definition.  Even if monarchs only inhabit an area for a few months of the year, that area could still be designated critical habitat. 

You write that the 7a habitat protection is redundant if an area is occupied (and therefore protected by the jeopardy prohibition).  But monarchs (and many other species) only seasonally occupy parts of their critical habitat, so the 7a protection will continue to be relevant in those cases. 

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Thoughts about possible monarch listing:

Planting milkweed habitat

Some people are afraid of creating milkweed habitat because apparently they think they would never be able to destroy or modify this habitat.  I find this unlikely.  More likely is that they would be restricted from destroying or modifying the habitat while monarch caterpillars are present.  During winter months, they could destroy this habitat without adversely affecting individual monarchs.  Habitat protection in the ESA is often misunderstood on this point.

CCAA

I assume that monarchs will be listed.  Even so, there are many reasons for not joining CCAA, but I will focus on reasons that FWS enforcement will not be detrimental to business operations at companies with well-developed IVM programs.

A mature IVM program already has the goal to move away from mowing/mastication toward spot treatment of incompatibles with herbicide.  Although there will need to be mowing in some areas, the reason for mowing is that the areas are overgrown with woody vegetation. Therefore these areas would not support monarch milkweed habitat.

There may be incidental work in monarch milkweed habitat, but most of this work would not impact monarch breeding. For example tree cutting. I consider it unlikely the FWS would broadly restrict all activities in monarch milkweed habitats, due to the vast and unenforceable impact this would have on ordinary activities across the country.

I believe FWS will restrict some activities that would impact monarch milkweed habitat, during the monarch breeding season, especially ground-disturbing activities.  Biological opinions for species impacted by ground disturbing work implement mitigation measures that include timing restrictions and crew trainings.  FWS has provided incidental take statements based on these mitigation measures and reporting requirements.  I expect a similar scenario when monarch are listed. 

Rosemont mine delayed by 1872 Mining Law

Quotes from Arizona Daily Star:

In his 37-page decision, Soto hammered almost exclusively at the Forest Service’s approval of Hudbay’s plan to dump mine waste rock and tailings from its 955-acre pit onto 2,447 acres of nearby public land on the Santa Ritas’ eastern slopes.

Opponents’ lawsuits argued that only public lands directly above valuable mineral deposits are covered by the federal 1872 mining law’s definition of mining rights.

Soto wrote in his decision that for Hudbay to gain access to valuable copper, molybdenum and silver from the pit, the company would need to extract about 1.2 billion tons of economically worthless waste rock and about 700 million tons of mine tailings.

The Forest Service's primary error in this case was to accept, without question, that Hudbay's unpatented mining claims on those 2,447 acres were valid, thereby allowing them to be used for placement of the waste rock and tailings, he wrote.

Source.

Proposed Changes to Regulations Implementing the Endangered Species Act

Reference: https://www.fws.gov/endangered/improving_ESA/regulation-revisions.html



Regulations for Listing Species and Designating Critical Habitat

Economic Impacts: "the Services will continue to make determinations based solely on biological considerations. However, there may be circumstances where referencing economic, or other impacts may be informative to the public"

Foreseeable Future: use definition set forth in 2009, where foreseeable "extends only so far into the future as theServices can reasonably determine that the conditions potentially posing a danger of extinction ... are probable."

Delisting species: clarifies that the standard for listing or delisting is the same. Important because FWS does not have to "demonstrate that all of the recovery plan criteria had been met before" delisting. Because: Section 4(a)(1) of the Act provides the Secretary `shall' consider the five statutory factors when determining whether a species is endangered, and section 4(c) makes clear that a decision to delist `shall be made in accordance' with the same five factors.”

Not Prudent Determinations: FWS may decide not to designate critical habitat when it is “not prudent”. Currently this can only occur under two circumstances, but the change would allow the Service more discretion. "We anticipate that not-prudent determinations would continue to be rare." This is an effort to avoid lawsuits.

Designating Unoccupied Areas: clarify that the service can do so "When a critical habitat designation limited to geographical areas occupied would (1) be inadequate to ensure the conservation of the species, or (2) result in less-efficient conservation for the species." Further, "In order for an unoccupied area to be considered essential, the Secretary must determine that there is a reasonable likelihood that the area will contribute to the conservation of the species....Because the only regulatory effect of a designation of critical habitat is the requirement that federal agencies avoid authorizing, funding, or undertaking actions that may destroy or adversely modify such habitat, the likelihood that an area will contribute to conservation is, in most cases, greater for public lands and lands for which such federal actions can be reasonably anticipated than for other types of land."



