amber crooks <amberc@conservancy.org>

07/22/2011 04:18 PM

To: "northflorida@fws.gov" <northflorida@fws.gov>cc: "Haubold, Elsa" <Elsa.Haubold@MyFWC.com>,

"Tim.Breault@myfwc.com" <Tim.Breault@myfwc.com>, "Nick Wiley (nick.wiley@fwc.state.fl.us)" <nick.wiley@fwc.state.fl.us>, " (Nick.Wiley@MyFWC.com)" <Nick.Wiley@MyFWC.com>, "dave_hankla@fws.gov" <dave_hankla@fws.gov>

Subject: Cooperative Agreement Assessment

Please see the attached letter on behalf of the Conservancy of Southwest Florida, Center for Biological Diversity, and the South Florida Wildlands Association regarding the proposed Section 6 Cooperative Agreement.  You will also be receiving this letter in hard copy through the mail for your records. If you have any questions about the letter, please let us know. Thanks,

Amber CrooksAmber CrooksNatural Resources SpecialistConservancy of Southwest Florida1450 Merrihue Dr.Naples, Florida 34102(239) 262.0304, Ext. 286Fax (239) 262.5872 

Please consider the environment before printing this e-mail.

.. ? 0

Everglades Law Center, Inc. Defending Florida's Ecosystems

July 21, 2011

U.S. Fish & Wildlife Service Attn: Cooperative Agreement Assessment 7915 Baymeadows Way, Suite 200 Jacksonville, FL 32256

CONSERVANCY of Southwest Florida OUR WATEfL LAND" WiLDliFE, FUTURE

RE: Cooperative Agreement Assessment

On behalf of the Center for Biological Diversity, the Conservancy of Southwest Florida, and South Florida Wildlands Association, we submit the following comments on the proposed Section 6 Conservation Agreement between the United States Department of the Interior, Fish & Wildlife Service, and Florida Fish and Wildlife Conservation Commission for the Conservation of Endangered and Threatened Species ("Cooperative Agreement') and the Draft EnvirOll1l1entai Assessment ("Draft EA") prepared for this proposed conservation agreement. These comments detail our significant concerns with the Cooperative Agreement and U.S. Fish & Wildlife Service's current and future compliance with the Endangered Species Act and the National Environmental Policy Act.

I. Endangered Species Act Compliance

The Endangered Species Act ("Act" or "ESA") was enacted in 1973 in recognition of Congress's findings that:

(l) various species of fish, wildlife, and plants in the United States have been rendered extinct as a result of economic growth and development untempered by adequate concern and conservation; (2) other species of fish, wildlife, and plants have been so depleted in numbers that they are in danger or threatened with extinction; (3) these species offish, wildlife, and plants are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people. I

The ESA "represent[ s 1 the most comprehensive legislation for the preservation of endangered species ever by any nation.,,2 The Act's purpose is to "provide a program for the conservation of.. . endangered species and threatened species ... and to provide a means whereby the ecosystems upon which endangered species and threatened species depend

1 16 U.S.C. § 1531(a)(1)-(3). 2 Tennessee Valley Authority v. Hill, 437 U.S. 153, 180 (1978).

b d ,.3

may e conserve .'

One of the ESA's chief commands is that "all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utitize their authorities in furtherance of the purposes" of the Act.

Under the ESA, the Secretaries of the Interior and Commerce are responsible for administering the Act as it pertains to tenestrial species and marine species, respectively. The Secretary of the Interior has delegated its responsibilities to the U.S. Fish & Wildlife Service ("FWS") while the Secretary of Commerce has delegated its duties to the National Marine Fisheries Service ("NMFS" collectively "Services,,). 5

The Act contains several provisions, which set forth a process toward accomplishing the Act's mission of species conservation. These provisions include, among others:

·Section 4's listing and critical habitat provisions which provide the public with the opportunity to petition the Services to list endangered or threatened species or designate critical habitat;6

·Section 4's requirement that the Services prepare recovery plans for listed species; 7

·Section 6's authorization to the Services to enter into cooperative agreements with States to advance species conservation;8

·Section Ts requirement that federal agency actions do not jeopardize the continued existence of listed species or result in the destruction or adverse modification of that species' critical habitat;9

·Section 9's prohibition on the "take" of endangered species; 10

·Section I O's exception to the Act's "take" prohibitions tluough the issuance of an incidental take permit and the preparation of a habitat conservation plan by FWS or NMFS;11 and

·Section II's citizen suit provision for violations of the Act.

Collectively, these provisions reflect a strong commitment by Congress to make species

3 16 U.S.C. § 1531 (b)(1). 4 16 U.S.C. § 1531 (c)(l) (emphasis added). 5 50 C.P.R. § 402.01. 6 16 U.S.c. § 1533. 7 I d.

8 Id. § 1535. 9 [d. § 1536(a)(2). 1°1d. § 1538. 11 See id. § 1539.

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conservation a national priority while providing the public with several opportunities to assist the federal government in advancing that mission. Further, the Act reflects Congress's intent to foster a cooperative relationship between the federal government and the states and encourage states to assist in species conservation.

A. The Endangered Species Act Does Not Vest the Fish & Wildlife Service With the Authority to Delegate its Section 10 Duties to the States.

In furtherance of the Act's goal to "halt and reverse the trend toward species extinction,,,12 it prohibits the "take" of endangered and threatened wildlife. Section I 0 of the ESA provides a limited exception to the "take" provisions of the ESA in the form of incidental take permits - take which is "incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." 13 In order to authorize this incidental take, the Services must make certain findings that the applicant for take "will, to the maximum extent practicable, minimize and mitigate the impacts of such taking," and that "the taking will not appreciably reduce the likelihood ofthe survival of the species in the wild.,,14

The ESA authorizes the Services to issue an incidental take permit if:

(i) the taking will be incidental; (ii) the applicant will, to the extent practicable; minimize and mitigate

the impact of such taking; (iii) the applicant will insure that adequate funding for the conservation

plan ... will be provided; and (iv) the taking will not appreciably reduce the likelihood of the

. I f h . 15 survlva ... 0 t e specIes ...

Meanwhile, Section 6 authorizes the Secretary ofthe Interior to enter into a cooperative agreement with any State that "establishes and maintains an adequate and active program for the conservation of endangered and threatened species.,,16 FWS promulgated regulations clarifying its Section 6 authority, 17 stating that the Secretary will "cooperate with any State which establishes and maintains an adequate and active program for the conservation of various endangered and tlU'eatened species.,,18 A State program is adequate and active if the Secretary finds initially and on an annual basis that:

(a) The State has authority to conserve resident and endangered species; (b) The State has established an acceptable conservation plan, consistent with purposes and policies of the ESA and has furnished this plan to the secretary;

12 Tennessee ValleyAuthorityv. Hill. 437 U.S. 153, 194 (1978). 13 16 U.S.C. § 1539(a)(1)(8). 14 Jd. § 1539(2)(8). 15 50 C.F.R. § 17.22(b)(2). 16 16 U.S.C. § 1535(c)(1) (2006). 17 50 C.F.R. §§ 81.1 -15. 18 Id. § 81.2.

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(c) The State is authorized to conduct investigations to determine status and survival requirements for endangered species; (d) The State is authorized to establish programs, including land acquisition for the conservation of endangered species; and ( e) Provisions are made for adequate public participation in designating species as threatened or endangered.

The purpose of Section 6 is to allow the Services and States to work together to protect and conserve federally listed species.

Yet, nowhere in the Act does it contemplate that Congress intended for the federal government to delegate its responsibilities for administering an entire Section of the Act to the States or other non-federal entities. FWS' proposed Cooperative Agreement with the State of Florida to delegate some (ifnot all) of its Section 10 permitting responsibilities is neither expressly nor implicitly authorized by the Act and such a sweeping transfer of authority from FWS to the State appears to violate the doctrine of unlawful sub-delegation.

