Digging Into Land Use Law

Notwithstanding its protected status as a listed species under the federal Endangered Species Act, the Southern California steelhead population is proposed for listing under the California Endangered Species Act. During a time of unprecedented drought and storm activity resulting from climate change, this move to list the species in California is likely to have major impacts on the provision of water and recycled water supply, flood control and storm water treatment and management. In the latest episode of Digging Into Land Use Law, Nossaman Environment & Land Use partner Mary Lynn Coffee and Water partner Lori Anne Dolqueist discuss the California Endangered Species Act listing process, the potential effects of a listing on public health and safety activities and regulatory tools available to streamline approvals for such activities if a listing is adopted.

Transcript: Southern California Steelhead Trout: Potential Endangered Species Listing Opening Up a Big Can of Worms

_{0:00:00.7 Lori Anne Dolqueist: Not withstanding its protected status as a list species under the Federal Endangered Species Act, the Southern California steelhead population is proposed for listing under the California Endangered Species Act, which is likely to have major impacts during a time of unprecedented drought and storm activity resulting from climate change. On the provision of water and recycled water supply, flood control, storm water treatment and management.}

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_{0:00:33.0 Speaker 2: Welcome to Digging Into Land Use Law. Nossaman's podcast covering the development of all things in on or above the ground.}

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_{0:00:50.1 LD: Welcome to Digging Into Land Use Law. I'm Lori Anne Dolqueist a partner in Nossaman's Water Group. My practice focuses on California utility regulatory matters with a particular focus on matters involving water utilities, and I have with me today my colleague, Mary Lynn Coffee. Mary Lynn is a partner in Nossaman's Environment & Land Use Group, and she has extensive experience providing legal and regulatory advice with respect to state and federal water quality, wetlands, endangered species and other natural resource protection laws. Mary Lynn's work brings her into contact with a variety of stakeholders, regulators, environmental groups, public agencies and private entities, so she always has her finger on the pulse of what is going on with respect to environmental and water issues in California.}

_{0:01:38.1 LD: I'm delighted to have the opportunity to chat with her today about the proposal to list the Southern California steelhead population under the California endangered species act. Hi Mary Lynn.}

_{0:01:49.8 Mary Lynn Coffee: Hi. Good afternoon.}

_{0:01:52.8 LD: Good afternoon. Mary Lynn, maybe you can start with just giving us an overview of the issue and then you and I can get into some of the details.}

_{0:02:00.3 MC: Sure, so what happened is that Cal Trout, which is a environmental group here in California, dedicated to the protection of aquatic species, and particularly fish and trout, has submitted a petition to list the California steelhead­–in particularly the Southern California population of steelhead–as endangered. They submitted that petition in June of 2021 to the Fish and Game Commission here in California, and it has been under consideration and the outcome of that listing process under the California Endangered Species Act would be listing the species for protection, and the moment that it becomes listed for protection, even as a candidate species, all take of that species is prohibited.}

_{0:02:56.1 MC: And take is defined in California as anything that would kill or injure the species and has also been more broadly interpreted to include indirect methods of harming the species, those types of activities are prohibited and punishable by fines and criminal penalties, even when they're unintentional. This has a separate significant state layer of regulation for the species that duplicates, but often is different than the regulation under federal law. We do have federal protections in place, but often the California Department of Fish and Wildlife determines different conservation measures and different ways of protecting the species are required under state law, and those are not just supplemental, but often quite different than what the National Marine Fishery Service would require under federal law.}

_{0:03:53.8 LD: You mentioned that this had already been listed at the federal level, do you know what prompted the movement to get it listed at the state level?}

_{0:04:02.9 MC: The Cal Trout petition lays out a lot of scientific information and factors, most of it directed to the absence of recovery, but their primary point is that recovery of this species is not occurring at the speed or rate that they would expect given the federal listing, and therefore the state listing, the supplemental protections provided by that state listing are warranted for this species, and they carefully determine that the state protections are only needed for what they call the Southern California distinct population segment, and there is an issue actually under California law whether you can list the distinct population segment, but setting that aside and just thinking about the science for a moment, they say that it's just the southern population segment that must be protected, but it's important for our listeners to know that the way they define the southern population segment is all the fish that would occupy any of the rivers that outlet to the ocean, creeks, tributaries, etcetera from Santa Maria, California to Tijuana. It's not really limited to Southern California. We really are talking about the population of fish that extends well into the Central Coast.}

