U.S. Fish and Wildlife Service Proposes Delisting Valley Elderberry Beetle
Water Law Update
For more than 30 years, the valley elderberry longhorn beetle has been listed as a threatened species under the Federal Endangered Species Act. Because the beetle makes its home in the elderberry bush, which inhabits the shoreline along streams and ditches, its protection has made the maintenance of levees and drainage ditches much more costly and time-consuming. To the relief of many, the U.S. Fish and Wildlife Service (FWS) recently issued a proposed rule that, if finalized, would remove the beetle from the list of threatened species.
The valley elderberry longhorn beetle, or VELB, is completely dependent on its host plant, the elderberry (Sambucus species), a common component of the remaining riparian forests and adjacent upland habitats of California’s Central Valley. For this reason, FWS also designated the elderberry as critical habitat for the VELB.
In July 1999, FWS promulgated VELB “conservation guidelines”—a protocol for projects in the vicinity of the VELB or elderberry. This protocol requires extensive surveying of project sites, elaborate avoidance procedures, transplanting of elderberry bushes that cannot be avoided, and long-term monitoring after project construction. For example, each elderberry bush on or adjacent to the project site must be measured to determine if it has stems one inch or greater in diameter, must be examined for bore holes, and then tallied according to diameter size class. The protocol requires the use of 100 foot “avoidance” buffer zones, and requires the creation of a conservation area for transplanting of elderberry bushes that are in the project area. These requirements—explained with much greater specificity in the protocol itself—historically have added significant time and expense to many projects in the Central Valley, in particular flood control projects.
In 2005, as part of the settlement of a lawsuit, the FWS undertook a status review of the VELB. The review made a detailed study of the VELB’s status and the nature of threats to it and recommended delisting it. The status review was never acted upon by FWS, however, and the VELB continues to be listed as threatened.
In 2010, the Pacific Legal Foundation filed a legal petition with FWS requesting that it remove the VELB from the list of threatened species. In response in 2011, FWS issued a finding concluding that the petition contained “substantial information that delisting the beetle may be warranted.” FWS thereafter initiated a status review for the VELB, and the proposed rule is the outcome of that process.
The Federal Register notice cites increased VELB population numbers as a major basis for proposing the beetle’s removal from the list of threatened species. At the time of its listing, the VELB was recorded in only three counties from 10 occurrence records: Merced, Sacramento, and Yolo. Currently, there are 201 occurrence records for the VELB in 26 locations, including much of the Sacramento and San Joaquin Valleys, from Shasta County to Kern County. FWS noted extensive riparian vegetation restoration in the Central Valley and the continued abundance of elderberry bushes as additional reasons supporting delisting. FWS is accepting public comments on its proposed rule until December 3, 2012.
FWS’s proposed delisting of the VELB will no doubt come as welcome news to water districts, flood control districts, and water project operators up and down the Central Valley. Although compliance with the Endangered Species Act is a routine concern for infrastructure projects, historically the VELB has distinguished itself in California as one of the most challenging and costly species to avoid. The VELB’s critical habitat, the elderberry bush, has remained so commonplace in riparian corridors within the Central Valley that compliance with FWS’s VELB protocol regularly balloons the cost of infrastructure maintenance or improvements.
Please note that the information contained in this article is not intended to provide legal advice. You should consult with an attorney and not rely on any information contained herein regarding your specific situation.