The doctrine of unlawful sub-delegation holds that delegations of statutory powers to outside pm1ies are presumed to be unlawful. 19 In United Slales Telecom Association v. Federal Communications Commission, the D.C. Circuit Court of Appeals found that the FCC had unlawfully delegated certain duties under the Telecommunications Act to state regulatory commissions, concluding that "the case law strongly suggests that subdelegations to outside parties are assumed to be improper absent an affinnative showing of congressional authorization. ,,20 "The fact that the subdelegation ... is to state commissions rather than private organizations does not alter the analysis.,,21 The Court held, "while federal agency officials may subdelegate their decision-making authority to subordinates absent evidence of contrary congressional intent, they may not subdelegate to outside entities-private or sovereign-absent affirmative evidence or authority to do SO.,,22

The Court acknowledged that there are types oflegitimate outside party input into agency decisionmaking processes; however, the proposed Cooperative Agreement fits none of these models. First, a federal agency entrusted with broad discretion to permit or forbid certain activities may condition its grant ofpernlission on the decision of another entity, such as a state ... so long as there is a reasonable cOlmection between the outside entity's decision and the federal agency's determination. Unlike instances where a federal agency adopts a state or local concem as an element of its decision process, the FWS here (much like the Commission in Us. Telecom) has delegated to another actor (the State of Florida) almost the entire determination of whether a specific statutory requirement (Section 10 of the ESA) has been satisfied. Such an arrangement is impermissible. Moreover, while there is authority for the view that a federal agency may use a state

19 United States Telecom Ass'n v. FCC, 359 F.3d 554, 565-66 (D.C. Cir. 2004). 20 [d. at 565 (internal citations omitted). 21 [d. at 566. 22 Id

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agency to provide the agency with nondiscretionary fact gathering and transmittal of teclmical data,23 the proposed Cooperative Agreement, much like the sweeping proposal struck down by the Court in U. S. Telecom, does not remotely resemble nondiscretionary fact finding and enables the state to make "crucial decisions" regarding the take of federally listed species. Lastly, the proposed Cooperative Agreement does not merely call for FWS to turn to the State for advice and policy recommendations leaving the final· decision to FWS;24 the Cooperative Agreement would vest Section 10 incidental take decision-making with the State of Florida.

Nowhere in the Endangered Species Act does the statute authorize either the FWS or NMFS to delegate its permitting responsibilities to states or private actors. Instead, the plain language of Section 10 of the Act provides:

(I) The Secretary may permit, under such terms and conditions as he shall prescribe -

(A) any act otherwise prohibited by section 1538 of this title for scientific purposes or to enhance the propagation or survival of the affected species, including, but not limited to, acts necessary for the establishment and maintenance of experimental populations pursuant to subsection (j) of this section; or

(8) any taking otherwise prohibited by section 1538(a) (I) (8) of this title if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.

FUliher, "No permit may be issued by the Secretary" authorizing any taking referred to in paragraph (I) (8) unless the applicant submits to the Secretary a satisfactory conservation plan.

It is the Secretary of the Interior and he or she alone [through the Fish & Wildlife Service] that may pernlit the take of a listed species and only after a determination that the take meets the specific requirements of the Act.

Section 6 calls for the Secretaries of the Interior and Commerce to cooperate to the maximum extent practicable with the States. To this end, Section 6(b) enables the Secretary to enter into "management agreements" with any state for the administration and management of any area established for the conservation of endangered or threatened species. Section 6( c) further authorizes the Secretaries to enter into a cooperative agreement [in accordance with Section 6] with any State, which establishes and maintains an adequate and active program for the conservation of endangered species and threatened species. Section 6 (d) also enables the Secretaries to provide financial

23 See U.S Telecom Assoc. v. FCC (citing National Association afPsychiatric Treatment v. Mendez, 857 F. Supp. 85, 91 (D.D.C. 1994)). 24 See id.

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assistance to states to assist in the development of programs for the conservation of endangered and threatened species.

Section 6 indeed encourages cooperation between the Federal government and the states but nothing in Section 6. or any other part of the Act, allows the delegation ofFWS' . permitting authority.25 This omission is highlighted by the fact that other federal environmental statutes do expressly provide for delegation of management authority to states. For example, the Clean Water Act ("CW A") expressly authorizes the Environmental Protection Agency to delegate the administration of the National Pollutant Discharge Elimination System ("NPDES") pennit program to a state in accordance with the requirements of Section 402 of the CW A?6 The EPA reserves the right to withdraw the delegation if the State fails to comply with specific regulatory requirements.27

Similarly, the Marine Mammal Protection Act authorizes the transfer of management and conservation authority over the taking of marine mammals provided several criteria are met.28 It also authorizes "cooperative allocation agreements," where the species' range extends beyond the state territorial waters,29 and the revocation of such transfers.3o The ESA on the other hand contains no such provisions.

Further, the legislative history of the Act only reveals a desire by Congress to encourage cooperation between the states and the federal government in species protection. Neither the plain language of the Act nor the legislative history indicates any intention to delegate Section 10 permitting responsibilities to the States. Moreover, the fact that Section 6 was initially passed by Congress in 1973 (and later amended in 1977) before the 1982 amendments authorizes Section 10 take strongly suggests that Congress never contemplated that cooperative agreements would be used to delegate incidental take permitting authority to the states.

Absent such affirmative evidence or congressional intent, it would be improper for FWS to delegate its Section 10 decision-making authorities to the State of Florida.3l

Additionally, we also question the Florida Fish and Wildlife Conservation Commission's ("FWC") ability to meet the Section 6 requirements of having the proper authorities to accept such responsibilities, as well as the required existence of an "adequate and active" program. As described above, the Act requires that the necessary "authority resides in the

25 See National Park & Conservation Ass 'n v. Stanton, 54 F. Supp. 2d 7 (D.D.C. 1999) (finding that the National Park Service had unlawfully delegated all responsibility for managing the Niobrara National Scenic River to a Council made up of state, local and industry interests authority to the Council even though Congress had explicitly encouraged "state and local involvement in the administration and management" of the River through creation of the Niobrara Scenic River Advisory Commission). 26 See 33 U.S.C. § 1342. 27 See 40 C.F.R. Part 123. 28 16 U.S.C. § 1379(b). 29 / d. at § 1379(a). 30 1d. at § 1379(e). OJ See Assiniboine & Sioux Tribes v. Ed. olOil and Gas, 792 F.2d 782, 796 (9th Cir. 1986) ("We are reluctant to read broad authority to subdelegate these statutes, absent clear proof of legislative intent to relieve the Secretary of a portion of his duties and proofthat such a delegation would be in the Tribe's best interests.").

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state agency to conserve resident species .... ,,32 However, the FWC has often interpreted the Florida Constitution as limiting the agency's ability to regulate taking of marine species, as well as to regulate habitat.33

While FWS does not typically regulate marine species, its regulation of nesting sea turtles may be one example whereby the FWC's apparent lack of authority for marine species would be problematic for delegation. 34 Even more concerning is the attempt to delegate permitting authorities to an agency that is unwilling and claims to be limited in its ability to regulate occupied habitat.35

The limited regulatory muscle the FWC has exercised in its permitting fi'amework has focused on the taking of individuals, neglecting any losses of occupied habitat. The FWC "does not regulate development on private lands that may destroy habitat,,,36 however many of FWS' cun'ent incidental take frameworks review impacts to habitat occupied by listed species. With these drastic differences between the agencies, there is no acceptable course for delegation of ESA responsibilities to the FWC. This is paIticularly concerning for species with critical habitat designations.

