Apr 212015
 

The Associated Press is reporting that the Fish and Wildlife Service has decided not to list the California-Nevada population of greater sage-grouse as threatened or endangered. Interior Secretary Sally Jewell will formally announce the decision today. (Press release below)

Reported the AP's Scott Sonner:

Jewell said in remarks prepared for a 1 p.m. [Tuesday] announcement with Nevada Gov. Brian Sandoval in Reno that she intends to withdraw the earlier proposal to declare the bistate population threatened. "The collaborative, science-based efforts in Nevada and California are proof that we can conserve sagebrush habitat across the West while we encourage sustainable economic development," she said.

Regulatory docket

All sage-grouse documents published in Federal Register over the years

PRESS RELEASE, April 21, 2015

Successful Conservation Partnership Keeps Bi-State Sage-Grouse Off Endangered Species List

Partnership among California, Nevada, Federal Agencies, & Landowners Helped Conserve Key Habitat, Reduce Threats to Bird

RENO, NV – U.S. Secretary of the Interior Sally Jewell announced that the U.S. Fish and Wildlife Service has determined that the Bi-State population of greater sage-grouse does not require the protection of the Endangered Species Act (ESA).

Secretary Jewell joined with USDA Under Secretary Robert Bonnie, Nevada Governor Brian Sandoval, California Natural Resources Agency Secretary John Laird and other state and local partners to celebrate an extensive and long-term conservation partnership on behalf of the bi-state greater sage-grouse population. Federal, state and private partners have come together to proactively conserve key habitat and significantly reduce long-term threats to this distinct population segment of greater sage-grouse.

A key factor in the decision not to list the bird was the development of the Bi-State Action Plan, a conservation plan developed by partners in the Bi-State Local Area Working Group over the past 15 years and secured with $45 million in funding. This adds to nearly $30 million worth of conservation work USDA and other partners have already completed to implement this plan.

“Thanks in large part to the extraordinary efforts of all the partners in the working group to address threats to greater sage-grouse and its habitat in the Bi-State area, our biologists have determined that this population no longer needs ESA protection,” said Jewell. “What’s more, the collaborative, science-based efforts in Nevada and California are proof that we can conserve sagebrush habitat across the West while we encourage sustainable economic development.”

“This is welcome news for all Nevadans. I applaud the local area working group, private citizens, Tribes, the Nevada Department of Wildlife and our federal partners for their tremendous efforts to develop conservation actions that preclude the need to list the species while still allowing for sustainable economic development,” said Sandoval. “Today’s announcement highlights the critical partnerships that must exist for our conservation strategies to be effective and demonstrate that sage grouse and economic development can coexist in both the bi-state area and across the range of the greater sage-grouse.”

“Together, we’ve worked with ranchers, conservation groups, and local governments in Nevada and California to take proactive steps to restore and enhance sage-grouse habitat while also helping them improve their ranching operations,” Bonnie said. “The decision to not list the bi-state sage-grouse proves this work has paid off.”

“The efforts of the local working group and the partnerships they’ve built over the past decade are truly unprecedented,” said Dan Ashe, U.S. Fish and Wildlife Service Director. “They have set the stage for the next generation of conservation and convinced us that the sage-grouse population has a bright future in the Bi-State region.”

“California is committed to continue working with our public and private partners in implementing this strong, science-based conservation plan into the future,” said Laird. “This partnership between California and Nevada serves as a model for effective conservation of the Greater sage-grouse in other Western states.”

As its name suggests, the Bi-State Distinct Population Segment straddles the California-Nevada border, where biologists estimate that between 2,500 and 9,000 of these ground-dwelling birds inhabit about 4.5 million acres of high-desert sagebrush. Greater sage-grouse are known for the males’ flamboyant springtime mating displays on traditional dancing grounds, also called leks. The birds use a variety of sagebrush habitats throughout the year on private, state and federal lands.

