June Vol. 11, No. 2

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1 Vol. 11, No. 2 ACTING ON CONGRESSIONAL INVITATION, OBAMA ADMINISTRATION REINSTATES ORIGINAL ESA CONSULTATION REGULATIONS AND PLEDGES COMPREHENSIVE REVIEW Sandra A. Snodgrass Holland & Hart LLP On May 4, 2009, the Departments of the Interior and Commerce published a final rule reinstating the Endangered Species Act (ESA) Section 7 consultation regulations that were in effect prior to the revised consultation regulations issued by the Bush administration in December See Interagency Cooperation Under the Endangered Species Act, 74 Fed. Reg. 20,421 (May 4, 2009). ESA Section 7 requires that each federal agency consult with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service, as appropriate, to ensure that any action authorized, funded, or carried out by such agency such as a Bureau of Reclamation water supply project or the Bureau of Land Management s issuance of a right-of-way is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. 16 U.S.C. 1536(a)(2). The short-lived December 2008 revisions had (1) redefined several terms central to the consultation process, (2) allowed federal agencies, in certain circumstances, to decide without concurrence from the U.S. Fish and Wildlife Service or the National Marine June 2009 Fisheries Service that a project was not likely to adversely affect ESA-listed species or designated critical habitat, and that therefore formal consultation was not required, and (3) established timeframes for informal consultation. See Interagency Cooperation Under the Endangered Species Act, 73 Fed. Reg. 76,272 (Dec. 16, 2008) (revising a number of provisions within 50 C.F.R. part 402). The revised regulations also provided that an individual sources emissions of greenhouse gases and contribution to climate change would not trigger consultation requirements. Id. at 76,282. The May 4 rule withdraws all of these revised regulations, returning to the status quo ante pending a comprehensive review of the Section 7 consultation regulations. 74 Fed. Reg. at 20,422. The withdrawal does not affect any actions taken prior to the May 4 effective date of the rule. Id. The withdrawal of the revised consultation regulations does not come as a surprise; President Obama issued a memorandum to federal agencies in March 2009 requesting that they exercise their discretion to follow the prior longstanding consultation and concurrence practices instead of the Bush administration s revised rules. Available at the_press_office/memorandum-for-the-heads-of- Executive-Departments-and-Agencies/. The May 4 final rule was also facilitated by the 2009 Omnibus Appropriations Act. There, Congress authorized the Secretaries of the Interior and Commerce to, within 60 days, withdraw the final rule revising the consultation regulations without following normal notice and comment procedures under the Administrative Procedure Act and to reinstate the prior consultation 1

2 Endangered Species Committee Newsletter Vol. 11, No. 2, June 2009 Paul S. Weiland, Editor In this issue: Acting on Congressional Invitation, Obama Administration Reinstates Original ESA Consultation Regulations and Pledges Comprehensive Review Sandra A. Snodgrass... 1 Obama Administration Retains Endangered Species Act Conservation Rule for Polar Bears Ryan P. Steen and Jeffrey W. Leppo... 2 Ninth Circuit Upholds NOAA Fisheries Listing and 4(d) Rule under 2005 Hatchery Listing Policy Sue Meyer... 4 Service Delists Two Distinct Population Segments of the Gray Wolf Anne Arnold... 6 Government Accountability Office Releases Report Regarding Section 7 Consultation and Monitoring Paul Weiland... 9 Copyright American Bar Association. All rights reserved. The views expressed herein have not been approved by the ABA House of Delegates or the Board of Governors and, accordingly should not be construed as representing the policy of the ABA. This newsletter is a publication of the ABA Section of Environment, Energy, and Resources, and reports on the activities of the committee. All persons interested in joining the Section or one of its committees should contact the Section of Environment, Energy, and Resources, American Bar Association, 321 N. Clark St., Chicago, IL regulations. See Omnibus Appropriations Act, 2009, H.R. 1105, 429 (Mar. 11, 2009). As part of the comprehensive review referenced in the May 4 rule, the Secretaries request public comments to help identify potential options and improvements to the section 7 regulations that may be appropriate. 