Additionally, Section 6 requires that the FWC have an existing "adequate and active program.,,37 While the Draft EA mentions many "conservation prograJl1s" administered by FWC,38 there are currently very few "take" permitting processes in place. The FWC's recently-approved Endangered and Threatened Species rule establishes legal protection from take for all species listed on the state's protected list, however, there is no corresponding incidental take permitting framework. The only permitting systems the agency currently has in place are to consider gopher tOltoise relocation requests, bird nest removal requests, bald eagle disturbance, aIld scientific collection; notably, iliese progranls focus mainly on species not listed under the ESA. Typically, these pernlitting frameworks are based on non-regulatory management plans or guidance dOCl1111ents. For exanlple, permits may be awarded "based upon whether issuance would further management plan goals and objectives.',39 However, management plan goals may not necessarily include recovery as goal, instead aiming only for retention of existing populations. Given this inexperience with incidental take permitting, FWC does not meet the requirements for an "adequate and active program" required under the ESA.

32 16 U.S.C. § 1535(c)(1)(a), 50 C.F.R. § 81.2. 33 Elsa Haubold, personal communications, August 25, 2009. 34 The Florida Supreme Court has held that the FWC does not retain constitutional authority over listed marine species such as the Florida manatee, whales, and sea turtles. The FWC's authority to regulate these species is derived from statute and not the state constitution because at the time of the FWC's creation, the Florida Department of Environmental Protection retained some authority over the regulation of endangered and threatened marine species. See Caribbean Conservation C01p. v. Fla. Fish & lYildlije Conservation Comm 'n, 838 So. 2d 492 (Fla. 2003). 35 Florida Fish and Wildlife Conservation Commission, 20 II. "Why Allow Land with Gopher Tortoises to Be Developed?" Question and Answer. Updated May 20, 2011. Accessed June 30, 2011 http://myfwc.custhelp.com/app/answers/detailla id/20 1 O/session/L3 Rpb WUvMTMwOTQONTgOM i9za W QvUkZ4UmZQeGs%3D. 36 ld.

37 16 U.S.c. § 1535(c)(1), 50 C.F.R. § 81.3. 38 Draft EA at 2. 39 68A-27.003, F.A.C.

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B. The FWS, Not the State of Florida, Has a Duty to Ensure Against Jeopardy.

In addition to reviewing the incidental take permit ('"ITP") application for compliance with Section 1 0, FWS must engage in intra-service consultation for consistency with Section 7- meaning that it must ensure that its approval of an ITP "is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of [critical] habital.,,4o "Jeopardize the continued existence" means to "engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.,,41 In conducting this intra-service consultation, FWS must rely on "the best scientific and commercial data available. ,,42 If after intra-service consultation, FWS concludes that the proposed action will result in take, but unlikely to jeopardize any listed species or adversely modify critical habitat, FWS must provide an incidental take statement ("ITS") that specifies the impact of the taking on the species, reasonable and prudent measures to minimize such incidental take, and temlS and conditions to implement those measures. The ITS thereby "serves as a check on the agency's original decision that the incidental take of species resulting from the proposed action will not violate section 7(a)(2) of the ESA.,,43

Where the effects of an activity would jeopardize the s~ecies, an ITP may not be issued as it would violate both Section 7 and 9 requirements.4 The proposed Cooperative Agreement suggests that Section 7 consultation on the permitting guidelines would satisfy the Act's mandate that FWS perform intra-service consultation during the Section 10 process. There is simply no authority to support that proposition; it is not only impracticable, it is plainly inconsistent with the statute.

First, the biological opinion is the main source of scientific data-best scientific and commercial data available45

- and is used to help determine the acceptable level oftake. 46

The Cooperative Agreement states that the more stringent of standards (between the state's requirement of "consistent with the conversation of the species,,47 and the Act's requirements are outlined above) must be met prior to awarding ofITP under this proposed delegation.48 It goes on to say that proper avoidance, minimization and mitigation measures will be provided through a "Best Management Practices"

40 16 U.S.C. § I 536(a)(2); Loggerhead Turtle v. County of Volusia, 120 F. Supp. 2d 1005, 1012 (M.D. Fla. 2000). 4J 50 C.F.R. § 402.02. 42 Jd.

43 Natural Resources Defense Councilv. Evans, 364 F. Supp. 2d 1083, 1133 (N.D. Cal. 2003). 44 16 U.S.C. § I 536(a)(2); 16 U.S.C. § I 539(a)(2)(8)(4). 45 /d. § 1536(a)(2). 46 FWSINMFS Joint Section 7 Consultation Handbook at 3-7. 47 US Fish and Wildlife Service, Florida Fish and Wildlife Conservation Commission, 2011. Cooperative Agreement 8etween the United States Department ofInterior Fish and Wildlife Service and Florida Fish and Wildlife Conservation Commission for the Conservation of Endangered and Threatened Fish and Wildlife. p. 6. 48 Jd.

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approach.49 Broad biological opinions on permitting guidelines in lieu of project/action­specific biological opinions will likely be woefully inadequate to determine what minimization and mitigation measures are needed to meet ESA requirements. It would be impossible for a broad biological opinion on the proposed FWC permitting guidelines to be adequate to determine the direct, indirect and cumulative effects of possible projects/actions. Simply having a menu approach to species conversation is not effective in ensuring that impacts are minimized to the maximum extent practicable and that jeopardy has not occurred. For some projects/actions, "a' la carte" measures, such as wildlife crossings, site plan redesign, etc. may be necessary to ensure compliance with ESA.

These ITP-specitic biological opinions also allow the FWS to analyze the cumulative future impacts and the enviromnental baseline, 50 which includes:

[T]he past and present impacts of all Federal, State or private actions and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone fOlmal or early Section 7 consultation, and the impact of State or private actions which are contemporaneous with the consultation process.

It is unclear what steps Florida would take to ensure that the permits its issues take into account cumulative impacts, including the impact of other FWS ITPs authorized outside the State of Florida, or other FWS ITSs authorizing federal government take of Florida species. Many federally listed species occurring in Florida also have ranges outside of the state's jurisdiction, such as the piping plover, wood stork, and red cockaded woodpecker. The proposal has not adequately reviewed how FWC, under this delegation, would be authorized to make determinations that may affect the viability of the species whose range also includes other state jurisdictions.

FUllhermore, there are situations where FWS is required to reinitiate this consultation. Where discretionary federal involvement or control over the action has been retained and new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered, FWS must reinitiate consultation. More specifically, reinitiation of consultation is required: 5l

(I) If the amount or extent of taking specified in the incidental take statement is exceeded;

(2) If new information reveals effects of the action that may affect

listed species or critical habitat in a manner or to an extent not previously considered;

(3) If the identified action is subsequently moditied in a manner that

49 Draft EA at 7. so 50 C.F.R. § 402.02. 51 Id. §402.16.

causes an effect to the listed species or critical habitat that was not considered in the biological opinion; or

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(4) If a new species is listed or critical habitat designated that may be affected by the identified action 52

Because FWS is proposing to engage in intra-service consultation only with respect to the "permitting guidelines," and not the individual ITPs, and ITP holder from the state wpuld not be subject to this process even where the above circumstances are implicated. Even if the regulations regarding reinitiation of consultation were to apply, FWS has not provided information regarding how it would reinitiate consultation on an ITP that it never consulted on to begin with.