The U.S. Fish and Wildlife Service declared the Bi-State population of greater sage-grouse a Distinct Population Segment (DPS) under the ESA in 2010 because genetic analysis shows it has been separated from other greater sage-grouse for thousands of years and the genetic differences are significant.

In October 2013, the Service proposed listing the Bi-State DPS as threatened under the ESA based on significant population declines due to the loss and fragmentation of its sagebrush habitat from urbanization and associated infrastructure development, encroachment of sagebrush by conifers, and a vicious cycle of wildfire and fire-adapted invasive grasses. These threats, combined with the relatively limited number of birds, the small population size and their isolation, were determined to pose a significant threat to the species.

The Service is withdrawing this proposal in large part because of the success of the Bi-State Action Plan. The plan is the product of the Bi-State Area Local Working Group, comprising federal, state and local agencies and landowners from Nevada and California, which has been pursuing sage-grouse conservation since the early 2000s. Since then, the working group’s technical advisory committee has finalized plans on nearly 80 science-driven conservation projects specifically designed to reduce identified threats and protect the sagebrush-steppe habitat.

The working group’s executive oversight committee has raised more than $45 million in federal and state funding to ensure the projects are implemented and completed over the next 10 years. Long-term projects implemented under the Bi-State Action Plan include population monitoring, urbanization abatement measures, livestock management, wild horse management, pinyon and juniper removal, disease and predation studies and other habitat improvement and restoration projects.

Each of the projects is tied to a specific population management unit within the region, led and funded by a specific agency or partnership, and ranked by the immediacy of the threat to the species.

The comprehensive plan and funding commitments give the Service confidence that effective conservation measures needed to address threats to the species are highly likely to be implemented.

The working group members include private landowners in California and Nevada, Nevada Department of Wildlife, California Department of Fish and Wildlife, Nevada Division of Forestry, California State Parks, University of Nevada Cooperative Extension, nongovernmental organizations such as Nevada Wildlife Federation, Washoe Tribe of California and Nevada, Los Angeles Department of Water and Power, Bureau of Land Management, U.S. Forest Service, Natural Resources Conservation Service, U.S. Geological Survey, Department of Defense and the U.S. Fish and Wildlife Service.

Conservation work on private lands – through easements and habitat restoration – has played an important role in connecting national forests and other public lands, working to keep habitat intact. The U.S. Department of Agriculture’s Natural Resources Conservation Service has already invested nearly $20 million in conservation assistance to ranchers through this effort. This has helped ranchers protect 7,300 acres of key summer habitat through easements, with an additional 4,500 acres in process. This investment has also helped them remove invading juniper and pinyon trees, enhancing nearly 4,000 acres of important sagebrush-steppe habitat.

This summer, the Forest Service will begin treatments to improve sagebrush ecosystem health on 29,000 acres of key habitat for the sage grouse.

The USGS has been a key partner in monitoring the Bi-State population and interpreting data collected to assure the Bi-State partners are using the best science in their conservation efforts.

Along with withdrawing the listing proposal, the U.S. Fish and Wildlife Service is also withdrawing proposed rules under section 4(d) of the ESA and the proposed designation of critical habitat.

The U.S. Fish and Wildlife Service is concurrently conducting a separate status review for the greater sage-grouse across its 11-state range. In 2010, it determined the greater sage-grouse was warranted for protection but that action was precluded by higher priorities. A determination on whether the species still requires protection is due Sept. 30, 2015.

The deteriorating health of the greater sage-grouse and western sagebrush landscapes has sparked an unprecedented and proactive partnership across eleven states to conserve the uniquely American habitat that supports diverse wildlife, outdoor recreation, and ranching and other traditional land uses that form the cornerstone of the Western way of life.

For more detailed information on the Bi-State DPS of the greater sage-grouse and its habitat, along with more information about conservation projects that are being done to help protect this unique species, visit www.fws.gov/greatersagegrouse.