_{0:05:20.8 LD: So, you mentioned some differences between the federal regulation and what could end up as state level regulation, can you talk a little bit about the differences between those or how they interact or possibly conflict?}

_{0:05:34.4 MC: Sure, so as I mentioned, we do have the Federal listing in place, and as a result of that, there are a number of restoration projects, physical solutions, restoring more natural hydrograph in certain areas, and these projects have been going on for some time under the auspices of the Federal Endangered Species Act. One of the first places that we're seeing the overlap and its potential regulation at this point, because the species isn't listed under state law yet, but we're already seeing California Department of Fish and Wildlife weigh in on these restoration projects, and they're not weighing in with just supplemental conservation measures, they are actually weighing in with conservation measures that conflict with the conservation measures already identified for a number of these projects, and that makes for a very difficult permitting process.}

_{0:06:29.3 MC: When the species is listed, an individual take permit would be needed even for incidental take associated with these restoration projects, and if California Department of Fish and Wildlife on one hand is recommending a certain set of measures and those measures are different than and in addition to the measures recommended by NIMS now we've got both supplemental mitigation costs as well as conflicts in how they implement the conservation measure.}

_{0:06:58.3 MC: One example of that, just to give you a flavor of it, that I'm personally aware of, is a project designed to change hydrology so that a more natural, very southern California, typical flashy hydrology is restored. Reductions in fresh water, increases in more saline water because this particular fish spends part of its life cycle in the ocean and needs to migrate to saline water for a life stage, and so the project required more salinity and more flashier flows, and that was reducing fresh water and open water habitat, the conservation measures were all geared to benefiting the flashy flows and the natural hydrology, and CDFW has now weighed in to say, We not only need that, but we need to replace the open water, and the whole purpose of the project was to get rid of the open fresh water. If we put that somewhere else, now we're going to have more mitigation at least from NIMS and possibly from CDFW for that new open water. So that's an example of the kind of conflicts that can arise when you have a species that's double regulated at both the federal and the state level.}

_{0:08:14.8 LD: Mary Lynn, can you tell me a little bit about the process involved with getting it listed at the state level?}

_{0:08:21.0 MC: Sure. So that process is well under way, which is why you and I are talking today because engagement is timely, as I mentioned, Cal Trout submitted the petition to list to the Commission in June of 2021, and the next step that happens in the process under statute, and this is all in the fish and game code, is that the Commission has to formally accept the petition, which they did on July 2nd of 2021. From that point, then the Department of Fish and Wildlife, which is separate from the commission, but in this circumstance acts a lot like staff for the commission. Then the department, upon acceptance of a petition undertakes what they call a 90-day evaluation, it can take a little longer, in this case it did, but the department evaluates whether or not the petition sets forth information that indicates that the listing is warranted. And then they have to present that report, that evaluation to the commission when it's completed. That report was just completed, I believe about November 28th, and it did go back to the Commission on November 28th, and the next step is that the commission will notice acceptance of the department's report, that will happen at the upcoming December 15, 16 commission hearing. And then from there, there will be another 30-day review process for the public to get to review the department's evaluation.}

_{0:09:58.1 MC: And then in February, at the February 16 and 17 2022 meeting of the Commission, the Commission will consider the department's evaluation, they'll consider any public comments submitted during that 30-day public notice period, and they'll determine based on the factors in statute whether or not they agree with the department and whether or not the listing is warranted. Now, if they determine the listing is warranted, which I think we all anticipate that they will, because the department's evaluation says it's warranted, then at that point the species actually becomes protected as if it were already listed and as endangered or threatened.}

_{0:10:38.7 MC: And when we have that may be warranted finding and we call the species a candidate species, and under the California Fish and Game Code, all candidate species are protected and the take prohibition, not just intentional, but remember any incidental take that might occur when you're doing your otherwise lawful public health and safety activities, that prohibition applies, and therefore, if you're going to undertake any activity that could take a species, you have to get an individual Take Permit first and that those permits are also called 281 permits it's fish and game code section 2081 pursuant to which those are issued. So that process is about to unfold, and I think we can all anticipate that by February, those 2081 permits will be needed for any public health and safety, water supply, flood control type of activities that could result in the incidental take of the steelhead.}