74 Fed. Reg. at 20,422. In particular, they have invited comment on numerous aspects of the consultation process, including the applicability of Section 7; the definitions of jeopardy, adverse modification, effects of the action, and action area ; the appropriate standard of causation; the informal consultation process; methods to streamline both formal and informal consultation; flexibility for low effect consultations; formal consultation requirements; programmatic consultations; consideration of effects related to global climate change; incidental take statements; and standards for when reinitiation of consultation is required. Id. The Secretaries are not soliciting comments on the withdrawal of the December 2008 revisions. Id. Comments on suggested improvements to the consultation regulations are due Aug. 3, Id. at 20,421. Sandi Snodgrass is an associate in the Denver office of Holland & Hart LLP whose practice focuses on endangered species and other wildlife, the National Environmental Policy Act, public lands, and wetlands. OBAMA ADMINISTRATION RETAINS ENDANGERED SPECIES ACT CONSERVATION RULE FOR POLAR BEARS Ryan P. Steen Jeffrey W. Leppo Stoel Rives, LLP On May 8, 2009, U.S. Department of the Interior Secretary Ken Salazar announced that he will retain a special rule issued under Section 4(d) of the Endangered Species Act (ESA) that provides for the protection of polar bears (the 4(d) Rule ). See News 2

3 Release, Salazar Retains Conservation Rule for Polar Bears, U.S. Department of the Interior, May 8, 2009, available at 09_News_Releases/050809b.html (News Release). Under the Omnibus Appropriations Act of 2009, Congress granted Secretary Salazar authority until May 10, 2009 to revoke the 4(d) Rule. Secretary Salazar declined to exercise this authority, explaining that the best course of action for protecting the polar bear under the Endangered Species Act is to wisely implement the current rule, monitor its effectiveness, and evaluate our options for improving the recovery of the species. The Secretary s decision does not mark the end of the debate surrounding the 4(d) Rule as it is currently the subject of ongoing litigation in the District of Columbia. But the Secretary s decision clarifies the Obama administration s position that the ESA is not the proper regulatory mechanism for addressing climate change. Section 4(d) of the ESA allows the Services (i.e., the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service) to extend the prohibitions set forth in Section 9(a)(1) of the ESA to species listed as threatened under the ESA and to issue such other regulations as he deems necessary and advisable to provide for the conservation of such threatened species. When the FWS listed the polar bear as a threatened species in May 2008, it issued an interim special rule for the polar bear under Section 4(d). 73 Fed. Reg. 28,306 (May 15, 2008). The interim rule, which became effective immediately, was promulgated at 50 C.F.R (q). The interim rule was issued in final, nearly identical form, in December Fed. Reg. 76,249 (Dec. 16, 2008) (effective Jan. 15, 2009). The final 4(d) Rule implements limits on the application of the take prohibition in three key ways: 1. The 4(d) Rule limits application of the take prohibitions of the ESA to activities occurring within the habitat range of the polar bear. 50 C.F.R (q)(4). The intent and practical impact of this provision is to exclude activities that emit greenhouse gases (GHGs) outside the polar bear s range from the ESA s take prohibition. The 4(d) Rule concludes that there is no causal link between [GHG] emissions and take of specific polar bears. 73 Fed. Reg. at 76, The 4(d) Rule provides that the take prohibitions of the ESA do not apply to activities that comply with the Marine Mammal Protection Act (MMPA). 16 U.S.C et seq. The MMPA sets forth a regulatory scheme for obtaining incidental take authorizations for marine mammals, including polar bears, provided that, among other things, the authorized take has no more than a negligible impact on the affected stock. 16 U.S.C. 1371(a)(5). The MMPA also provides certain statutory exemptions for actions taken in defense of human life and property. See 16 U.S.C. 1371(a)(4)(A), (b) (e), 1379(h)(1). 3. The 4(d) Rule provides that the take prohibitions of the ESA do not apply to activities that comply with the requirements of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). 50 C.F.R (q)(2). CITES and its U.S. implementing regulations monitor and regulate the trade in legally-possessed CITES specimens during international transit. The 4(d) Rule is at the center of numerous lawsuits, all of which have been consolidated in a multi-district action in the United States District Court for the District of Columbia. This litigation has essentially been on hold pending the Secretary s decision on the 4(d) Rule. Now that the Secretary has decided to retain the 4(d) Rule, the litigation will likely proceed according to the current case management schedule, but it is unlikely that the trial court will issue a merits decision on the 4(d) Rule until the first quarter of 2010, at the earliest. In the meantime, activities such as oil and gas exploration and development on and near the North Slope of Alaska in polar bear habitat that receive authorization under the MMPA will not be required to obtain take authorization under the ESA. Additionally, GHG emitting activities outside of the polar bear s range will not be required to consult over the effects of 3

