The Environmental Protection Agency (EPA) is adding new stakeholder input procedures to its pesticide registration review process and consultations under the Endangered Species Act (ESA), including a broader role for the U.S. Department of Agriculture (USDA). EPA released a paper discussing these changes entitled, “Enhancing Stakeholder Input in the Pesticide Registration Review and ESA Consultation Processes and Development of Economically and Technologically Feasible Reasonable and Prudent Alternatives.” The paper was put together by the EPA, the USDA, the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (USFWS).

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The EPA, Department of Agriculture, the National Marine Fisheries Service and the U.S. Fish and Wildlife Service have released a draft proposal entitled, “Proposal for Enhancing Stakeholder Input in the Pesticide Registration Review and ESA Consultation Process and Development of Economically and Technologically Feasible Reasonable and Prudent Alternatives.” The proposal emphasizes coordination across federal agencies for pesticide reviews, and expands the role of the USDA and the pesticide user community to provide current pesticide use information to inform and refine EPA’s ecological risk assessments. It would also alter the pesticide registration process as it calls for “focus” meetings at the beginning of the registration review for each pesticide in order to clarify current uses and label directions and requires formal ESA consultations later in the review process. The draft plan will be open for public comment for 60 days upon publication in the Federal Register.

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On June 1, 2012, the Ninth Circuit Court of Appeal ruled that the U.S. Endangered Species Act (ESA) requires the U.S. Forest Service to consult with federal wildlife agencies prior to allowing mining activities to proceed under a Notice of Intent (NOI) in critical habitat of a listed species.  Specifically, in Karuk Tribe of California v. U.S. Forest Service, the Court held that approval of an NOI constitutes an “agency action” under section 7 of the ESA because it involves an affirmative, discretionary decision about whether, and under what conditions, to allow mining to proceed under a NOI (the full opinion available at http://www.ca9.uscourts.gov/datastore/opinions/2012/06/01/05-16801.pdf).  Furthermore, when mining activities that may cause a disturbance to surface resources are conducted in critical habitat of a listed species, such activities “may affect” a listed species or its critical habitat as that term is used in the ESA.  However, the Court recognized that informal consultation, rather than formal consultation, would likely be required for a NOI.  The lawsuit arose from the approval of four NOIs that allowed motorized sluicing and mechanical suction dredging along the Klamath River. 

Today, the United States Supreme Court, in Sackett v. U.S. Environmental Protection Agency, held that a compliance order issued by the U.S. Environmental Protection Agency (EPA) for alleged violations of the Clean Water Act (CWA) was a “final agency action” under the Administrative Procedure Act (APA) and was judicially reviewable as the CWA does not preclude judicial review under the APA.  Click on the following link for a copy of the full opinion:  http://www.supremecourt.gov/opinions/11pdf/10-1062.pdf

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On May 15, 2008, the polar bear was listed as threatened under the Endangered Species Act due to loss of sea ice habitat caused by climate change, oil and gas operations, subsistence harvest, shipping, and tourism. After much debate, on November 23, 2010, the U.S. Fish and Wildlife Service designated more than 187,000 square miles of barrier islands, on-shore denning areas, and offshore sea-ice in the Arctic as critical habitat for the polar bear. Five U.S. Air Force Radar Sites are exempt from the final rule based on their Integrated Natural Resource Management Plans, which include measures to protect polar bears occurring in habitats within or adjacent to these facilities. In addition, the Native communities of Barrow and Kaktovik were excluded from the final designation. All existing manmade structures (regardless of land ownership status) are not included in the final critical habitat designation.

For a copy of the final rule designating the habitat, click on the following link: http://www.fws.gov/home/feature/2010/pdf/Polar_Bear_Critical_Habitat_Designation_11-22-2010OFR.pdf 

On August 25, 2010, the U.S. Court of Appeals for the Ninth Circuit ruled in Northern California River Watch v. Wilcox (Case No. 08-15780) that privately-owned wetlands adjacent to navigable waters of the United States do not qualify as “areas under Federal jurisdiction” for purposes of the Endangered Species Act (16 U.S.C. § 1531 et seq., the “ESA”). Accordingly, because the ESA only prohibits the take of endangered plant species in “areas under Federal jurisdiction,” the Court’s ruling means that the ESA does not prohibit the take of endangered plants on privately held wetlands, even where those wetlands are subject to the jurisdiction of the U.S. Army Corps of Engineers (the “Corps”). The wetlands at issue in Northern California River Watch were adjacent to “navigable waters” as defined in the Clean Air Act (33 U.S.C. § 1251 et seq.), and therefore any development in those wetlands were within the permitting jurisdiction of the Corps. But the Court found a distinction between Corps jurisdiction and the reach of the ESA.