_{0:11:37.5 LD: So, Mary Lynn, what are the factors or issues or information that's considered as part of this process of evaluation?}

_{0:11:46.0 MC: The factors that are considered in determining whether to list a species are all set both in the Fish and Game Code at Section 2073 of the Fish and Game Code, and they're all scientific factors, and they're all factors that are really related to determining whether or not there might be jeopardy for the species, so they will consider the information presented in the petition regarding population trends, the range of the species, where the species are located, how many of them there are, what are their life history needs, what's the ability essentially of the population to survive and reproduce and all of that's really getting to what chance does this species have to thrive and recover or is the species really in jeopardy warranting this type of listing for special protection.}

_{0:12:40.3 MC: Those factors are largely... Well, they're entirely really scientific. There is some ability to consider ongoing management efforts like the restoration efforts I was referring to before to determine whether or not those are assisting in the survival and recovery of the species, but the inquiry is limited, there is no ability to do a cost-benefit type of analysis, the economics of some of these conservation measures are not taken into account, and frankly, the types of activities that could be adversely affected are not taken into account, even if those are public health and safety activities.}

_{0:13:22.8 MC: I often hear a lot of folks argue that there should be the ability to take into account the effects on public health and safety for people when you're listing a species, but that is not the way the state law is written, it's not the way the federal law is written either, but it's not the way the state laws is written, so the commission cannot consider those types of activities and those types of effects in the listing decision itself, those types of considerations really only play a part in the permitting process after the listing already occurs.}

_{0:13:57.8 LD: Well, that's... Leads me to my next question actually, Mary Lynn, can you talk a little bit about the permitting process and give us a flavor of how the permitting process might be longer or more challenging with this listing.}

_{0:14:11.0 MC: Sure. So, when a species is listed, as I mentioned, take is prohibited, even if the take is just incidental to an unintended consequence of performing other activities, and for the clients, you and I deal with, those are all public health and safety activities, water supply, flood control, water recharge, ground water recharge, some diversions particularly for water quality management, we do a lot of storm water diversion for water quality management try to infiltrate that instead of having it run off. And if there's any take of the species incidental to those otherwise public health and safety activities that take is prohibited, and to make sure that you're not criminally or civilly liable for it, then the agency undertaking those activities needs to get a permit to allow for the incidental take. Those permits under state law are called 2081 permits, and those permits are essentially based upon habitat management plans, so the permitee develops a habitat management plan incorporates a number of conservation measures that are devised to avoid, minimize and mitigate the effects of the project and the take associated with the project. And once the Department accepts your habitat management plan, also called a Habitat Conservation Plan, then once the department approves of that, they will make findings that your particular activity won't jeopardize the species, and then the activity can go forward under an individual 2081 permit.}

_{0:15:50.3 MC: That's the typical route, and those permits take a really long time to develop, the technical information involved, the difficulty in putting together the habitat management plan, the difficulty in finding a package of conservation measures that can justify in the department view, a no jeopardy finding. I've never seen a 2081 permit issued in less than a year, and that was for a very small project, more typically, the process is between five and seven years to get that type of permit. Obviously, when you're dealing with an emergency flood or you're dealing with a drought and you need to get water supply from one place to another, five to seven years is not a typical process.}

_{0:16:33.6 MC: There are some possibilities for streamlining take, and there have been precedent for streamlining take permits using Section 2084a for species when they're in the candidacy, and then using Section 2081 for species after they are listed as endangered or threatened, the streamlining essentially takes the approach that there can be permitting by rule, so you can identify in the rule particular conservation measures that must be implemented, and then so long as the projects implement those conservation measures, their activities can be permitted, it gives a more streamlined way to conduct particularly appropriately, I think health and safety activities related to water supply and flood control, although they've also been used for other types of activities, the most recent 2084 rule was a Joshua tree rule issued to developers, but essentially it allows some certainty for permittees, they know if they implement the suite of conservation measures specified in their rule, then their incidental Take is permitted and they can continue with their activities, that is a place...}

