Recovery Planning
Advances
Cherise M. Oram
Stoel Rives LLP
Northwest Environmental Summit
October 20, 2005
Legal Framework
 How
does recovery planning fit into
ESA’s overall scheme
 Recent developments in the law
 Why recovery planning is important
for project proponents
Relevant ESA Provisions
 Section
4: listing and critical habitat
designation; recovery planning
 Section 7: federal consultation
requirement (“Section 7 consultation”)
 Section 9: prohibition on take
 Section 10: permits (e.g., HCPs)
ESA Section 4(f)
Requires development of recovery plans
unless it will not promote species
conservation.
 No deadline for issuing recovery plan.
 Include site-specific management actions
necessary to achieve species conservation
and survival.
 Include objective, measurable criteria.

Recovery plans are not action forcing on
their own.
 They build a record that guides permitting
actions, 4(d) rules, grant funding, etc.

 Example:
To obtain HCP permit, the
applicant must show plans to minimize and
mitigate to the maximum extent practicable.
An HCP that aligns with the recovery plan
will more easily meet that standard.

Recovery plans now play a central role in
Section 7 consultations too.
Gifford Pinchot Task Force v. USFWS
August 6, 2004
 “Destruction
or adverse modification”
of critical habitat is defined as
occurring when an action appreciably
diminishes habitat value for both
survival and recovery.
 Definition
caused analysis of effects to
critical habitat to focus on survival.
Gifford Pinchot Task Force v. USFWS

9th Circuit Court of Appeals invalidated the
definition because it ignored recovery
component of critical habitat.

Holding: Destruction or adverse modification
can occur when critical habitat is effected in a
manner that would appreciably diminish
recovery prospects.

USFWS issued interim guidance: discuss how
action will effect habitat qualities essential to
species conservation.
National Wildlife Federation v. NMFS
May 26, 2005

Judge Redden found that the 2004 biological
opinion on operation of the federal Columbia
River dams did not properly consider recovery
in the context of its jeopardy analysis.

Extended Gifford Pinchot to jeopardy definition
(appreciably reduce likelihood of survival and
recovery in the wild).
Biological opinions must now analyze not
only extent to which proposed action will
effect survival, but also must consider
effects on opportunities to recover the
species.
 Where a recovery plan exists (final or
draft), it is presumed the best available
science on the issue of recovery.
 Biological opinions will now consider how
proposed actions align with recovery plans.
 Where no recovery plan, use best science.

Participate in Recovery Planning




Recent case law underscores importance of
participating in (or at least monitoring) recovery
planning efforts as project proponent.
Goal is to make sure recovery plan aligns with (or at
least doesn’t conflict with) the project and any
proposed mitigation.
Recovery plan can even contemplate or cite to
conservation aspects of project.
At a minimum, involvement will help proponents
determine where a project might conflict with a
recovery plan and give proponents an opportunity to
cure the conflict.