4 their effects on the polar bear under Section 7 of the ESA. In retaining the 4(d) Rule, Secretary Salazar asserted that the Endangered Species Act is not the proper mechanism for controlling our nation s carbon emissions, and called for Congress to enact comprehensive climate change legislation. With this decision, the Obama administration has aligned itself with those who have maintained that the ESA is not the proper regulatory tool for addressing climate change. Finally, the administration s endorsement of the 4(d) Rule has significant implications for a series of additional proposed ESA listings. The Pacific walrus, several Arctic seal species, and the American pika have all been proposed for listing under the ESA based upon climate change. The polar bear 4(d) Rule, now sanctioned by two separate administrations, provides a practical model for addressing the protection of additional species listed as threatened due to climate change. Ryan P. Steen is an attorney in the Resources, Development and Environment practice group at Stoel Rives LLP. He focuses his practice on environmental, natural resources, wildlife and water law, and assists clients with litigation, permitting, and counseling matters. Jeffrey W. Leppo is a partner in the the Resources, Development and Environment practice group at Stoel Rives LLP. His practice is focused on environmental, wildlife and natural resources law, and related complex litigation, for oil and gas exploration and development, commercial fisheries, pipeline operators and energy producers, public ports, timber interests, mining interests, private landowners, and real estate developers. VISIT US ON THE WEB! To learn more about the Endangered Species Committee, please visit: endangered/home.html NINTH CIRCUIT UPHOLDS NOAA FISHERIES LISTING AND 4(D) RULE UNDER 2005 HATCHERY LISTING POLICY Sue Meyer Nossaman LLP On March 16, 2009, the United States Court of Appeals for the Ninth Circuit issued its opinion on appeals from both environmental and industry interests challenging the National Marine Fisheries Services (NMFS) decision, to downlist to threatened and issue a 4(d) rule for an evolutionarily significant unit (ESU) of Upper Columbia River steelhead, Oncorhynchus mykiss, in accordance with its 2005 Hatchery Listing Policy (HLP). In Trout Unlimited v. Lohn, the Ninth Circuit found in favor of NMFS on all claims in its application of the HLP s listing policies in the steelhead final rule. Specifically, the court upheld NMFS consideration of the effects of hatchery fish on the natural fish in the ESU in the status review and as a part of the listing determination, as well as issuance of a 4(d) rule, which extended the section 9 take prohibition to only natural fish and hatchery fish with an intact adipose fin. The Endangered Species Act (ESA) defines species to include, in pertinent part, any subspecies of fish... and any distinct population segment of any species of vertebrate fish... which interbreeds when mature. 16 U.S.C. 1532(16). The ability to designate and list below the order of subspecies allows NMFS to provide different levels of protection to different populations of the same species. The ESA does not define the term DPS. Rather, as discussed below, NMFS issued regulations defining the term. After deciding whether a population of fish constitutes a species or subspecies (or DPS), NMFS must decide whether to list the species. The species may be listed as threatened or endangered. 16 U.S.C. 1533(a)(1). The ESA lists five factors that NMFS must evaluate to determine whether listing is appropriate and, if so, at what level. An endangered species is in danger of extinction throughout all or a significant portion of its range. Id. 1532(6). A threatened species is likely to become an endangered species within the 4

5 foreseeable future. Id. 1532(20). Listing determinations must be based on the best available science. A species listed as endangered benefits from the prohibitions set forth in Section 9(a)(1) of the ESA, whereas a species listed as threatened only benefits from the same protections if they are imposed by regulation under Section 4(d). Id. 1533(d). Section 4(d) allows NMFS to determine whether to impose the prohibitions set forth in Section 9(a)(1) of the ESA. In effect, 4(d) rules allow NMFS to authorize the take of some number of individuals of the threatened species or DPS. NMFS first listed the ESU of steelhead on the Upper Columbia River running from Yakima River to the U.S./ Canada border in Only the natural fish were