Just as important as Us. Telecom's holding that subdelegations to outside paIiies are asswlled to be improper absent an affimlative showing of congressional authorization, are the reasons why the court reached this decision. As the cowi explained, "when an agency delegates power to outside parties, lines of accountability may blur, undermining an important democratic check of decision-making.,,53 "Also, delegation to outside entities increases the risk that these paJ1ies will not share the agency's 'national vision and perspective' and thus may pursue goals inconsistent with those of the agency and the underlying statutory scheme. In short, subdelegation to outside entities aggravates the risk of policy drift inherent in any principal-agent relationship. ,,54

These concerns are at issue here. Under the ESA, the federal govemment, not the State of Florida, has a statutory duty to ensure that its actions do not jeopardize the continued existence of all endangered species. The proposed approach poses a significant risk not only to a wide range of federally listed species, but also to the process as a whole. Fmthermore, the attempted delegation of this authority via the proposed Cooperative Agreement has not undergone Section 7 intra-service consultation, therefore FWS has not demonstrated that the proposed Cooperative Agreement itself would not result in jeopardy or adverse modification.

C. The State Is Not Prepared to Assume Section 10 Permitting Responsibilities.

The FWC fills a necessary role within the state and has excelled in many important prograJ11s, including the management of recreational uses such as hunting and fishing, land management, and scientific research. However, the agency's record on regulatory matters is weak. It is evident the State is not in the position to assume Section 10 pemlitting responsibilities for several reasons.

For one, past regulatory failmes by the FWC to act in a timely manner and take necessary measmes to protect state listed species from fWiher decline indicates that the state is unable to handle additional responsibilities. For example, between 1991 and 2007, the FWC allowed for the entombment of an estimated 94,000 gopher tortoises (along with potentially thousands of commensurate species that reside in gopher tortoise burrows). 55 This practice ceased in 2007 when the FWC prohibited this practice in the face of great

52/d

53 United States Telecom Assoc. v. F.Cc. 54/d

55 See Editorial, "Gopher Tortoise Reprieve Best Action for Our Future," St. Augustine Times, September 20,2007.

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public opposition. The fact that it took the FWC 16 years to stop this practice and the subsequent elevation of the species from one of "special concern" to "threatened" under the State Endangered and Threatened Species List,56 suggests that FWC will playa weak regulatory role in the administration of the Endangered Species Act. Indeed, just last month the FWC adopted changes to gopher tortoise permitting guidelines that reduced monitoring requirements for relocated tortoises with the objective of reducing . development costs. 57

Further, FWC has not assumed a leading role in commenting on proposed comprehensive plan amendments or environmental resource permits and when it does, the comments are rather limited. Over a two-year period, the FWC responded to commenting requests only about 20% of the time. Out of the 1,03 I requests for assistance received between January 2005 and August 2007, the agency responded to 238. 58 Many times the agency's response is a shOJi paragraph in an email or a one-page letter. The development of habitat conservation plans and the issuance of incidental take permits under Section 10 of the ESA is a time-consuming, involved process that requires signiiicant attention by the FWS as well as public involvement. As FWC has not been an active commenting agency when it comes to various projects, it is unlikely that FWC will take assume a leadership role in Section 10 permitting.

In addition, recent listing decisions by the FWC indicate it is not in the position to assume additional responsibilities under the ESA. For instance, the FWC has approved de-listing the Florida Black Bear. A federal court had found that the listing of the black bear was not warranted under the ESA, in part because of the supposed adequacy of state management plmming and land use restrictions. 59 Since that 2008 decision, the population remains unstable while habitat and vital corridors continue to be destroyed. Yet, the FWC has decided to remove this keystone species from its state list, even as the Chassahowitzka subpopulation has been reduced to a nadir of 20 bears, and as the Glades-Highlands subpopulation, below the threshold for viability, has become isolated fi'om other populations. This decision to delist is pmiicularly troubling given that habitat loss, as with so many species, is a primary threat to the long-term survival of black bears and the State has recently dismantled its Growth Management Act setting the stage for wide spread development without state review.

Further, in the wake of the cowi's recent decision in Miccosukee Tribe of Indians v. United States of America, wherein the court sharply criticized the State of Florida's failure to adequately protect its water resources, particulm'ly through its delegated duties

56 The significant decline in the gopher tortoise population has also prompted a recent petition to list the species under the ESA. Following a 90-day finding on the petition, the Service has initiated a status review to determine if listing the gopher tortoise in the eastern portion of the range is warranted, See 74 Federal Register 46401-46406 (September 9, 2009). 57 Florida Fish and Wildlife Conservation Commission, April 2008, Revised June 20 I O. Gopher Tortoise Permitting Guidelines. 58 Poole, Mary Ann, Officer of Policy and Stakeholder Coordination, FWC. Reply to Amber Crooks 9-4-07. Email to Amber Crooks. September 2007 response to public records request. 59 See Defenders of Wildlife v. Kempthorne, 2008 WL 590865 (D.D.C. Mar. 5,2008).

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under the Clean Water Act,60 it appears the state would be similarly unable to faithfully execute its duties to protect endangered and threatened species. If anything, the apparent lack of state leadership on environmental issues in recent years would support a finding that any further delegation offederal environmental permitting responsibilities should be precluded.

It is also unclear how the State will afford to carryout FWS' Section 10 authority. At a time when the State is experiencing deep budgetary cuts with many state employees losing their jobs and the relinquishment of all wildlife issues to the FWC under the new growth management legislation, it would appear that the FWC would be even more constrained in its ability to take on yet another regulatory program-especially one so important as permitting the take of federally listed species. While the federal government provides the States with funding to carry out their cooperative agreements, this amount is limited by Congress, and the Secretary disperses the funds based on several factors, including: international commitments; readiness of a state to proceed with a conservation program; the number of species residing in a State; potential for restoring a species; and the relative urgency of a program in terms of survival of the species.61 Also, states may not receive more than seventy-five percent of funds for a project from the federal government.62 It is unclear how the state of Florida would effectively undertake the additional responsibility of Section 10 permitting.

There are additional technical considerations. For example, currently, FWS can, with the consent of the pennittee, ask for additional land, water, or financial compensation or additional restrictions on the use of land, water, or other natural resources in a situation where unforeseen circumstances impacts species covered in an ITP. 63 It is unclear how the State would be able to compel a similar result, pat1icularly in light of the ongoing debate under Florida law whether FWC has any authority to regulate wildlife habitat and the recent dissolution of the Florida Depat1ment of Community Affairs and the dismantling of Florida's Growth Management Act. These factors cast doubt as to whether any state agency has the authority to impose any land use restrictions to benetit listed specIes.

60 See Miccosukee Tribe o/Jndians v. United States 0/ America, Case No. 04-21448-CIV-GOLD (April 26, 20 II): "What also is clear that the State of Florida ... have not been true stewards of protecting the Everglades in recent years ... The State's claim that it is being unfairly criticized is belied by, inter alia, the enactment of the Amended Everglades Forever Act ("EFA") to detrimentally change the State's previous water quality standards, the State's adoption of the disingenuous Phosphorus Rule to depm1 !Tom the strictures of the original EFA, and the failure of the SFWMD to even implement its mandated duties under the EGA. Most recently, the State's resistance to the water quality standards set by the EPA is evidenced by the Governor of Florida's authorization to FDEP to petition the EPA to rescind its January 2009 determination that the federally-imposed numeric criteria are necessary for Florida ... The primary purpose of this latest Order is to put into the hands of the EPA all the resources necessary to enforce its action plan and to implement its full power under the congressional Clean Water Act. By transfening the permitting authority to the EPA, consistent with the mandates under the Clean Water Act, the objectives set forth in the Amended Determination can be achieved ... It is time now for this significant step to occur. The EPA has represented that it wants to act It must be given the opportunity to do so." 61 50 C.F.R. § SI.4. 621d. § 81.8. 63 1d. § 17.22(b)(5)(iii)(B).

