Saving Seafood

Court Battle Underway Over Revamped Endangered Species Rules

October 8, 2019 — A major fight is shaping up in federal court over the Trump administration’s recently issued rules that rewrite how the government implements the Endangered Species Act.

The battle was broadened on Sept. 25 when attorneys general from 17 states, the District of Columbia and New York City filed a challenge to the regulations in U.S. District Court in San Francisco.

In their lawsuit, the plaintiffs, led by California Attorney General Xavier Becerra, contend that the set of three new final rules—published in the Federal Register on Aug. 27 by the U.S. Fish and Wildlife Service and National Marine Fisheries Service— “fundamentally undermine and contradict” Endangered Species Act requirements.

Two of the regulations took effect on Sept. 26. The effective date for the third, which aims to expedite “interagency cooperation”  procedures in listing species as endangered, was extended to Oct. 28.  [View 8/12/19 ENR story on regulations here.]

Among other changes, the rules set a stricter definition of “critical habitat” needed for an endangered species to survive; end a practice of giving threatened species the same protections as endangered species; allow economic factors to be aired—though not as a decisive factor—when agencies determine whether to list a species as endangered.

Read the full story at The Engineering-News Record

Ninth Circuit Orders Feds to Reexamine Army Corps’ Harm to Native Fish

October 8, 2019 — SEAFOOD NEWS — The National Marine Fisheries Service owes an explanation for why it decided that two dams on the Yuba River do not adversely affect threatened Chinook salmon, steelhead and green sturgeon, three Ninth Circuit judges ruled Thursday.

“The Ninth Circuit said you’re entitled to change your mind, but you’ve got to explain yourself and you haven’t,” said Christopher Sproul, an attorney with San Francisco-based Environmental Advocates. “We think this is an excellent win vindicating good government. If agencies are going to have environmental rollbacks, they can’t do it without good reasoning.”

The case marks the latest turn in a long-running dispute over the Army Corps of Engineers’ maintenance of the aging Daguerre Point and Englebright dams, both built before the passage of the Endangered Species Act.

According to environmental groups, the dams have long posed an impediment to migrating salmon. The over 100 year-old Daguerre Point has fish ladders, albeit crude and aging, over which salmon struggle to swim to reach their spawning grounds. But the 260-foot-high Englebright Dam, built in 1941, has no fish ladders at all and completely blocks fish passage to the upper Yuba River.

Since 2002, the service has considered the Corps’ maintenance of the dams an “agency action” that requires the Corps to comply with federal environmental law that protect threatened species.

As late as 2012, the service found the Corps’ activities were likely to harm salmon populations, but it suddenly reversed course in 2014 when it issued a biological opinion and a separate letter concurring with the Corps’ biological assessment for the Englebright Dam and adjoining powerhouses.

The service basically stopped treating the Corps’ activities as an “agency action,” effectively letting the Corps off the hook for its effect on the environment.

The Corps began consulting with the service in 2000 to improve passage, but salmon populations have continued to decline from their failure to mitigate the dams’ impacts.

In 2012, the service found the Corps’ activities were likely to harm the salmon species, but it suddenly reversed course in 2014 when it issued a biological opinion and a separate letter concurring with the Corps’ biological assessment for Englebright and its abutting hydroelectric facilities.

In 2018, the environmental non-profit Friends of the River lost a federal lawsuit over the service’s opinions on summary judgment.

On Thursday, the appellate court panel of Judge J. Clifford Wallace, Carlos Bea and Michelle Friedland ordered the federal court to take another look at the case.

“FOR argues that the Service acted arbitrarily and capriciously in changing its approach to analyzing the dams’ impact on threatened fish because the service did not provide a reasoned explanation for the change. We agree,” the judges wrote.

They found the service offered no explanation for why it changed its position.

“Given the Service’s failure to provide a reasoned explanation for why it changed positions on whether the continued existence of the dams and the hydroelectric facilities abutting Englebright constitute agency action, the district court erred in finding that the Service’s 2014 BiOp and LOC were not arbitrary and capricious,” their ruling says.

The judges also ordered the lower court to revisit Friends of the River’s claim that the Corps improperly granted licenses and easements to third parties to operate the hydroelectric facilities.

“The Ninth Circuit ruling underscores the principle that still exists in this country – that facts and law matter,” Sproul said.

The National Marine Fisheries Service was unavailable for comment late Thursday.

This story was originally published on SeafoodNews.com, a subscription site. It is reprinted with permission. 

The next big California vs. Trump fight is over water and endangered species

October 7, 2019 — Just how far will California Gov. Gavin Newsom go in his high-profile fight with the Trump administration over environmental protections?

The next few months will provide an answer, as Newsom is forced to take a stand on Trump rollbacks in a long-contested battleground—the Northern California  that helps supply more than half the state’s population with drinking  and fills irrigation canals on millions of acres of farmland.

The battle lines are not nearly as clearly drawn as they are on climate change or air pollution, where the state is presenting a fairly unified front against Washington. When it comes to California water, there is no unity.

Some of the state’s biggest and most powerful water agencies are eager for the  to weaken endangered species protections that have cut their delta deliveries. And they want the Newsom administration to go along.

Read the full story at PHYS.org

Feds propose major habitat protections for killer whales

September 20, 2019 — U.S. protections for the waters that a group of endangered orcas call home could soon expand beyond the Seattle area to encompass much of the West Coast, from the Canadian border to central California.

The National Oceanic and Atmospheric Administration issued a proposal Wednesday to increase the critical habitat designation for southern resident killer whales by more than sevenfold under the Endangered Species Act.