listed. In 2004, NMFS revised the ESU to include natural steelhead and several stocks of hatchery steelhead (as well as co-occurring resident rainbow trout populations). NMFS rejected petitions filed by plaintiff Trout Unlimited (Trout) to split hatchery fish and natural fish into separate ESUs. NMFS then downlisted the ESU to threatened and shortly thereafter issued a Section 4(d) rule limiting Section 9 protections to natural fish and hatchery fish with an intact adipose fin. 70 Fed. Reg. 37,160 (June 28, 2005). For NMFS, defining a DPS has meant having to come to terms with how to treat fish that are born in hatcheries and released into the wild for listing purposes. Over the past two decades, NMFS has grappled with this issue through a series of listing policy guidance regulations that have met with mixed results in the courts. On June 28, 2005, NMFS published the HLP. Although the HLP was published after publication of the final listing rule for the steelhead, NMFS used the policies set forth in the HLP in its status review of steelhead. Consistent with the district court s decision in Alsea Valley Alliance v. Evans, 161 F. Supp. 2d (D. Or. 2001) (Alsea I) invalidating NMFS action listing only the natural population of an ESU of coho salmon that consisted of both natural and hatchery fish, the HLP provides that hatchery fish that are a part of the same ESU as natural fish will be included in any listing of the ESU. 70 Fed. Reg. 37,204, 37,215 (June. 28, 2005). The HLP also introduced several new listing policies: (1) the status of the ESU as a whole rather than the status of the natural fish only will be considered to determine whether the ESU should be listed, with primary emphasis on viability of natural, self-sustaining populations, (2) the contribution of hatchery fish helpful and harmful to the conservation of natural fish will be taken into account in listing determinations, and (3) 4(d) regulations may be promulgated to allow for take of certain hatchery fish in a threatened ESU. Using the arbitrary and capricious standard of review, the court first considered Trout s argument that NMFS had improperly rejected its petition to split the ESU into hatchery fish and natural fish because, as NMFS observed in the original 1997 listing determination, hatchery fish and hatcheries harm wild populations. The court disagreed. The statutory structure suggests that the determination of an ESU is not the proper stage at which to consider the threats hatchery fish pose to wild fish or threats at all; that consideration is statutorily relegated to the listing stage as one of the five factors. Nor did NMFS ignore best available science when it rejected Trout s petition according to the court. Thus, the Ninth Circuit affirmed the lower court s ruling and upheld NMFS rejection of Trout s petition to split the ESU. The court turned next to the downlisting and related issues raised against the HLP. Trout had argued that by taking into account hatchery fish in the listing process the numbers were artificially inflated, thereby creating the false appearance of abundance. The district court agreed with Trout s position and held that by basing its listing determination on consideration of the entire ESU as sanctioned in the HLP NMFS improperly shifted its focus away from the ESA s central purpose, the preservation of natural populations. The Ninth Circuit disagreed and overturned the lower court s ruling against NMFS on the downlisting. The 5

6 downlisting process, the court explained, was not as simplistic as Trout had portrayed it. Rather, the status review followed the policy guidance in the HLP which provides that hatchery fish will be included in assessing an ESU s status in the context of their contributions to conserving natural self-sustaining populations. 70 Fed. Reg. at 37,215. The HLP lists a number of factors that NMFS may consider to determine the positive and negative effects hatchery fish have on natural fish, such as their contribution to genetic diversity. The court concluded that the HLP s policy of assessing the status of an entire ESU and the corresponding downlisting were decisions based on the best available science and consistent with the ESA s central focus on the conservation of natural populations. Likewise, contrary to Intervenors Building Industry Association of Washington s (Building Industry) argument, the listing review process that distinguishes between hatchery and natural fish is consistent with the ESA. Intervenors had attempted to use Alsea I to argue that once an ESU is defined to include hatchery and natural fish, the two populations must receive equal treatment throughout the listing process. That is, NMFS may not, as provided in the HLP, take into consideration the effects hatchery fish have on naturally self-sustaining populations. Importantly, the court notes, citing the