Regulations for Prohibitions to Threatened Wildlife and Plants

(This proposed revision has received the most comments on regulations.gov)

Summary: for newly listed species, there would be no legal penalty for “take” of threatened species. Section 7 consultation would still be required. This change would reduce the potential legal liability of APS, while not lessoning our consultation requirements.

“Currently, there are species-specific protective regulations for threatened wildlife in subpart D of part 17, but the Service has not adopted any species-specific protective regulations for plants. The proposed regulations would not affect the consultation obligations of Federal agencies pursuant to section 7 of the Act. Species listed or reclassified as a threatened species after the effective date of this rule would have protective regulations only if the Service promulgates a species-specific rule (also referred to as a special rule).”

This proposed change brings the USFWS regulations in line with the NMFS.


Section 7 Interagency Cooperation

“Nothing in these proposed revisions to the regulations is intended to require that any previous consultations under section 7(a)(2) of the Act be reevaluated….The Services anticipate that the proposed changes, if finalized, will improve and clarify interagency consultation, and make it more efficient and consistent, without compromising conservation of listed species.”

Destruction or Adverse Modification of Critical Habitat: This is a determination that is similar to a determination of Jeopardy for the species as a whole. For clarity, USFWS proposes adding the phrase “as a whole” to the current definition of Destruction or Adverse Modification: “`Destruction or adverse modification' means a direct or indirect alteration that appreciably diminishes the conservation value of critical habitat for the conservation of a listed species.”

The intent is that, “while an action may result in adverse effects to critical habitat within the action area, those effects may not necessarily rise to the level of destruction or adverse modification to the designated critical habitat. In adding the phrase “as a whole” to the proposed revised definition, we intend to clearly indicate that the final destruction or adverse modification determination is made at the scale of the entire critical habitat designation…..Just as the determination of jeopardy under section 7(a)(2) of the Act is made at the scale of the entire listed entity, a determination of destruction or adverse modification is made at the scale of the entire critical habitat designation.”

In each biological opinion, the determination regarding destruction or adverse modification is made by evaluating the effects of the proposed action on the species in light of the overall status of the species, the baseline conditions within the action area and any cumulative effects occurring within the action area.

Effects of the Action: “Confusion regarding application of terms has resulted in time being spent determining how to categorize an effect, rather than simply determining what the effects are regardless of category…. We collapsed the various concepts of direct and indirect effects, and the effects of interrelated and interdependent actions, into the new definition that the effects of the action include all effects caused by the proposed action.”

“The revised definition notes that these effects include “the effects of other activities that are caused by the proposed action.” It includes a distinction between the word “action” which refers to the action proposed to be authorized, funded, or carried out, in whole or in part, by the Federal agency and brought in for consultation with the Services, and “activity” or “activities,” which refer to those activities that are caused by the proposed action but are not included in the proposed action. Under the current definition, these activities would have been considered under either “indirect effects” or “interrelated” or “interdependent” activities. An effect or activity is caused by the proposed action when two tests are satisfied: First, the effect or activity would not occur but for the proposed action, and second, the effect or activity is reasonably certain to occur. “

“Under the first of these two tests, if an effect or activity would occur regardless of whether the proposed action goes forward, then that effect or activity would not satisfy the “but for” test and would not be considered an effect of the action.”

“As a practical matter, application of the “reasonable certainty” standard is done in the following sequential manner in light of the best available scientific and commercial data to determine if incidental take is anticipated: (1) A determination is made regarding whether a listed species is present within the area affected by the proposed Federal action; (2) if so, then a determination is made regarding whether the listed species would be exposed to stressors caused by the proposed action (e.g., noise, light, ground disturbance); and (3) if so, a determination is made regarding whether the listed species' biological response to that exposure corresponds to the statutory and regulatory definitions of take (i.e., kill, wound, capture, harm, etc.). Applied in this way, the “reasonable certainty” standard does not require a guarantee that a take will result, rather, only that the Services establish a rational basis for a finding of take.”

Environmental Baseline: The Services propose a stand-alone definition for “environmental baseline” as referenced in the discussion above in the proposed revised definition for “effects of the action.” The definition for environmental baseline retains its current wording. Moving it to a stand-alone definition clarifies that the environmental baseline is a separate consideration that sets the stage for analyzing the effects of the proposed action on the listed species and critical habitat within the action area by providing the foundation upon which to build the analysis of the effects of the action under consultation.