_{0:17:48.6 MC: Under those 2084 and 2081 rules, that is a place that the department and the Commission can consider, not really cost-benefit, but can consider the importance, urgency type of activities that are going on, and then can provide some certainty as to those types of conservation measures that will address what's anticipated to be the adverse effects of those activities on the particular listed species, that's where that comes in, not during the listing phase.}

_{0:18:20.0 LD: Now, Mary Lynn, you mentioned some of the uses or entities who might be affected by that, but maybe give me a little bit more detail on that, who among our listeners or not listeners who should be recommended to listen to this could be affected by this?}

_{0:18:34.0 MC: Really anyone who is doing anything that could affect the streams that are occupied by the steelhead or that could affect the flow in the stream occupied by the steelhead. There's four main areas where clients like yours and mine, who are typically involved in water supply, flood control types of activities, there's really four main areas that they will see an effect of these duplicative, sometimes conflicting regulations at the state and federal level.}

_{0:19:06.8 MC: The first area I gave you an example of before, it's when you're doing a restoration project or a physical solution of some sort that allocates water to various uses, and the primary conservation measure recommended by CDFW and all other regulatory agencies, the primary management measure for these species is to mandate certain levels of in-stream flow at certain depths, at certain velocities during migratory periods and at certain temperatures, and those temperatures are very low because they're temperatures that were developed based on studies done in Washington and Oregon, where the climate and the stream temperatures are much colder. So if you're mandating certain levels of flow in a surface water, you can anticipate that activities that would allocate that flow to things like water supply or to things like groundwater recharge, where you're actually infiltrating water instead of letting it flow down the stream, things that would detain flow like reservoirs and dams, all of those types of activities affecting flow will be impacted by the listing.}

_{0:20:20.6 MC: A second area that's a little bit more esoteric, but also will be greatly affected is the area of re-use of recycled water. Many agencies right now discharge recycled water to surface waters, and there is a process anytime you're going to change the location of that discharge or you're going to change the discharge and use the water beneficial for potable reuse, that process is called the Water Code Section 1211 process, and the California Department of Fish and Wildlife comments on any application to stop discharging recycled water to a surface water and instead to potably reuse that water, which is required by the State Water Board's recycled water policy. We're already seeing in many instances that the California Department of Fish and Wildlife comments negatively on the ability to reduce discharges to surface waters in order to increase potable reuse, and they're doing that on the basis of the need for in-stream flow to support groundwater-dependent ecosystems and fish like the steelhead. So, with the listing, obviously in-stream flows, mandates will make their way into any kind of section 1211 application and will reduce the ability to recharge groundwater and to re-use recycled water.}

_{0:21:43.0 MC: I think the third area that we would really anticipate seeing a good deal of effect really deals with diversions and discharges, so if you're going to discharge in your sanitation district or you have a municipal storm water sewer system and you have an MS4 and PDS permit that governs discharges from that sewer system, and then you want to continue those discharges, but there's something in the discharge or there's a diversion of the discharge to infiltration that would affect in-stream flow, you'll now see your NPDS permits carrying new conditions. And the final area that will be affecting all of our clients is actual physical alterations to these surface waters themselves, any alteration to the bed or bank of a surface water requires a 1600 agreement from the California Department of Fish and Wildlife, these would be any types of alterations related to a new outlet structure or a bridge or a diversion, or simply maintaining a Flood Control channel, trimming vegetation, removing sediment, all of these require 1600 agreements, and those 1600 agreements will need to post-listing carry new conservation measures for the steelhead, so really very far reaching in terms of the new regulation and new conservation measure mandates associated with both capital activities as well as just ongoing every day operation and maintenance activities.}

_{0:23:19.3 LD: Alright, well, that certainly is a lot. One thing I wanted to get your take on Mary Lynn, is the state of California is currently yet again in a state of extreme drought, and how would this listing affect sort of the challenge is created by drought or efforts to address drought issues.}