Chevron deference owed NMFS listing determinations and the HLP, that by leaving an explicit gap for agency-promulgated regulations, the ESA expressly delegates authority to NMFS to decide how such listing determinations should be made. The Ninth Circuit, thus, affirmed the lower court s denial of summary judgment to Building Industry on this claim. The court also affirmed the lower court s denial of summary judgment to Building Industry on its challenge to the 4(d) rule on the grounds that the ESA requires that all fish hatchery and natural in the ESU must be receive equal protection (or not) under the 4(d) rule. The court reasoned that section 4(d) affords NMFS broad discretion to issue regulations for the conservation of threatened species. Therefore, the HLP policy acknowledging that not all hatchery stocks that are part of an ESU are of equal value for use in conservation in recovery and issuance of the 4(d) rule to allow the destruction of individuals in select stocks 6 within the steelhead ESU was a reasonable exercise of judgment and not in contravention of the ESA. Sue Meyer is an associate in the Land Use and Natural Resources Practice Group at Nossaman LLP. She focuses principally on endangered species counseling and litigation and has assisted numerous clients with the development of multiple species habitat conservation plans. SERVICE DELISTS TWO DISTINCT POPULATION SEGMENTS OF THE GRAY WOLF Anne Arnold Briscoe Ivester & Bazel LLP On April 2, 2009, the U.S. Fish and Wildlife Service (Service) established and delisted two distinct population segments (DPS) of the gray wolf (Canis lupus) in the Northern Rocky Mountain (NRM) and Western Great Lakes (WGL) regions of the United States. 74 Fed. Reg. 15,070; 74 Fed. Reg. 15,123 (Apr. 2, 2009). The Obama administration adopted this Bush-era policy that will strip these wolf populations of any protection under the Endangered Species Act (ESA). In his announcement, Department of the Interior Secretary Ken Salazar stated that the delisting rule is a supportable one.... Scientists have concluded that recovery has occurred. The ESA provides a statutory framework for conserving threatened and endangered species and their habitats. 16 U.S.C 1531 et seq. Under the ESA, the term species means any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature. 16 U.S.C (16). A species may be listed as threatened or endangered if its continued existence is threatened under one or more of the five factors described in section 4(a)(1)(A)-(E) of the ESA. A species or a DPS of a species may be delisted if the best scientific and commercial data available substantiate that the species is neither endangered nor threatened because of (1) extinction, (2) recovery, or (3) error in the

7 original data used for classification of the species. 50 C.F.R (d). The general policy behind the use of DPSs as a regulatory tool is to allow for protective measures before the occurrence of largescale declines that would necessitate listing a species or subspecies throughout its entire range. 61 Fed. Reg (Feb. 7, 1996). In 1978, the gray wolf was listed as threatened in Minnesota and endangered throughout the lower fortyeight states and Mexico. 43 Fed. Reg (Mar. 9, 1978). On April 1, 2003, the Service published a rule that divided the lower forty-eight states into three DPSs, retaining the experimental-nonessential population areas in the Northern Rockies, but elsewhere downlisting the eastern and western gray wolf DPSs from endangered to threatened and indicating that recovery objectives for both had been met. 68 Fed. Reg. 15,804-15,875 (Apr. 1, 2003). However, district courts in Oregon and Vermont vacated and enjoined the rule on the basis that it concentrated on preventing extinction of the wolves rather than unveiling a comprehensive range-wide strategy for wolf recovery (Defenders of Wildlife v. Norton (D. Or. 2005) JO; National Wildlife Federation v. Norton (D. Vt. 2005) 1:03- CV-340). On Feb. 8, 2007, the Service published a new rule identifying the WGL region of the gray wolf, removed this DPS from the endangered species list, removed designated critical habitat for the gray wolf in Minnesota and Michigan, and removed special regulations for the gray wolf in Minnesota. 