“It has sometimes been challenging for the Services and Federal agencies to determine the appropriate baseline for those consultations involving ongoing agency actions. The complexities presented in these consultations include issues such as: What constitutes an “ongoing” action; if an ongoing action is changed, is the incremental change in the ongoing action the only focus of the consultation or is the entire action or some other subset reviewed; is the effects analysis different if the ongoing action has never been the subject of consultation as compared to if there is a current biological opinion for the ongoing action; if a change is made to an ongoing action that lessens, but does not eliminate, the harmful impact to listed species or critical habitat, is that by definition a “beneficial action”; and can a “beneficial action” ever jeopardize listed species or destroy or adversely modify critical habitat. Further, the Services request comments as to whether the following language would address these issues: “Environmental baseline is the state of the world absent the action under review and includes the past, present and ongoing impacts of all past and ongoing Federal, State, or private actions and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation, and the impact of State or private actions in the action area which are contemporaneous with the consultation in process. Ongoing means impacts or actions that would continue in the absence of the action under review.””

Programmatic Consultation: “used to evaluate the effects of multiple actions anticipated within a particular geographic area; or to evaluate Federal agency programs that guide implementation of the agency's future actions by establishing standards, guidelines, or governing criteria to which future actions will adhere.”

Applicability: USFWS proposes to add language clarifying that consultation is not required when a proposed action will not negatively affect listed species or critical habitat in any real, or measurable, significant way; or that are beyond the jurisdictional control of the consulting agencies.

Biological Opinions: “USFWS proposes that the Service may adopt all or part of a Federal agency's initiation package or the Services' analyses and findings that are required to issue a permit under section 10(a) of the Act in its biological opinion. This provision would allow the Services to utilize portions of these documents in the development of our biological opinion to improve efficiency in the consultation process and reduce duplicative efforts. Adoption or incorporation by reference is typically done during consultations, and this provision codifies that approach.”

Expedited Consultation: “ Informal consultation has been an available optional process for 30 years and is most often utilized to address proposed actions that are not likely to adversely affect listed species or critical habitat. In contrast, expedited consultations are a new process and likely involve proposed actions that would otherwise go through the regular formal consultation process and require an incidental take statement. This consultation process is proposed to provide an efficient means to complete formal consultation on projects ranging from those that have a minimal impact, to those projects with a potentially broad range of effects that are known and predictable, but that are unlikely to cause jeopardy or destruction or adverse modification. “

Reinitiation of Consultation: “We propose to clarify that the duty to reinitiate does not apply to an existing programmatic land management plan prepared pursuant to the Federal Land Policy Management Act (FLPMA) or the National Forest Management Act (NFMA). when a new species is listed or new critical habitat is designated. In contrast, specific on-the-ground actions that implement the plan are subject to their own section 7 consultations if those actions may affect listed species or critical habitat.”

NEPA Impacts Now Require Mitigation

President Obama has recently issued an important new Memorandum directing Federal agencies to employ mitigation banks to offset impacts to natural resources.

The directive re-emphasizes that agencies should seek to avoid any negative environmental impacts first, then minimize impacts, and finally, only seek compensatory offsets for harm that still occurs if necessary.  Within the limits of existing law, agencies should set ‘no net loss’ and ‘net benefit’ goals that apply to more natural resources.   (CEQ Blog Post)

The following analysis of the impacts of this memorandum are from the law office of Holland and Hart:

"We have entered a new regime in federal natural resource management, one that brings to mind Aldo Leopold’s observation that “Conservation . . . is a positive exercise of skill and insight, not merely a negative exercise of abstinence or caution.” In time, we will have a better sense of what the new regime will mean in practical terms. For now, the natural resource community will want to focus on the various agencies’ efforts to implement the directives. Across the federal government, for months to come, new rules and policies will be under development with implications for an enormous range of decisions affecting natural resources “that are important, scarce, or sensitive, or wherever doing so is consistent with agency mission and established natural resource objectives.”

These directives deserve considerable attention from those active in the natural resource law and policy arenas. There are new rules of the road for resource agency decisions subject to NEPA review, and they may significantly influence implementation of ESA and other resource protection laws. Federal resource planning efforts will likely change to include substantial consideration of “net gain/no net loss” benchmarks. Most fundamentally, the new directives seem likely to change the transactional environment facing developers seeking federal approvals for: infrastructure projects; energy, water, and mineral development; or other activities potentially impacting federal natural resources.

Agencies’ permitting and compliance decisions involve significant elements of subjectivity and uncertainty. The permitting process is often defined by bargaining over the allocation of risk between an agency wary of potentially unforeseen resource impacts and a developer or resource user wary of potentially unforeseen costs or delays. The Presidential and DOI directives can be seen as ratifying and calling for even greater effort by resource agencies to minimize or eliminate the risk of unforeseen impacts on natural resources. In effect, the agencies are being told to bargain harder, demand greater assurances, and accept little or no risk of adverse impacts when rendering decisions potentially affecting natural resources.