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Also, it is unclear how the State would address permit revocation. FWS may revoke a permit where: 64

(I) the permittee willfully violates any Federal or State statute or regulation ... which involves a violation of the conditions of the permit or of the laws or regulations governing the permitting activity; or

(2) The permittee fails within 60 days to correct deficiencies that were the cause of a pennit suspension; or

(3) the permittee becomes disqualified under 13 .21 (c) of this part; or

(4) A change occurs in the statute or regulation authorizing the permit that prohibits the continuation of a permit issued by the Service; or

(5) ... the population(s) of the wildlife or plant that is the subject of the permit declines to the extent that continuation of the permitted activity would be detrimental to maintenance or recovery of the affected population.

FWS has not proposed how the State would go about revoking a permit. Notably, this authority is only reserved for the Services.

Lastly, we have significant concerns that the effects of climate change will not be considered during the ITP decision-making process if the program is delegated to the State.

The ESA directs FWS to use "the best scientific and commercial data available" to ensure the approval of an ITP will not jeopardize a federally listed species. This best available science includes the best available information on climate change65 Indeed, FWS has developed HCPs in recent years that not only discuss the effects of climate change but also include monitoring and adaptive management programs to assist listed species in responding to climate change. In one such HCP, the Service has included a reserve design, which includes biological conidors that are intended to give the covered species the opportunity to adapt in response to changing climate conditions.66 Further, FWS recently armounced a Climate Action Plan that identifies mitigation strategies for addressing climate change. This plan recognizes the need to incorporate climate change plarming into wildlife management activities, including Habitat Conservation Plans.

Yet, it does not appear that Florida is similarly equipped to consider and plan for climate change impacts if it were to assume responsibility for incidental take permitting under the ESA. The best available science standard only applies to FWS and FWC regularly takes the position that it Calmot regulate habitat. Further, Florida does not have a climate change plan and the state legislature's recent dismantling of the Growth Management Act

M [d. § 13.28(a). 65 See NRDC v. Kempthorne, 506 F.Supp.2d 322 (E.D. Cal. 2007). 66 See Melina Taylor and Holly Doremus, Habitat Conservation Plans and Climate Change: Recommendations/or Policy. at II (2011) available at

http://www.law.berkeley.edu/files/HCPs_and_Climate _ Change.pdf.

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has precluded any action by the State to consider the effects of climate change when reviewing local land use decisions. Finally, FWS in its proposed Cooperative Agreement has not described how the state would incorporate climate change measures into incidental take permitting.

D. The Proposed Conservation Agreement and Draft EA are Entirely Silenfon the Preparation and Approval Process For Habitat Conservation Plans.

A critically imp0l1ant part of the ITP process is the development of Habitat Conservation Plans ("HCPs"). An HCP specifies how the applicant will conserve the affected species' habitat.67 The scope of an HCP may be limited to a discrete action, such as the construction of a home, or may be broader in nature, such as a county building permit program. 68

Perhaps one of the most important requirements ofHCPs is for the ITP holder to "minimize and mitigate" the impacts of the proposed taking to the "maximum extent practicable.,,69 The Services require that mitigation be based on "sound biological rationale" and that it be "commensurate with the impacts.,,7o The Services' HCP Handbook identifies two factors relevant in determining the adequacy of proposed mitigation: (1) the extent to which the proposed measures provide substantial benefit to the species, and (2) whether the amount of mitigation proposed is the maximum practicable in light of such factors as the relative costs and benefits of additional mitigation, the abilities of the applicant, and the amount of mitigation provided by other applicants in similar situations.71

Mitigation must be as consistent as possible for the san1e species, J2 and the Services may not base their approval of an HCP on the speculative possibility of future actions, such as an unknown an10unt offunding from an unknown third pm1y.J3

There is no discussion of the role FWC will play in the development of habitat conservation plans or the authority FWC would have under state law to enforce mitigation requirements. This is particularly troubling given the position that many in the state's regulatory community have taken over the years that FWC cm1 only regulate wildlife not habitat under state law. The potential therefore exists for FWC to permit significant take of listed species only to find itself powerless to enforce the mitigation requirements that the applicant agreed to at the time they received the permit. The proposed Cooperative Agreement notes that both FWS and FWC would retain enforcement authority but it makes little sense at this point to pursue the proposed action

67 16 U.S.C. § I 539(a)(2)(A). 68 See U.S. FISH & WILDLIFE SERvo & NAT'L MARINE FISHERIES SERV., HABITAT CONSERVATION PLANNING HANDBOOK 3-39 (1996». 69 16 U.S.c. § 1539(a)(2)(8). 70 HCP Handbook at 3-39. 71 [d. at 7-3. 72 See Sierra Club v. Babbitt. 15 F. Supp. 2d 1274, 1281 (S.D. Ala. 1998) (overturning the issuance of an ITP, because, among other things, FWS had inconsistently applied mitigation standards regarding the Alabama beach mouse to developments along the Alabama coast). 73 Id.

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if at the end ofthe day only FWS has the authority under the ESA to impose mitigation requirements dealing with habitat protection.

In addition, it appears that no corollary to habitat conservation planning exists under state law and it would therefore appear that FWC staiTwould be inexperienced in developing such plans. It could take significant training and allocation of resources before FWC staff is prepared to handle such tasks.

E. It is Unclear Whether the Public Would Retain the Ability to Comment on Proposed ITP decisions.

The Services are required to publish in the Federal Register each application for an ITP and shall invite written data, views, or arguments about the application. 74 If the proposed Cooperative Agreement is adopted, the authority to issue an ITP would be transferred to the State and FWS would presumably no longer publish applications in the Federal Register. It is unclear where, if any, such applications would be noticed much less whether the state would permit public conmlent.

F. It is Unclear How Citizens Would Challenge the Issuance of an Incidental Take Permit.

CWTentIy, a citizen can challenge the issuance of an Incidental Take Permit and biological opinion under the federal Administrative Procedure Act CAP A"). 75 If the proposed Cooperative Agreement is adopted, the authority to issue an ITP would be transferred to the State and FWS would not conduct intra-service consultation or produce a biological opinion. It is unclear how citizens would challenge the issuance of an ITP as the APA only applies to the federal government.

II. National Environmental Policy Act Compliance

A. FWS Must Prepare an EIS.

The National Environmental Policy Act ("NEPA") is America's "basic national charter for protection of the environment.,,76 NEPA ensures that federal agencies "will have available, and will carefully consider, detailed information concerning significant environmental impacts" and that such iniornlation "will be made available to the larger [public] audience.,,77

To this end, NEPA requires federal agencies to prepare a detailed Environmental Impact Statement ("EIS") for any "major federal action significantly affecting the quality of the human environment.,,78 To detennine whether the environmental impact of a proposed project is significant enough to warrant the preparation of an EIS, the agency will often prepare an EnvirOlilllental Assessment ("EN'). An EA is "a concise public document that

74 50 C.F.R. § 17.22. 75 See Bennetl v. Spear, 520 U.S. 154 (1997). 76 40 C.F.R. § 1500.1 (a). 77 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). 78 42 U.S.C. § 4332(2)(C).

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briefly provides evidence and analysis for determining whether to prepare an EIS or a finding of no significant impact.,,79 The Eleventh Circuit Court of Appeals has held that when an EA is performed on a project, the agency must take a "hard look" and "must make a convincing case" for a Finding of No Significant Impact and decision not to perform an EIS 80 If "substantial questions as to whether a projec!",may cause significant degradation of some human environmental factor," an EIS must be prepared,sl .