72 Fed. Reg (Feb. 8, 2007). That same day, the Service issued a proposed rule establishing and delisting the NRM DPS. 72 Fed. Reg (Feb. 8, 2007). On April 16, 2007, the Humane Society of the United States, Help Our Wolves Live, Animal Protection Institute, and Friends of Animals and Their Environment sued the U.S. Department of the Interior and the Service over the February 2007 rule regarding the WGL DPS, claiming that the Service violated the ESA and acted arbitrarily and capriciously by simultaneously designating and delisting the WGL DPS. On Sept. 29, 2008, the U.S. District Court for the District of Columbia ruled in favor of the plaintiffs, vacated the final rule, and remanded it back to the Service. The Humane Society of the United States, 7 et al., v. Kempthorne (2008) Civil Action No (PLF). The court agreed with the plaintiffs that the ESA is ambiguous on the issue of whether a DPS can be identified and delisted simultaneously pursuant to sections 4(a)(1) and 4(c)(1) of the ESA and, held that therefore, the Service should have provided an explanation for their interpretation of the ESA. The Service republished its rule on April 2, 2009 in response to the court s September ruling. In its new rule, the Service provided additional justification as to why simultaneously identifying and delisting DPSs of currently listed species is consistent with the ESA. In effect since May 4, the rule reinstates the previouslyidentified WGL DPS and again removes that DPS from the list of endangered species. The WGL DPS includes all of Minnesota, Wisconsin, and Michigan; the eastern half of North Dakota and South Dakota; the northern half of Iowa; the northern portions of Illinois and Indiana; and the northwestern portion of Ohio. The remainder of the rule is substantially similar to the previous rule vacated by the court in form and substance, including the biological and ecological basis for its conclusions. The Service concludes that the threats to the gray wolf within the boundary of the WGL DPS have been eliminated, as evidenced by a population that is stable or increasing in Minnesota, Wisconsin, and Michigan, and which greatly exceeds the numerical recovery criteria established in the gray wolf Recovery Plan. The rule notes that the Recovery Plan s two key delisting criteria have been met: the assurance of the survival of the wolf in Minnesota and the existence of at least one viable wolf population within the historical range of the eastern timber wolf outside of Minnesota and Isle Royale, Michigan. On April 2, the Service issued a second rule establishing and delisting the NRM DPS, except in Wyoming. The NRM DPS encompasses the eastern one-third of Washington and Oregon, a small part of north-central Utah, and all of Montana, Idaho, and Wyoming. The Service has maintained the endangered listing for gray wolves in Wyoming because it is not convinced that Wyoming law or its wolf recovery/management plan will adequately conserve the wolves there. The minimum recovery goal for the remaining NRM DPS is a wolf population that never falls below thirty or more breeding pair

8 comprising some 300+ wolves in a metapopulation (a population that exists as partially isolated sets of subpopulations) with genetic exchange between subpopulations. This wolf population has exceeded its numerical, distributional, and temporal recovery goals every year since In particular, the states of Montana and Idaho have made strong commitments to maintain wolf populations well above minimum recovery levels. The Service anticipates that the NRM population will contain over 1,200 wolves at its low point in mid-winter Conservation groups have already come forward to challenge the Service and its rule establishing and delisting the NRM DPS. Defenders of Wildlife, et al., v. Salazar, Case No. CV M-DWM filed 6/2/ 09, U.S. District Court for the District of Montana. Defenders of Wildlife believes that the wolf populations in the NRM and WGL regions are not yet fully recovered, and Defenders has challenged the NRM delisting decision in court, seeking to restore endangered species protections for wolves there. The group asserts that Under the delisting plan and state law, up to 2/3 of current populations could be killed. While the debate between the Service and environmental groups winds its way through the courts, gray wolf hunting has resumed in these two geographic regions in accordance with applicable state laws. Anne Arnold is an attorney focusing on land use, environmental, and natural resources law with Briscoe Ivester & Bazel, LLP in San Francisco. SECTION PUBLICATIONS AVAILABLE ONLINE AT Section members are able to view archived copies of the magazine Natural Resources & Environment, the newsletter Trends, and The Year in Review in.pdf format in the Section Members Only portion of the Section Web site at The online version of The Year in Review contains all chapters found in the paper copy. Past editions dating back to 2003 can be found in the archives page. Natural Resources & Environment online contains all articles found in the paper copy. Past issues dating back to 2002 can be found in the archives page. Trends online contains all articles found in the paper copy. Past issues dating back to 2006 can be found in the archives page. As a Section member you have access to view these publications after logging onto the Web site with your ABA Member ID number and password. LIKE TO WRITE? The Endangered Species Committee welcomes the participation of members who are interested in preparing this newsletter. If you would like to lend a hand by writing, editing, identifying authors, or identifying issues please contact the editor Paul Weiland at (949) or pweiland@nossaman.com. 8

