Recovery Planning Advances Cherise M. Oram Stoel Rives LLP Northwest Environmental Summit October 20, 2005

Legal Framework How does recovery planning fit into ESA’s overall scheme How does recovery planning fit into ESA’s overall scheme Recent developments in the law Recent developments in the law Why recovery planning is important for project proponents Why recovery planning is important for project proponents

Relevant ESA Provisions Section 4: listing and critical habitat designation; recovery planning Section 4: listing and critical habitat designation; recovery planning Section 7: federal consultation requirement (“Section 7 consultation”) Section 7: federal consultation requirement (“Section 7 consultation”) Section 9: prohibition on take Section 9: prohibition on take Section 10: permits (e.g., HCPs) Section 10: permits (e.g., HCPs)

ESA Section 4(f) Requires development of recovery plans unless it will not promote species conservation. Requires development of recovery plans unless it will not promote species conservation. No deadline for issuing recovery plan. No deadline for issuing recovery plan. Include site-specific management actions necessary to achieve species conservation and survival. Include site-specific management actions necessary to achieve species conservation and survival. Include objective, measurable criteria. Include objective, measurable criteria.

Recovery plans are not action forcing on their own. Recovery plans are not action forcing on their own. They build a record that guides permitting actions, 4(d) rules, grant funding, etc. They build a record that guides permitting actions, 4(d) rules, grant funding, etc. Example: To obtain HCP permit, the applicant must show plans to minimize and mitigate to the maximum extent practicable. An HCP that aligns with the recovery plan will more easily meet that standard. Example: To obtain HCP permit, the applicant must show plans to minimize and mitigate to the maximum extent practicable. An HCP that aligns with the recovery plan will more easily meet that standard. Recovery plans now play a central role in Section 7 consultations too. Recovery plans now play a central role in Section 7 consultations too.

Gifford Pinchot Task Force v. USFWS August 6, 2004 “Destruction or adverse modification” of critical habitat is defined as occurring when an action appreciably diminishes habitat value for both survival and recovery. “Destruction or adverse modification” of critical habitat is defined as occurring when an action appreciably diminishes habitat value for both survival and recovery. Definition caused analysis of effects to critical habitat to focus on survival. Definition caused analysis of effects to critical habitat to focus on survival.

Gifford Pinchot Task Force v. USFWS 9 th Circuit Court of Appeals invalidated the definition because it ignored recovery component of critical habitat. 9 th Circuit Court of Appeals invalidated the definition because it ignored recovery component of critical habitat. Holding: Destruction or adverse modification can occur when critical habitat is effected in a manner that would appreciably diminish recovery prospects. Holding: Destruction or adverse modification can occur when critical habitat is effected in a manner that would appreciably diminish recovery prospects. USFWS issued interim guidance: discuss how action will effect habitat qualities essential to species conservation. USFWS issued interim guidance: discuss how action will effect habitat qualities essential to species conservation.

National Wildlife Federation v. NMFS May 26, 2005 Judge Redden found that the 2004 biological opinion on operation of the federal Columbia River dams did not properly consider recovery in the context of its jeopardy analysis. Judge Redden found that the 2004 biological opinion on operation of the federal Columbia River dams did not properly consider recovery in the context of its jeopardy analysis. Extended Gifford Pinchot to jeopardy definition (appreciably reduce likelihood of survival and recovery in the wild). Extended Gifford Pinchot to jeopardy definition (appreciably reduce likelihood of survival and recovery in the wild).

Biological opinions must now analyze not only extent to which proposed action will effect survival, but also must consider effects on opportunities to recover the species. Biological opinions must now analyze not only extent to which proposed action will effect survival, but also must consider effects on opportunities to recover the species. Where a recovery plan exists (final or draft), it is presumed the best available science on the issue of recovery. Where a recovery plan exists (final or draft), it is presumed the best available science on the issue of recovery. Biological opinions will now consider how proposed actions align with recovery plans. Biological opinions will now consider how proposed actions align with recovery plans. Where no recovery plan, use best science. Where no recovery plan, use best science.

Participate in Recovery Planning Recent case law underscores importance of participating in (or at least monitoring) recovery planning efforts as project proponent. Recent case law underscores importance of participating in (or at least monitoring) recovery planning efforts as project proponent. Goal is to make sure recovery plan aligns with (or at least doesn’t conflict with) the project and any proposed mitigation. Goal is to make sure recovery plan aligns with (or at least doesn’t conflict with) the project and any proposed mitigation. Recovery plan can even contemplate or cite to conservation aspects of project. Recovery plan can even contemplate or cite to conservation aspects of project. At a minimum, involvement will help proponents determine where a project might conflict with a recovery plan and give proponents an opportunity to cure the conflict. At a minimum, involvement will help proponents determine where a project might conflict with a recovery plan and give proponents an opportunity to cure the conflict.