The Council on Environmental Quality ("CEQ") has promulgated regulations to guide agencies in determining whether a proposed proj ect will have "significant" impacts to the environment82 Whether an action will have a "signi±icant" impact on the environment, thus warranting the preparation of an EIS, requires considerations of both "context" and "intensity." "Context" means that the significance of an action must be analyzed in several different contexts (i.e. national, regional, and local significance of the action). "Intensity" refers to the severity of the impact. The CEQ regulations set forth several factors for the FWS to consider when evaluating intensity, including, but not limited to:

• The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks;

• The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration;

• The degree to which the action may adversely affect an endangered or threatened species or its habitat that bas been determined to be critical under the Endangered Species Act of 1973Y

1. There is Not Enough Information and Impacts are Unknown.

The Draft EA states that effects of the proposed Cooperative Agreement are "too broad, speculative, or conjectural to lend themselves to meaningful analysis."

The CEQ regulations make clear, a factor in determining whether an EIS is warranted is "the degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks."s4 As the Court in National Park and Conservation Ass'n v. Babbitt, explained:

79 40 C.F.R. § 1508.9. See also 33 C.F.R. § 230.10. 80 Hillv. Boy, 144 F.3d 1446 (11th Cir. 1990). See also. Save the rook Committee v. Block, 840 F.2d 714, 717 (9th Cir. 1988) (stating that an agency must supply a "convincing statement of reasons" to explain why a project's impacts are insignificant). 81 Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1149 (9th Cir. 1998). It must also be noted that for a court to find that an EIS is warranted, "a plaintiff need not show that significant effects will in fact occur" only that there are "substantial questions whether a project lllay have a significant effect on the environment." Id. at I I SO. 82 See 40 C.F.R. § IS08.27. 83 Jd § IS08.27 (emphasis added). 84 Jd § IS08.27 (b)(S).

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An agency must generally prepare an EIS if the environmental effects of a proposed action are highly unceliain ... Preparation of an EIS is mandated where uncertainty may be resolved by further collection of data ... or where the collection of such data may prevent speculation on potential. .. effects. The purpose of an EIS is to obviate the need for speculation by insuring that available data are gathered and analyzed prior to the implementation of the proposed action. 85

Neither a Categorical Exclusion nor an EA would be appropriate in this instance because FWS has no idea which species or habitats would be affected by the proposal, let alone any idea about the effects the action would have on these species. FWS merely states that "at this juncture" the FWS and FWC have not yet determined the listed species whose take would be authorized through the proposed agreement, but makes no further mention of when they expect to make such a determination. FWS' attempts to deal with these impacts in such a cursory manner, and essentially defer its analysis of the environmental effects to some future, unidentified NEP A documents for future planning decisions, flies in the face of the "hard look" test required under NEPA. 86 As the Fifth Circuit remarked in Fritiofson v. Alexander, the agency "cannot avoid NEP A responsibilities by cloaking itself in ignorance."s7

2. The Proposed Project Establishes Precedent for Future Actions With Significant Effects

"Significance" is also established where it can be demonstrated that the proposed project establishes a precedent for future actions with significant effects or represents a decision in principle about a future consideration. FWS' reliance on an EA to address the environmental impacts of the proposed project is improper because FWS acknowledges the proposed Cooperative Agreement will likely be the first of numerous cooperative agreements across the nation delegating the administration of Section 10 of the Act to state wildlife agencies. In such instances, an EIS, not an EA, must be prepared.

3. There may be Cumulatively Significant Impacts to Endangered Species.

An additional significance factor supporting the need for an EIS is that the delegation of Section 10 permitting responsibilities will likely have a significant cumulative effect on a nWllber of endangered species given the shear number of listed species that may be the subject of the proposed delegation.

B. The Draft EA is Inadequate Under NEPA.

In addition to the fact that FWS has violated NEPA by not preparing an EIS in this instance, the Draft EA also runs afoul ofNEPA because it fails to adequately consider and analyze the environmental effects and alternatives to the proposed action.

85 241 F.3d 722 (91h Cir. 200 I) (internal citations omitted). 86 1d. at 733. 87 772 F.2d at 1225, 1244 (51h Cir. 1985).

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1. The Draft EA Fails to Provide An Accurate and Well Supported Statement of the Project's Purpose and Need.

The NEP A planning begins with an identification of the purpose and need for a project. NEPA's implementing regulations provide that an environmental document should specify the underlying purpose and need to which the agency is responding in proposing the alternative including the proposed action,88

The purpose and need statement for this proposed action is entirely inadequate and the Draft EA provides little support for the proposed Cooperative Agreement. The purpOlied purpose of the Cooperative Agreement "is to improve the current rate of recovery of species listed under the Act by influencing the nature, extent, and location of impact avoidance, minimization, and mitigation measures associated with the incidental take permitting process, and to reduce unnecessary duplication of effort,',89

Throughout the purpose and need section, FWS reiterates the need to reduce "duplicative permitting," and achieve "more predictable outcomes" and "compressed permitting timeframes," Yet, there is no explanation as to why the current process is preventing FWS £i'om achieving its recovery mandate under the Act, why duplicative permitting is an obstacle to species recovery, or why more predictable outcomes and a more "compressed" or "streamlined" permitting process will aid in the recovery of listed species. In fact, FWS readily acknowledges that the existing Cooperative Agreement "functions as well as any in the Nation." Further, to the extent that FWS contends that it has broader conservation responsibilities that are not just limited to listed species, is unavailing as Congress has charged FWS with insuring that the continued existence of federally listed species is not jeopardized by its decisions.

Moreover, if a chronic lack of funding for endangered species conservation is influencing FWS' decision to make such sweeping changes to its Section 10 permitting program, the Act makes no exception under these circumstances yo Moreover, for reasons explained earlier it would make even less sense to delegate such responsibilities to the State during a time of deep budget cuts and job losses.

FUliher, FWS' argument that its "conservation mission is not limited to listed species, and it needs to manage our responsibilities under Section 10 of the Act to facilitate and produce conservation benefits as much as practicable fiJr other species at the landscape level," misapprehends its responsibilities under the Act. While the Act seeks to achieve both the recovery of endangered and threatened species and the conservation of ecosystems upon which they rely, and the conservation of non-listed species is certainly a desired consequence ofFWS' conservation effOlis, FWS has no independent statutory mandate to conserve non-listed species under the ESA. That duty arises under other federal laws such as the Migratory Bird Treaty Act and the National Wildlife Refuge

88 40 C.F.R. § 1502.13 (emphasis added). 89 Draft EA at 3. 90 See Forest Guardians v. Babbill, 174 F.3d 1178, 1192 (10th Cir. 1999) (rejecting the Service's claim that it need not comply with statut01Y mandate due to "inadequate resources"); Cll'. for Biological Diversity v. Norton, 304 F. Supp. 2d 1174, 1180, 1182 (D. Ariz. 2003) (ruling that the mandatory language of the ESA does 110t allow the heavy workload afthe agency to excuse compliance).

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Improvement Act. While FWS is indeed correct that its responsibilities as a wildlife agency extend beyond listed species and FWS may have implicitly relied on these other statutes to support is statement, the statement conflates its non-listed species conservation responsibilities with its responsibilities under Section 10 of the ESA and has no support under the law.