9 GOVERNMENT ACCOUNTABILITY OFFICE RELEASES REPORT REGARDING SECTION 7 CONSULTATION AND MONITORING Paul Weiland Nossaman LLP In May 2009, the Government Accountability Office (GAO), which is the investigative arm of Congress, released a report entitled The U.S. Fish and Wildlife Service has Incomplete Information about Effects on Listed Species from Section 7 Consultations. The report is available on the GAO Web site: gao.gov/new.items/d09550.pdf. The report was prepared at the request of members of Congress for the purpose of determining the extent to which the U.S. Fish and Wildlife Service (Service) tracks (1) monitoring reports provided to it pursuant to the Joint Consultation Regulations, 50 C.F.R. pt. 402 and incidental take statements it has issued, and (2) cumulative take based on information contained in such reports. The GAO reviewed interviewed staff in eleven western states, reviewed 128 consultation files in five offices, and analyzed twenty-three species in detail in order to gather data on which to base its findings. Based on this review, the GAO concluded that the Service has neither the means to effectively track the monitoring reports it requires nor to assess compliance by action agencies and applicants with monitoring requirements. Additionally, the GAO concluded that the Service lacks a systematic method for tracking cumulative take of most listed species. With only few exceptions, the GAO found that the Service relied on individual biologists to maintain crucial species information. The report contains two recommendations designed to strengthen institutional knowledge at the Service: (1) develop a method for systematically tracking all monitoring reports, and (2) continue to develop existing databases to enable systematic tracking of cumulative take of species subject to consultation. The Service concurred with the findings and recommendations of the GAO. At the same time, according to the report, Service managers and biologists do not consider tracking monitoring reports to be a high priority for a number of reasons. These reasons include their substantial workload and their belief that there is greater value minimizing and preventing take through informal consultation than with following up on completed actions. Paul Weiland is chair of the Land Use and Natural Resource Practice Group at Nossaman LLP. ABA SECTION OF ENVIRONMENT, ENERGY, AND RESOURCES Calendar of Section Events State and EPA Perspectives on Environmental Issues in Region 5 July 8 9, 2009 Chicago ABA Annual Meeting July 30 Aug. 4, 2009 Chicago 17th Section Fall Meeting Sept , 2009 Baltimore ABA Midyear Meeting Feb. 3 9, Orlandao 28th Annual Water Law Conference Feb , 2010 San Diego 39th Annual Water Law Conference March 18 21,2010 Salt Lake City For more information, see the Section Web site at 9

10 From ABA Publishing and The Section of Environment, Energy, and Resources Global Climate Change and U.S. Law Michael B. Gerrard, Editor Because global climate change presents extraordinary challenges to the environment and the economy of United States as well as those of other nations, the debate about how to effectively implement more climate-friendly policies is sure to continue and amplify. The scientific case for strong action is becoming more compelling every month, and opinion polls show that the American public increasingly agrees. The law will play an important part in developing mechanisms to protect the climate, such as conserving energy, using renewable sources of energy, and implementing emission caps and trading programs. Global Climate Change and U.S. Law provides comprehensive coverage of the country s law as it relates to global climate change. After a summary of the factual and scientific background, Part I outlines the international and national legal framework of climate change regulation and associated litigation. Part II describes emerging regional, state and local actions, and includes a 50-state survey. Part III covers issues of concern to corporations, including disclosure, fiduciary duties, insurance, and subsidies. Part IV examines the legal aspects of efforts to reduce greenhouse gases, such as voluntary efforts, emissions trading, and carbon sequestration. Global Climate Change and U.S. Law includes key resource aids, including a glossary of climate related terms; a list of acronyms; extensive endnotes; and a comprehensive index pages 7x10 paperback Product Code: Regular Price: $59.95 Section of Environment, Energy, and Resources Member Price: $49.95 TO ORDER ABA BOOKS, CALL OR VISIT THE ABA PUBLISHING WEB SITE AT QUESTIONS? SERVICE@ABANET.ORG 10