The Ninth Circuit held that the EPA violated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) by failing to assess adverse effects of a pesticide — Enlist Duo —on monarch butterfly habitat. National Family Farm Coalition v. U.S. Environmental Protection Agency, No. 17-70810 (9th Cir., July 22, 2020).

For decades, glyphosate and 2,4-dichlorophenoxyacetic acid

On April 8, 2020, the U.S. Fish and Wildlife Service announced the finalization of a Candidate Conservation Agreement with Assurances for the monarch butterfly. Authorized by the Endangered Species Act, a CCAA is a voluntary conservation agreement that addresses the conservation needs of at-risk species before they are listed as endangered or threatened. Under the agreement, more than 45 transportation and energy companies and numerous private landowners will participate in monarch butterfly conservation by providing habitat along energy and transportation rights-of-way corridors on public and private lands across the country. This will provide potentially millions of acres of overwintering habitat for the monarch butterfly with the goal that listing under the ESA will become unnecessary. A Perkins Coie team including Don Baur, Bill Malley, Bob Maynard, Anne Beaumont, Cassie Roberts, Christina Bonanni and Sheri Pais represented the Monarch Butterfly CCAA Task Force, which prepared the CCAA.

As reflected in our earlier report (How Developers Can Help Save the Monarch Butterfly and Why They Should), long-term declines in the population of monarch butterflies have significantly increased the probability that they may become extinct in the near future. A U.S. Geological Survey and Scripps Institution of Oceanography study found that the Eastern migratory monarch population declined by 84 percent between 1997 and 2015, indicating a substantial probability of “quasi-extinction” over the next two decades. A quasi-extinct population is one with so few remaining individuals that recovery is effectively impossible — while the remaining numbers may survive for a brief time, the population as a whole will inevitably become extinct.

Research indicates that the most effective way to increase monarch butterfly numbers is to focus on restoration of their breeding habitat in the northern U.S. and southern Canada. Monarchs depend on several species of milkweed to provide food for developing larvae. Milkweed has declined precipitously as a result of a combination of herbicide use, climate change, insecticides (including neonicotinoids) and other factors.
Continue Reading U.S. Fish and Wildlife Service Approves Historic Agreement for Protection of Monarch Butterflies

The U.S. Fish and Wildlife Service and National Marine Fisheries Service has issued a set of three new final rules that substantially revise regulations implementing the Endangered Species Act. The new rules change the criteria and procedures for (1) establishing protections for “threatened” species; (2) the listing and delisting of species and the designation of

California’s Attorney General and Department of Fish and Wildlife have jointly issued an advisory affirming that California law continues to provide robust protections for migratory birds, including prohibiting incidental takes, notwithstanding the recent reinterpretation of the Migratory Bird Treaty Act by the U.S. Department of the Interior.

The advisory notes that three lawsuits (including one

The Federal Court of Appeals for the Ninth Circuit recently affirmed a district court order requiring that the National Marine Fisheries Service, the Corps of Engineers, and the Bureau of Reclamation conduct spill operations and monitoring at dams and related facilities in the Federal Columbia River Power System in order to protect migrating salmon and

In the latest decision in the long-running legal saga over the proposed Newhall Ranch development in Los Angeles County, the U.S. Court of Appeals for the Ninth Circuit upheld the Army Corps of Engineers’ EIS and Section 404 permit, giving substantial deference to the Corps’ decisionmaking. Friends of the Santa Clara River v. U.S. Army Corps of Engineers, 887 F.3d 906 (9th Cir. 2018).

Background

Newhall Ranch is a proposed large-scale master-planned community in Los Angeles County. The County approved a specific plan for the project that provided for more than 21,000 residential units and 4.4 million square feet of commercial, office, and retail uses. In connection with the project, Newhall Land and Farming Company applied to the Army Corps of Engineers for a permit under Section 404 of the Clean Water Act to discharge dredge or fill material into navigable waters. The Corps, along with the California Department of Fish and Wildlife, prepared a combined EIS/EIR. The EIS/EIR considered eight project alternatives, including Newhall’s preferred alternative, a no-build alternative and six other alternatives.

The Corps issued a Record of Decision that adopted one of the studied alternatives (“Modified Alternative 3”) as the least environmentally damaging practicable alternative. Modified Alternative 3 involved developing less acreage than Newhall’s preferred alternative, at a higher cost per developable acre. The Corps also determined that wastewater and stormwater discharges from the project would not affect endangered steelhead in the Santa Clara River downstream from the project. Based on this “no effect” determination, the Corps did not consult with the National Marine Fisheries Service on impacts to endangered steelhead.

The plaintiffs claimed that the Corps’ decisions violated the Clean Water Act, the Endangered Species Act, and the National Environmental Policy Act. First, the plaintiffs challenged the Corps’ selection of Modified Alternative 3 as the least environmentally damaging practicable alternative. Second, the plaintiffs challenged the Corps’ failure to consult with NMFS. Third, the plaintiffs argued that the EIS did not adequately analyze cumulative impacts on steelhead.
Continue Reading Federal Appeals Court Rejects Challenges to Newhall Ranch EIS and Section 404 Permit

The U.S. Fish and Wildlife Service and National Marine Fisheries Service recently published three proposed rules that would make major revisions to the regulations implementing portions of the Endangered Species Act. The proposed rules would change the criteria and procedures for (1) establishing protections for “threatened” species; (2) the listing and delisting of species and

The U.S. Department of the Interior’s Office of the Solicitor has issued Memorandum M-37050, dated December 22, 2017, which concludes that the Migratory Bird Treaty Act’s prohibition on the “taking” or “killing” of migratory birds applies only to deliberate acts, such as hunting, intended to take a migratory bird. The legal opinion reverses the