It is critical that FWS provides an accurate and well-suppOlied purpose and need statement. Because the pUlJiose and need of a desired action necessarily dictates the range of reasonable alternatives, I it is imperative that FWS develop an accurate statement of the purpose and need for this action so as not to rule out additional, and perhaps more enviromllentally benign alternatives from further consideration.92 In this instance, it would appear that there is little evidence to support a finding that the existing Section 10 permitting program in Florida (or anywhere else for that matter) is failing, and that the purported need for this project is as great as FWS claims. This in tum, would not support the modifications proposed to the Cooperative Agreement in the action alternative and support the selection of another altemative that would allow a continued Cooperative Agreement with the FW C similar to the existing Agreement. 93

2. The Draft EA Fails to Contain a Reasonable Range of Alternatives.

NEPA requires a "detailed statement" of "alternatives to the proposed action. ,,94 The altematives analysis should address "the environmental impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues and providing a clear basis for the choice among options by the decisionmaker and the public.,,95 This analysis must "rigorously explore and objectively evaluate all reasonable alternatives.,,96

The purpose of this section is "to insist that no major federal project should be undertaken without intense consideration of other more ecologically sound courses of action, including shelving the entire project, or of accomplishing the same result by entirely different means.'097 The Council on Enviromnental Quality describes the alternatives requirement as the "heart" of the environmental impact statement.98 While an agency is not obliged to consider every alternative to every aspect of a proposed action, reviewing courts have insisted that the agency "consider such altematives to the proposed action as may partially or completely meet the proposals goal.,,99

91 See City of Carmel-By-the Sea v. Dept. ofTransp., 123 F.3d 1142, 1155 (9th Cir. 1997). 92 See Citizens Against Burlington, Inc., 938 F.2d at 196. 93 U.S. Fish and Wildlife Service, Florida Fish and Wildlife Conservation Commission, 2001. Cooperative Agreement Between the United States Department of Interior Fish and Wildlife Service and Florida Fish and Wildlife Conservation Commission for the Conservation of Endangered and Threatened Fish and Wildlife. 9< 42 U.S.c. § 4332(2)(c). 95 40 C.F.R. § 1502.14. 96 1d. § 1502.14(a). See also Muckleshoot Indian lI'ibe v. United Siaies Forest Serv., 177 F.3d 800, 811 (9th Cir. 1999) (agency failed to consider an adequate range of altematives when an EIS considered only a no action alternative along with two "virtually identical" action alternatives), 97 Environmental Defense Fundv. Corps afEngineers, 492 F.2d 1123, 1135 (5th Cir. 1974). 98 40 C.F.R. § 1502.14. 99 Naturol Resources Defense Council, Inc. v. Callaway, 524 F 2d. 79, 93 (2d Cir. 1975).

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The Draft EA fails to "rigorously explore" and "objectively evaluate" all reasonable alternatives to the project; instead it impermissibly restricts its analysis to a single alternative-the proposed cooperative agreement. 100 There is no discussion of any other alternative shOli of delegating the Section 10 program to the state. Such a limited analysis is grossly inadequate under NEP A.

The No Action Alternative

FWS' treatment of the "no action" alternative is inadequate and the Draft EA provides little support for its decision to reject this alternative because it would not meet the project's purpose. Other than the suggestion that the no action alternative would "preclude the anticipated additional conservation and socio-economic benefits for the proposed action," there is no analysis of the benefits the existing agreement currently provides much less a reasoned, detailed discussion of why preserving the status quo would have an undesirable effect on federally listed species. Significant questions remain as to the "need" for the proposed project at this point and without any reasoned explanation as to why the no action alternative should not be pursued, the FWS' dismissive treatment of the "no action" alternative is at the very least premature.

The Action Alternative

FWS' alternatives analysis hardly amounts to a rigorous examination and objective evaluation of all reasonable alternatives and fails to satisfy the requirements ofNEPA.

FWS offers a single action alternative, which when viewed together with the no action alternative sets up an "all or nothing" like proposal. Courts have invalidated NEPA documents similar to the one at issue here where any agency analyzes just two or three alternatives. lol In addition, the CEQ regulations explicitly prohibit an agency from rejecting an alternative because it is not within the jurisdiction of the lead agency, as is the case here where FWS appears to have dismissed other alternatives because they would require the state of Florida to amend its administrative code. I 02 Further, to the extent FWS argues that it will not evaluate other alternatives because they are not anticipated to have the same benefits as the proposed action also fails as a matter of law. lIi3

100 See. e.g., California v. Block, 690 F.2d 753, 768 (9th Cir. 1982) (affirming the district court's rejection of an analysis that "consider[ed] ITom the outset only those alternatives leading to [the agency's desired] end result."); Simmons United States Army Corps o/Engrs., 120 F.3d 664, 669 (stating that "an agency cannot restrict its analysis to those alternative means by which a particular applicant can reach his goals') 101 See, e.g. Muckleshoot Indian Tribe v. United States Forest Serv., 177 F.3d 800, 811 (9th Cir. 1999) (agency failed to consider an adequate range of alternatives when an EIS considered only a no action alternative along with two "virtually identical" action alternatives); CUrl)) v. u.s. Forest Service, 988 F. Supp. 541,553 (W.o. Penn. 1997) (holding that an EA which only addressed a "no action" alternative and the "proposed action" alternative violated NEPA 's mandate to consider a range of alternatives). \01 See 40 C.F.R. § 1502.14(c) (reasonable alternatives include those not within the jurisdiction of the lead agency), 103 As stated earlier, reviewing courts have insisted that the agency Hconsider such alternatives to the proposed action as may partially or completely meet the proposals goal." Natural Resources Defense Council, Inc. v. Callaway, 524 F 2d. 79, 93 (2d Cir. 1975).

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More than just an "all or nothing" approach must be considered is not just a requirement under NEP A but it would appear that a host of improvements could be made to the cooperative agreement short of amending the agreement to delegate FWS' Section 10 responsibilities to the State. For instance, FWS may want to draw upon the tremendous research capabilities the FWC has to offer and develop a cooperative agreement that harnesses the state's research and monitoring strengths to improve the manner in which FWS monitors and tracks the level of "take" resulting from Section 7 and/or Section 10 decisions. A recent GAO report recently found that FWS currently lacks any sort of programmatic or comprehensive approach to tracking and monitoring take and perhaps a proj ect agreement between FWS and FW C and prepared pursuant to a revised cooperative a~reement could make significant strides in this area of species monitoringW This is just one of many approaches that FWS may want to consider, and we encourage FWS to engage the public in identifying additional alternatives.

At the very least, continuance of a cooperative agreement similar to what the agencies have been operating under for the past ten years should be one such additional alternative. lOS

C. There are Additional NEP A Considerations.

Issuance of an ITP is a Federal action subject to NEP A I06 Depending on the scope and impact of the HCP, an EA or EIS may be required. In order to comply with NEP A, FWS determines whether the HCP is "low effect" or not. 107 Relevant factors include the effect on the distribution or population level of the species. Some "low-effect" ITPs are categorically excluded from NEPA review, others must undergo NEPA analysis. 108

Once the ITP program is delegated to the states, it would appear that no NEP A document would be required for any ITP issued by the FWC as only federal agencies are subject to the requirements ofNEP A There is no corollary to the NEPA process under Florida state law. Without such a process in tact the environmental effects of incidental take permits will go unexanlined and the public will be further restricted from engaging in the decision-making process.

Ill. Administrative Procedure Act Compliance

A. The Delegation of Incidental Take Permitting to the States Represents a Fundamental Shift in FWS Poliey and Is Subject to Notice and Comment Rulemaking Under the APA.

104 See Jason Totoiu, QuantifYing, Monitoring, and Tracking 'Take' Under the Endangered Species Act: The Promise of A More [njimned Approach to Consultation, 41 Envtl. L,165 (2011).

105 U.S. Fish and Wildlife Service, Florida Fish and Wildlife Conservation Commission, 2001. Cooperative Agreement Between the United States Department ofInterior Fish and Wildlife Service and Florida Fish and Wildlife Conservation Commission for the Conservation of Endangered and Threatened Fish and Wildlife. 106 See. generally, HCP Handbook, Chapter 5. 107 HCP Handbook at 1-8. 108 See 63 Fed. Reg. 35,242 (June 1,2000).