Jan 122015
 

Earlier

Thursday, Jan. 8 - The justices will consider whether to grant the writ of certiorari at a conference on Friday, Jan. 9. Their decision will be announced Monday.

See SCOTUSBlog for briefs and this L.A. Times article by David Savage for background.

The Ninth Circuit opinion petitioners want reviewed is here.

The summary of that Ninth Circuit opinion (which does not constitute any portion of the court's ruling) is below.

The panel reversed in part and affirmed in part the district
court’s judgment invalidating a 2008 biological opinion by
the U.S. Fish and Wildlife Service that concluded that the
Central Valley and State Water Projects jeopardized the
continued existence of the delta smelt and its habitat.

The Central Valley Project and the State Water Project,
operated respectively by the U.S. Bureau of Reclamation and
the State of California, supply water originating in northern
California to agricultural and domestic consumers in central
and southern California. The source of the water—the
estuary at the confluence of the San Francisco Bay and the
Sacramento-San Joaquin Delta—is the lone habitat for the
delta smelt, a threatened species under the Endangered
Species Act (“ESA”). After the Bureau of Reclamation
requested a biological opinion (“BiOp”), the U.S. Fish and
Wildlife Service (“FWS”) concluded that the Central Valley
operations would threaten the delta smelt and, as required by
the ESA, proposed alternatives to ameliorate the effect on the
smelt, including reducing the water exported to southern
California. The plaintiffs-appellees—various water districts,
water contractors, and agricultural consumers—brought suit
under the Administrative Procedure Act against various
federal defendants. The district court concluded that the 2008
BiOp was arbitrary and capricious.

Concerning the scope of the record, the panel held that the
district court overstepped its bounds in admitting additional
declarations from the parties’ experts. The panel held that it
would consider the BiOp and evidence submitted by the
parties that the FWS considered in making its decision, and
the testimony of the four experts the district court appointed
pursuant to Federal Rule of Evidence 706.

Concerning the merits, the panel held that the 2008
BiOp’s reliance on raw salvage figures to set the upper and
lower Old and Middle Rivers flow limits was not arbitrary
and capricious. The panel also held that the 2008 BiOp’s
determination of X2 (the point in the Bay-Delta at which the
salinity is less than two parts per thousand) was not arbitrary
and capricious. The panel further held that the BiOp’s
incidental take statement was not arbitrary and capricious
because it included adequate explanation and support for its
determinations. The panel also held the record supported the
BiOp’s conclusions regarding the indirect effects of project
operations. The panel disagreed with the district court’s
determination that the FWS’s own regulations and the
Administrative Procedure Act required the FWS to explain
that the reasonable and prudent alternatives satisfied 50
C.F.R. § 402.02’s non-jeopardy factors. The panel held that
the FWS’s consideration of these factors could be reasonably
discerned from the record to satisfy any explanation
requirements.

Concerning the cross appeal, the panel held that the FWS
did not violate the ESA by not separating the discretionary
from nondiscretionary actions when it set the environmental
baseline. The panel also held that the Bureau of Reclamation
did not violate the ESA by accepting the 2008 BiOp. The
panel affirmed the district court’s judgment with respect to
the National Environmental Policy Act (“NEPA”) claims, and
held: NEPA does not require the FWS to prepare an
Environmental Impact Statement in conjunction with the
issuance of the BiOp; and the Bureau of Reclamation’s
provisional adoption and implementation of the BiOp
triggered its obligation to comply with NEPA. The panel
affirmed the district court’s order remanding to the Bureau of
Reclamation so that it can complete an Environmental Impact
Statement evaluating the effects of its adoption and
implementation of the BiOp.

