Court of Appeals decision strikes the precautionary principle in determinations under the Endangered Species Act The directive from Congress that the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) must base their decisions on the “best scientific and commercial data available” under section 7 of the federal Endangered Species Act (ESA) has inarguably contributed to the conservation of imperiled species. The California condor, the gray wolf, and the bald eagle are all examples of this. Unfortunately, the federal wildlife agencies predictably drift from value-neutral assessment of the status of species and the effects of human activity on those species to assumptions in line with the precautionary principle, when confronted with substantive uncertainties regarding the ecologies of listed species and the environments […] Written by Paul S. Weiland July 3, 2023July 5, 2023
Strengthening the Species Status Assessment Process: The Longfin Smelt SSA Provides Instructive Insights Based on close reading of the Longfin Smelt Species Status Assessment, we have identified four ways in which the Service should update its Species Status Assessment Framework. Written by Paul S. Weiland February 28, 2023March 2, 2023
Petition aimed at protecting non-native Striped Bass will only worsen the plight of California’s imperiled native fishes The Northern California Guides and Sportsmen’s Association (NCGASA) has filed a petition for regulatory change with the California Fish and Game Commission that would alter sport fishing such that only striped bass within a 10-inch size range could be legally harvested. Stripers less than 20 inches would be protected from harvest, as would stripers larger than 30 inches. The existing regulations allow anglers to keep any fish 18 inches or greater in length. The stated purpose of the proposed change to a “slot limit” is to contribute to the conservation of striped bass — to grow the population in the San Francisco Estuary and its tributary rivers and to boost […] Written by Paul S. Weiland September 6, 2022September 6, 2022
Are threatened and endangered species better off without a definition for habitat? The federal wildlife agencies think so. If conservation scientists agree on one big thing, it’s that the destruction and fragmentation and degradation of habitats are the dominant threats to the persistence of most imperiled species. Congress recognized that fact a half century ago in the purpose statement to the Endangered Species Act (ESA) – that is, “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.” In that light it is curious that the principal focus of the ESA is on species rather than their habitats. Concurrent with a determination to list a species as endangered or threatened under the ESA, Congress instructs the Fish and Wildlife Service […] Written by Paul S. Weiland July 7, 2022July 7, 2022
How can science help the Voluntary Agreements succeed? This past week a number of federal, state, and local agencies took a significant first step toward negotiation of Voluntary Agreements (VAs) that could be the basis for implementing updated water quality objectives for California’s Bay-Delta. This is a notable milestone but much work remains. The participating agencies must agree upon the details of the VAs, and ultimately, the State Water Resources Control Board must consider whether to adopt the VAs as the means to implement the Bay-Delta Water Quality Control Plan. The memorandum of understanding (MOU) signed by the VA parties, and the term sheet attached to the MOU, explain the intent of those parties to present VAs to […] Written by Paul S. Weiland April 8, 2022April 11, 2022
On science and intellectual humility in resource management For the past three decades, the federal and California governments and diverse stakeholders have looked to scientists to explain the causes of the long-term population declines in fish species native to California’s Bay-Delta in an effort to chart a course to conserve those species. Water agencies across the State have invested billions of dollars in data collection and scientific research with the hope of finding clear answers to vexing problems stemming from more than a century of large-scale environmental change to the Pacific Coast’s most expansive estuary. Armed with a sense of urgency, regulatory agencies have felt the compulsion to act. “Clean narratives” sometimes supplied by scientists, but more often […] Written by Paul S. Weiland January 14, 2022January 18, 2022
Biden administration moves to eliminate the definition of habitat: greater regulatory uncertainty under the Endangered Species Act to follow Recently, at the direction of the Biden White House, the U.S. Fish and Wildlife Service and National Marine Fisheries Service proposed to rescind a Trump-era rule that defines the term “habitat” for the purpose of informing the designation of “critical habitat” by those two agencies under the federal Endangered Species Act (ESA). While the federal wildlife agencies offer certain rationales for the proposed rescission, there is no question that the primary motivation is to provide discretion to federal wildlife agency regions, offices, and line staff to make ad hoc determinations regarding the meaning of the term “habitat.” This shift away from an explicit definition of habitat that provides for transparency and consistency […] Written by Paul S. Weiland November 22, 2021November 22, 2021
Will the Biden Administration adhere to its commitment to best science and integrity in decision-making as it tackles Water Project Operations? On his first day in office, January 20, 2021, President Biden issued an Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. In that Order, the President stated that “the Federal Government must be guided by the best science and be protected by processes that ensure the integrity of Federal decision-making.” He went on to direct all federal agencies to address federal actions during the prior four years that conflict with that objective. In an accompanying list of agency actions for review, the President identified precisely two biological opinions that his Administration would review to determine if they were “guided by the best science” and adopted […] Written by Paul S. Weiland October 8, 2021October 8, 2021
Is high Delta outflow in the autumn necessary for the conservation of delta smelt? Data and analyses say no, the IEP’s spin doctors say yes Recently, the Interagency Ecological Program (IEP) — an interagency consortium charged “to provide and integrate relevant and timely ecological information for management of the Bay-Delta” — released a report presenting data and studies regarding a major conservation action for delta smelt, referred to as the Fall X2 Action. The Fall X2 Action purports to benefit the delta smelt during the autumn by increasing outflow through the Sacramento-San Joaquin Delta during that period in years where there is above normal precipitation in the preceding winter and spring. Increasing outflow through the Delta moves the position of the tidally influenced low-salinity zone westward. The federal and state wildlife agencies contend that this action […] Written by Paul S. Weiland August 18, 2021August 18, 2021
An overview of the listing process under the California Endangered Species Act The California Endangered Species Act (CESA) is one of the most impor- tant legal tools available to the Fish and Game Commission and Department of Fish and Wildlife to protect the State’s wildlife resources. The listing process, together with the prohibitions in section 2080 of the Fish and Game Code, are the law’s regulatory teeth. At the same time, because any interested person can petition to list a species, the listing process invites citizen participation in the regulatory scheme. Listing decisions can be the difference between persistence and extinction of a species. They can also cause severe economic disruption and, for this reason, should in our view be made with […] Written by Paul S. Weiland July 9, 2021July 10, 2021
What place do cost-benefit analyses have in the management of natural resources in the Delta? Recently, Courthouse News Service reported on a case pending in the United States Court of Appeals for the Ninth Circuit involving dredging of portions of the San Francisco Estuary and impacts from those activities on fishes protected under state and federal Endangered Species Acts. The U.S. Army Corps of Engineers, faced with the never-ending challenge of keeping shipping corridors open to large vessels in the San Francisco Bay, the Delta, and lower Sacramento and the San Joaquin rivers, have an ongoing consultation with the National Marine Fisheries Service and U.S. Fish and Wildlife Service intended to minimize dredging impacts on longfin smelt, delta smelt, steelhead, and several Chinook salmon runs. The Corps […] Written by Paul S. Weiland June 21, 2021June 24, 2021
Captive breeding of delta smelt: Worthy experiment or well-intended folly? Delta smelt have nearly ceased to appear in “pelagic” fish surveys carried out in their narrow geographic range in the upper San Francisco Estuary. As trawl-generated index values for delta smelt have declined over the past quarter century – understand there is no reliable estimate of the size of the delta smelt population — the chorus of voices advocating for captive rearing and releases of the species has grown louder. When in 2019 the Bureau of Reclamation proposed to include development of a conservation hatchery as a component of its ongoing operation of the federal Central Valley Project, it was building on work to culture delta smelt that was initiated […] Written by Paul S. Weiland May 17, 2021May 17, 2021