In Northern California River Watch, developers seeking to develop private property in Sebastopol, California and scientists from the California Department of Fish and Game removed an endangered Sebastopol meadowfoam plant from a wetland on the property. An environmental group sought to prosecute the developers and CDFG staff for an illegal “take” under the ESA, but the Court held the ESA’s take provisions were inapplicable because the private wetland was not an “area under Federal jurisdiction.” The Court noted in particular that extending the reach of the ESA in such a manner risks going down a slippery slope – “areas under Federal jurisdiction” could potentially be read to include land anywhere within the country’s borders. The Court found no support in the ESA for extending the “take” jurisdiction of the U.S. Fish and Wildlife Service (the “Service”) in such a manner. For now, the Court held that “areas under Federal jurisdiction” include lands under the control of the federal government through ownership, leasehold-estates or conservation easements, but not wetlands adjacent to navigable waters.

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On Monday, July 12, Interior Secretary Ken Salazar again ordered a pause in deepwater drilling, a moratorium that applies to all drilling from floating rigs.  This order is suspected to render moot pending litigation concerning a like moratorium that was issued in May.  For more information, see http://www.politico.com/morningenergy/ or contact Renee Guzman-Simon at renee.guzman-simon@alston.com. 

On August 5, 2010, the California Fish and Game Commission will consider whether to accept a petition submitted by the Center for Biological Diversity to list as endangered under the California Endangered Species Act two species of the mountain yellow-legged frog, one that lives in the mountains of Southern California and the other in the Sierra Nevada. If the petition is accepted, the Commission will initiate a year-long formal status review of both of the species. Public comments to the can be provided at the August 5th meeting; written comments should be sent to the Commission by July 26.

The southern mountain yellow-legged frog is listed under the federal Endangered Species Act and the Sierra species is a candidate for listing under the federal Endangered Species Act.

A link to the Center for Biological Diversity petition is provided here.

Never mind that it’s lined in concrete and dry for up to five months of the year, the Los Angeles River has received a huge boost in its image and its legal status. On July 7, 2010, U.S. EPA Administrator Lisa P. Jackson designated the river as a navigable water under the federal Clean Water Act. That decision overturned an earlier draft determination by the U.S. Army Corps of Engineers which found that only four miles of the river could be considered traditionally navigable.

What is navigable under the CWA includes not only water bodies that are navigable in fact but also tributaries of navigable waters and non-navigable intrastate waters whose use or misuse could affect interstate commerce. 40 Fed. Reg. 31,320-21 (1975). That said, a determination of navigability has been complicated since the Supreme Court’s decision in United States v. Rapanos, 547 U.S. 715 (2006), where the court narrowed the definition of navigable waters. As a navigable water now, the Los Angeles River will not need to undergo Rapanos analysis and will be entitled to broader protections under the CWA. The decision will protect not only the river itself but also tributary streams and wetlands that make up the LA River watershed.  EPA and the Army Corps of Engineers will have the ability, along with state and city regulators, to enhance pollution controls for the river.

In a press release related to the decision, EPA explains that "[t]he public regularly uses the river for recreational boating, fishing, educational activities, bird watching, artistic festivals, and other community activities."  Except for those who have lived in Los Angeles since 1960, most people probably do not remember when the Los Angeles River was last used recreationally.  In fact, the river was once a real thriving river without graffiti-ridden concrete barriers.  Destructive flooding prior to the 1930s prompted the Army Corps of Engineers to channelizing the river.  Today, only a few parts of the river are unpaved. (http://dpw.lacounty.gov/wmd/watershed/LA/History.cfm)  In recent years, environmental groups have kayaked the river in protest of the river being regarded primarily as a flood control channel.  http://www.laweekly.com/2008-07-31/news/l-a-river-really-floats-their-boats/).