Eighth Circuit Judge Arnold dissented from Parts III,
IV.A., IV.B, IV.E, and V.B. of the majority opinion, and
concurred in the rest. Judge Arnold would uphold the district
court’s limited admission of evidence outside the
administrative record as relevant to the Old and Middle River
flow limits and determination of X2, and agreed with the
district court that the FWS’s determination as to the flow
prescription and X2 was arbitrary and capricious. Judge
Arnold disagreed with the basis of the district court’s
conclusion that the non-jeopardy elements must be addressed
in the BiOp or administrative record, but would affirm on the
issue. Finally, Judge Arnold believes the district court should
have found the Bureau of Reclamation independently liable
under the ESA for relying on a legally flawed BiOp.
Judge Rawlinson concurred in the bulk of the majority
opinion, but dissented from Part V.C.2. Judge Rawlinson
disagreed only with the rationale and conclusion that the
Bureau of Reclamation’s adoption and implementation of the
BiOp triggered its obligation to comply with NEPA by
preparing an Environmental Impact Statement that is
generally required under the ESA.

Nov 202014
 

11/20/2014: Collaboration with Federal and State Agencies, Rice Growers and Industry Further Protect Endangered Salmon and Steelhead Trout. (EPA release, and below)

Release Date: 11/20/2014
Contact Information: Cathy Milbourn 202-564-7849 202-564-4355

WASHINGTON —Collaboration among federal and state agencies, rice growers and industry has created federally enforceable restrictions of the pesticide thiobencarb to protect threatened and endangered salmon and steelhead trout in California.

“Working hand-in-hand with our partners we have met the critical environmental and economic goals of protecting threatened and endangered salmon and steelhead trout while maintaining rice production in California,” said Jim Jones, Assistant Administrator for Chemical Safety and Pollution Prevention. “This was achieved by creating a unique approach tailored to specific geographic locations critical to salmon and considering the needs of rice growers. I am proud of our joint efforts to protect threatened and endangered salmon.”

"This is a smart approach to pesticide use that includes important safeguards for protected fish while still allowing growers to care for their crops," said Will Stelle, administrator of NOAA Fisheries' West Coast Region." This demonstrates that we can find balanced and workable solutions through collaboration."

National Oceanic Atmospheric Administration (NOAA) Fisheries, the Environmental Protection Agency (EPA), California Department of Pesticide Regulation (CDPR), the California Rice Commission, and Valent, the manufacturer of the pesticide thiobencarb worked to put these restrictions in place.

The CDPR put in place measures to protect salmon and steelhead trout based on proximity to endangered species habitat according to NOAA Fisheries geographic locations and information from rice growers. After reviewing CDPR’s data on pesticide use and the state’s protective measures, NOAA Fisheries found that thiobencarb use on rice in California would not jeopardize salmon and steelhead trout provided protective measures currently being applied in California are ensured.

EPA is now making California’s geographic use limits federally enforceable by incorporating them into the pesticide label. These use limitations will be effective April 1, 2015. This action represents EPA’s first implementation of a NOAA Fisheries salmon and steelhead trout Biological Opinion. This action was a result of litigation brought against EPA and NOAA Fisheries by the Washington Toxics Coalition (WTC) and the Northwest Center for Alternatives to Pesticides (NCAP). NOAA Fisheries’ final Biological Opinion for thiobencarb and can be found at: www.nmfs.noaa.gov/pr/consultation/opinions/biop_thiobencarb.pdf .

The protection measures included in the NOAA Fisheries’ final Biological Opinion came from several sources including the California enforcement standards, the use limitations on California’s on-line database that recommends protective measures for endangered and threatened species and from the management practices the California Rice Commission receives from the Central Valley Regional Water Quality Control Board.

California is the only state within the range of Pacific salmon and steelhead trout where rice is grown. Thiobencarb is typically used on rice from May 1 through June 15.

View the Thiobencarb use restrictions for endangered salmon in 14 California counties where rice is grown at: www2.epa.gov/endangered-species/thiobencarb-use-limitations.

For more information on endangered species protection bulletins visit Bulletins Live site at: www.epa.gov/oppfead1/endanger/bulletins.htm.