Just 73 orcas remain in the Pacific Northwest population, the lowest number in more than three decades. They’re struggling with a lack of chinook salmon, their preferred prey, as well as toxic contamination and vessel noise.

The NOAA proposal calls for an additional 15,626 square miles (40,471 square kilometers) of federally protected habitat that would run from the border with Canada, down south to Point Sur, California.

The designation means federal agencies must ensure that activities they pay for, permit or carry out do not harm the habitat, but it does not generally affect approved recreational or commercial activity such as whale watching and shipping, said Lynne Barre, NOAA Fisheries’ recovery coordinator for the whales.

Read the full story at The Associated Press

Suppressed federal report shows how Trump water plan would endanger California salmon

August 22, 2019 — Federal officials suppressed a lengthy environmental document that details how one of California’s unique salmon runs would be imperiled by Trump administration plans to deliver more water to Central Valley farms.

The July 1 assessment, obtained by the Los Angeles Times, outlines how proposed changes in government water operations would harm several species protected by the Endangered Species Act, including perilously low populations of winter-run salmon, as well as steelhead trout and killer whales, which feed on salmon.

But the 1,123-page document was never released.

Read the full story at The Sacramento Bee

Environmental groups say they’ll sue over green sea turtle habitat

August 15, 2019 — The United States should designate more critical habitat for the endangered green sea turtle, according to three environmental groups that say they will sue the government to force it to declare additional protected areas.

The groups filed a formal notice of intent Tuesday to sue the Fish and Wildlife Service and Acting Secretary of the Interior David Bernhardt. The plaintiffs are the Center for Biological Diversity, Sea Turtle Oversight Protection and Turtle Island Restoration Network.

The lawsuit notification comes as the Trump administration announced major changes to the enforcement and rule-making surrounding the Endangered Species Act. The new rules are to take effect 30 days after the administration publishes them in the Federal Register, but they only will impact new decisions.

Read the full story at UPI

Rep. Bishop Statement on ESA Regulatory Reforms

August 12, 2019 — The following was released by The Office of Congressman Rob Bishop (R-UT):

Today, Ranking Republican Rob Bishop (R-Utah) issued the following statement on the Trump administration’s regulatory reforms to the Endangered Species Act (ESA).

“Under the previous administration, the Endangered Species Act strayed woefully far from its original intent. The Act was morphed into a political weapon instead of a tool to protect wildlife. Secretary Bernhardt’s dogged dedication to righting this wrong is again made apparent today.

“These final revisions are aimed at enhancing interagency cooperation, clarifying standards, and removing inappropriate one-size-fits-all practices. I look forward to supporting efforts in Congress to enshrine these revisions into law.”

Background:

Signed into law in 1973, the original goal of the ESA was to preserve and recover key domestic species from the brink of extinction. However, today the law is failing to achieve its primary purpose of species recovery and instead has become a tool for litigation that drains resources away from real recovery efforts on the state, tribal and local level and blocks job-creating economic activities. Congress last renewed the ESA in 1988, which means it has been over 30 years since any substantial updates have been made.

In 2017 and 2018, the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service sought public input on how the federal government can improve upon ESA’s regulatory framework. The changes finalized today aim to modernize the implementation of the ESA in order to improve collaboration, efficiency, and effectiveness.

To view the final ESA implementation regulation revisions CLICK HERE.

Trump administration moves to ease enforcement of Endangered Species Act regulations

August 13, 2019 — The administration of U.S. President Donald Trump on Monday, 12 August, announced changes in how it would administer the Endangered Species Act, a move it said would add transparency to the process.

However, environmental groups lashed out at the move, claiming it would make it harder to protect species and harm wildlife protections, given it will government officials the chance to consider economic factors when determining if action should be taken to intervene in a species’ management plan.

Read the full story at Seafood Source

2019 Species Recovery Grant Awardees Announced

August 8, 2019 — The following was released by NOAA Fisheries:

Today, NOAA announces the award of $6.5 million to states and tribes through its Species Recovery Grant Program. These grants promote the recovery of species listed as endangered or threatened under the Endangered Species Act.

$3.8 million will support 15 new awards to 11 states and 2 federally recognized tribes. Another $2.7 million will support the continuation of 17 multi-year projects that were approved in prior grant cycles.

States and tribes play an essential role in conserving and recovering species. Threatened or endangered species under NOAA Fisheries’ jurisdiction may spend all or part of their lifecycle in state waters. Successfully conserving these species depends largely on working cooperatively with states and tribes. This year’s funding supports our state and tribal partners in a range of activities, such as:

  • Reducing or removing significant sources of mortality and injury.
  • Assessing and monitoring species status and trends.
  • Engaging the public in conservation of Endangered Species Act-listed species.

Read the full release here

Latest stab at Magnuson-Stevens reauthorization excludes stickiest provision

July 15, 2019 — The Magnuson-Stevens (MSA) reauthorization bill that Alaska Republican Don Young and New Jersey Democrat Jeff Van Drew introduced last week in the US House of Representatives may have a higher mountain to climb in the 116th Congress than it did in the 115th, but it’ll be doing the hike with at least one major weight off its back.

The Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act (H.R. 3697)  does not contain controversial language that would assert that MSA is the top federal statutory authority over the management of the fisheries, giving it power over the Antiquities Act, National Marine Sanctuaries Act, the Endangered Species Act and the National Environmental Policy Act, confirms a review of the bill by Undercurrent News with the help of sources.

That was the language originally contained in HR 200, the bill introduced by Young in January 2017. Following much consternation, especially by ocean conservation groups, the Alaska lawmaker put forth an amendment to have it stricken before receiving a final 222- 93 vote to approve the legislation in July 2018.

Read the full story at Undercurrent News