The directives raise the bar, but are not entirely one-sided. They encourage agencies to promote conservation banking, stewardship contracts, and other financial-incentive-based tools that generate “credits” that developers can use to offset adverse impacts of proposed projects. The internal logic of the directives appears to be that the new, higher standards for resource mitigation—net gain, or at least no net loss—are realistically achievable because any project’s unavoidable adverse impacts can be offset with conservation credits.

The agencies’ mandate to bargain harder will create difficulties for almost all resource users. To begin with, baseline resource information often lacks the empirical certainty that would make it obvious how to get to a net gain or no net loss. And what is a “net gain”? How big must that be? More challenging, the directives call for “durability” in mitigation, meaning that the quantitative and qualitative relationship of impact to compensation should endure so long as the impact continues. But natural resources change over time. Even resources that once seemed static are now recognized to be mobile as temperature, precipitation, fire, and other variables change across the landscape. The new directives will particularly frustrate those resource users who are not inclined to anticipate nor internalize within their project planning and business judgments the agencies’ resource management goals. Whatever the agencies were bargaining for yesterday, they’ll soon be bargaining for more.

There is something encouraging here for those resource users who approach the regulatory environment with a transactional mindset. The directives’ embrace of compensatory mitigation means that, once the directives have had time to be incorporated into agency procedures, there should be a predictable regulatory “solution” for a project potentially posing the risk of adverse resource impacts. In theory, the ultimate decision about whether - and on what terms - to approve a permit or other authorization should be somewhat less vulnerable to an agency official’s reluctance to countenance unavoidable adverse resource impacts. This is particularly so if the agencies do, in fact, embrace the use of mitigation banks and other credit-generating tools.

The other potential winners from the directives will be private investors in mitigation banks and similar financial structures that produce resource “credits” to exchange for impacts. 

Juridicational Wetlands

 The Clean Water Act (CWA) regulates all of the "navigable" water bodies in the U.S.  The precise definition of navigable waters is important for specifying what impacts may or may not be allowed to the Waters Of The United States (WOTUS).  However, since the inception of the CWA, numerous Supreme Court cases have challenged the definition of WOTUS.  On May 27, 2015, the U.S. Army Corps of Engineers (USACE) and Environmental Protection Agency (EPA) issuing a new definition of WOTUS.  While the new definition is already the subject of numerous lawsuits, it is now the new basis of the CWA.

Graphic from SWCA, The Wire.

So what does the new definition say?  Well, it is pretty straight-forward.  There are just 8 possible cases:  

1. traditional navigable waters

2. interstate waters

3. territorial seas

4. impoundments (of 1 - 3 above and 5 below)

5. tributaries

6. adjacent waters

7. five special groups of similarly situated waters

8. case-specific significant nexus waters  

For more information, see this excellent article in SWCA's The Wire.

San Diego T & E Species

The U.S. Fish and Wildlife Service has a new website to identify species of conservation concern.  This system is easy enough that anyone can search for and learn about the Threatened and Endangered species in their county.

 For example, here is the list for San Diego County, California:

Supreme Court hears arguments over GMO Alfafa

http://gmo-journal.com/index.php/2010/05/18/ge-alfalfa-at-the-supreme-court-analyzing-oral-arguments/

What are the Laws of Ecology?

PROVISIONAL: (thanks to ecolog subscriber Dr. KC Jensen)

1. There is No Such Thing as a Free Lunch

2. Mother Mature Knows Best

3. Everything Has to Go Somewhere

4. Everything is Connected to Everything Else

Letter of the Week: 1872 Mining Law

Dear Senator,

The 1872 Mining Law needs to be changed. It consistently favors the interests of large, often foreign companies over the interests of local Arizona landowners. It subsidizes the give-away of over $1 billion in publicly-owned minerals every year.

My family and I are directly affected by dust blowing off the numerous open-pit mines in Pima county, and what really irks me is the thought that my tax dollars are funding this irresponsible exploitation of our God-given natural heritage.

This land is held in trust by our government so that everyone can use it, but when these companies come in with their mines they just use it up. Although we often hear that these mines are creating jobs in our local communities, the reality is that these corporations will leave us high and dry when the minerals run out.

We need an updated mining law that considers the valid interests of local landowners as well as the interests of economic development. I plan to watch your action on this issue as a kind of litmus test for who you really support; is it the local landowners trying to make a living in Arizona or is it the big corporate interests at their government-sponsored pig trough?