_{0:23:39.5 MC: I think we can already see that because we have several listed fish in the Central Valley, and there have been battles that date back far before even you and I were lawyers. Which seems like forever ago. The thing is that any surface water may have multiple beneficial uses and that water may need to go for water supply for people or water supply for irrigation, or it may need to stay in the stream for fish, and as I mentioned, the primary conservation measure here for steelhead will be to mandate in stream flow for fish, and if it has to stay in the stream, it cannot be taken out and used for people or used for irrigation, we are already seeing the effects of that in multiple ways, we saw the voluntary agreements. Well, first we saw the state water board mandate curtailments and then the voluntary agreements to try to get more balance into that process. We've seen Northern California curtailments issued this year, those have just been extended, so that literally there's a curtailment from taking any water out of certain rivers and streams, and so when the water has to stay in for the fish, then it can't be used for water supply or irrigation needs or ground water recharge or some of the other beneficial uses, so there will be a direct effect and there will be very difficult beneficial use decisions that will have to be made as a result of this listing.}

_{0:25:08.7 LD: Always interesting times when you're working with California and water issues. That's for sure. [chuckle]}

_{0:25:13.4 MC: Always.}

_{0:25:14.4 LD: Mary Lynn, what can people do and when who are concerned about this or want to have some input into the process?}

_{0:25:23.4 MC: Well, as I mentioned, because the commission is going to be considering this in February of 2022, now is the time to engage if your operations will be affected, and frankly, not just because they're our clients, but I think it's particularly important for Public Health and Safety Agencies to engage, because there will be conflicts. There will be a 30-day notice period and that notice period is intended to allow for members of the public, clients, etcetera, to submit comments, and I really encourage comments on the effects of this listing on ongoing operations. Now, as you may remember, I said that really the listing decision itself, which is the only decision that the commission's right now teed up to make in February, only considers science. There are a lot of scientific arguments as to why this particular group of fish is not listable population, also a lot of additional science that might be considered as to whether or not the fish is recovering or whether the fish is jeopardized. So that's certainly one avenue. In addition, however, as I noted, because that is all a consideration based on best available science, it doesn't allow for consideration of the types of activities that need to be ongoing, particularly to address climate change and drought and unusual storm.}

_{0:26:54.2 MC: My recommendation for folks I'm working with is that they also need to request the Commission take another action, and my recommendation is that they would ask for that 2084a rule that I was talking about, which is a streamlined rule for permitting particular types of activities based on a specified set of conservation measures that appears in the rule. In the context of adopting a 2084 rule for a candidate species, the commission can allow for ongoing Incidental Take associated with certain public health and safety activities, so long as the agencies are implementing specified conservation measures that have benefit for the species, there's certainty in that approach, and the agencies know what to do in terms of conservation measures, and as long as they're implementing it, then they can continue with their public health and safety activities and particularly they can do that on an emergency basis because as I noted, there's often not time to get a permit if you're dealing with a mud slide or a flood, or you're dealing with the drought and you just get hit with curtailments that give you a zero allocation.}

_{0:28:05.3 MC: That would be my recommendation. Those are places where the Commission has a little bit more flexibility to balance the needs of people and the fish, that's not a flexibility they have in a listing decision itself, and so I do recommend engaging on that at the February hearing because at the February hearing, if they determine that the listing may be warranted, then the species becomes a candidate and that take prohibition kicks in, so the 2084a rule will be needed no later than February 17th, 2022.}

_{0:28:38.7 LD: Alright, well, thank you very much, Mary Lynn for that great explanation of this issue and also recommendations for actions that people can take, and they need to be thinking about taking them right now, so thank you very much.}

_{0:28:50.9 MC: My pleasure. Nice to talk with you.}

_{0:28:54.5 LD: Always. And thank you to our listeners for joining us for this episode of Digging Into Land use Law for additional information on this topic or other environment and land use matters, please visit our website at nossaman.com. And also, don't forget to subscribe to Digging Into Land use Law wherever you listen to podcasts so you don't miss an episode until next time.}

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_{0:29:19.9 S2: Digging Into Land use Law is presented by Nossaman LLP, and cannot be copied or re-broadcast without consent. The content reflects the personal views and opinions of the participants. The information provided in this podcast is for informational purposes only is not intended as legal advice and does not create an attorney-client relationship, listeners should not act solely upon this information without seeking professional legal counsel.}

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