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The federal Administrative Procedure Act ("APA") requires agencies to afford notice of a proposed rulemaking and an opportunity for public comment prior to promulgating a rule. 109 The term "rule" is defined rather broadly to mean "the whole or a pm1 of an agency statement of general or pm1icular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency .... "IIO The APA does not require full notice:and­comment-procedures for "interpretive" rules, general statements of policy, or rules of agency organization, procedure, or practice. III A policy statement "expresses the agency's view of what another rule, regulation, or statute means,,112 and "only reminds affected pmies of existing duties."ll3 It is not finally determinative of the issues or rights to which it is addressed. 114 An interpretive rule or policy statement is usually non­binding, instructional and explanatory, whereas a substantive rule grants rights, imposes obligations or effects a change in existing law. 115

The AP A provides that "[gJeneral notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law.,,116 The APA further provides that:

After notice required by this section, the agency shall give interested persons an opportunity to pm1icipate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purposes. ll7

As the D.C. Circuit remm'ked, "the notice requirement improves the quality of agency rulemaking by exposing regulations to diverse public comment, ensures fairness to affected parties, and provides a well-developed record that enhances the quality of judicial review.,,118

As explained above, the use of a cooperative agreement to delegate incidental take permitting authority to the state of Florida violates the doctrine of unlawful subdelegation, and for that reason alone should be eliminated from further consideration. Even if the Service had the authority to vest ITP responsibilities to a third party (such as the state), the Service's decision to accomplish this through a cooperati ve agreement rather than go through notice and comment rulemaking violates the AP A. The proposed Cooperative Agreement allowing for the delegation ofITP duties to the State constitutes

109 5 U.S.C. § 553(b), (e). lIO Id. § 551 (4),553. Ill/d. § 553(b)(3)(A). 112 Allied Van Lines, Inc. v.I.e.e., 708 F.2d 297, 3000 (7th Cir. 1983). 113 A . mencan Medical Association v. Heckler, 606 F. Supp. 1422, 1439 (S.D. Ind. 1985). !14 A . 115 mencan Bus Assoc. v. Uniled Slales, 627 F.2d 525, 529 (D.C. Cir. 1980). 116 BP Exploralion & Oil, lnc. v. U.S Dep'l a/Transportation, 44 F. Supp. 2d 34, 37 (D.D.C. 1999).

5 U.S.C. § 553(b). 117 !d. § 553 (e). lIS S . C' prtnl O/p. v. F.e.e., 315 F.3d 369,374 (D.C. Cir. 2003).

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more than just a statement or interpretation of existing agency policy or law, it marks a radical and fundamental shift in the way FWS administers Sections 10 and 6 of the ESA. FWS has chosen to make such sweeping changes through a cooperative agreement (something more akin to a memorandum of understanding or agreement) rather than promulgating new regulations under 50 C.F .R. § 17 (Incidental Take Permitting) and 50 C.F.R. § 81 (Section 6 Agreements). As the D.C. Circuit has found, "if a document • expresses a change in substantive law or policy (that is not an interpretation) which the agency intends to make binding, or administers with binding effect, the agency may not rely upon the statutory exemption for policy statements, but must observe the AP A's legislative rulemaking procedures.,,119 That the proposed approach may be a precedent for similar delegations in the future is all the more reason why notice and comment rulemaking is necessary so that the public can fully engage in the decision-making process.

IV. Additional Shortcomings

A. The Draft EA and Proposed Cooperative Agreement Do Not Provide For Meaningful Public Comments.

The Draft EA fails to adequately provide for meaningful public comments. In the Draft ENs section on "public participation" FWS states that the "public was extensively involved in the development of the Commission's revised imperiled species rules ... through 15 stakeholder sessions that occurred from February 2008 through July 2010," that there were three public comment periods in 2009, and additional oppOliunities for public comment at various Commission meetings. FWS then quickly notes that it is providing the public an 0ppOliunity to comment on the revised permitting processes in the proposed action in the EA.

It is disingenuous for FWS to suggest that the public has been actively engaged in the federal decision-making process through the State's rulemaking process. There is no mention of federal delegation to the State of Florida anywhere in the revisions to Rule 68A-27.007, Florida Administrative Code (F.A.C.). There is no mention of, reference to, or incorporation of the proposed agreement in the state rule revisions. In fact, the only pari of the revised rules that could have been relevant to the proposed federal action were changes to Rule 68A-27.007, F.A.C. that eliminated the need for what the FWC deemed "duplicative" permitting when species were both listed by the state Act and the ESA. However, the new language in Rule 68A-27.007 states that an FWC take permit is not necessar'y when there is an existing Section 10 permit under the ESA. For over a year during the State's rulemaking process, the Conservancy of Southwest Florida objected to the deferral of State regulatory responsibilities solely to the federal wildlife agencies when species were listed by both the state and federal agencies. The Conservancy provided several letters to the FWC staff and Commissioners with concerns about the issue emphasizing that both provide a complimentary, not duplicative, role of both

119 General £lee. Co. v. EPA, 290 F.3d 377, 383-84 (D.C. Cir. 2002).

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agencies in protecting imperiled species. At the Commission hearing in September 2010, the Conservancy again brought up concerns about this element of the rule.

Now, for reasons not explained by FWS, the exact opposite approach is being considered here where FWS wants to defer pennitting decisions to the FWC. If anything, the FWC rules contemplate an approach entirely opposite of that proposed in the draft Cooperative Agreement and EA. Moreover, the fact that the proposed Cooperative Agreement is a federal action, which could set a precedent for future actions well beyond the State of Florida should compel FWS to establish a meaningful opportunity to engage the public that goes beyond any level of participation the public may have been afforded at the state level.

B. The Draft EA's Vague References to the Development of Future "Permitting Guidelines" Prevents the Public From Providing Meaningful Public Comments.

FWS fails to discuss in any sufficient detail the "pennitting guidelines" that it intends to prepare in the future for FWC to assist the agency in its delegated permitting duties, thus making it nearly impossible for the public at this time to sufficiently comment on the proposed approach. There are no details on what these guidelines will consist of, whether they will be based on the strict requirements set forth by Section 10 of the ESA and the implementing regulations, and what the purported inclusion of "best management practices" will entail.

C. It is Unclear How the National Marine Fisheries Service's ITP Program Will Be Affected By the Proposed Agreement.

There is additional uncertainty as to NMFS' role in the proposed agreement. For instance, it is unclear in instances when an ITS is required from both FWS and NMFS what will be required from the Services, the State and the applicant.

V. Conclusion

We are grateful for the additional time to present FWS with comments on the proposed Cooperative Agreement. In sum, we do not believe the proposed approach set forth in the proposed Cooperative Agreement and Draft EA is warranted, much less consistent with applicable federal law. We urge FWS to abandon its proposed delegation of Section 10 pernlitting responsibilities to the State of Florida.

If you have any questions, please do not hesitate to contact us. Thank you for your consideration.

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Sincerely.

sl J aclyn Lopez Jaclyn Lopez, Staff Attorney Center for Biological Diversity 520-360-0194 j I opezia1bi 01 ogi cal di versi ty. org

s/Jelmifer Hecker Jennifer Hecker, Dir. of Natural Resource Policy Conservancy of Southwest Florida 239-262-0304 ext. 250 jenniferh@conservancy.org

Cc: Amber Crooks, Conservancy of Southwest Florida Dave Hankla, FWS Tim Breault, FWC Elsa Haubold, FWC Nick Wiley, FWC

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s/Jason Totoiu Jason Totoiu, General Counsel Everglades Law Center 561-568-6740 jasonia1evergladeslaw.org

s/Matthew Schwartz Matthew Schwartz, Exec. Director South Florida Wildlands Association 954-634-7173 southfloridawild@yahoo.com