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  • Audio file (If file doesn’t begin playing immediately, right-click to download it and then listen) USGS links Assessment of undiscovered oil resources in the Bakken and Three Forks Formations, Williston Basin Province, Montana, North Dakota, and South Dakota, 2013 Input-form data for the U.S. Geological Survey assessment of the Devonian and Mississippian Bakken and Devonian Three [...]

  • Other links Pesticide report leaves tough questions unanswered (Defenders of Wildlife) Feds Are Failing to Protect Endangered Species From Pesticides (Center for Biological Diversity) Press release from National Research Council (4/30/2013) Federal Agencies Should Use a Common Approach to Evaluate Risks That Pesticides Pose to Endangered and Threatened Species WASHINGTON — When determining the potential effects [...]

  • “W.Va. members of Congress promise action against EPA” is the headline in the West Virginia Record, whose article noted that 80 percent of the state’s congressional delegation had posted press releases criticizing the D.C. Circuit’s decision that said EPA had the authority to partially revoke a permit for the Spruce Mine. (Only Jay Rockefeller appears [...]

  • The National Academy of Sciences’ National Research Council will release a report next week evaluating the effects of pesticides on threatened and endangered species. Here’s the statement from NAS: Evaluating Risks That Pesticides Pose to Endangered, Threatened Species – New Report A new report from the National Research Council examines how the U.S. Environmental Protection [...]

  • U.S. District Court Judge Joseph C. Spero dismissed an ESA citizen suit seeking to force consultation under the ESA “regarding the effects of 382 registered pesticides on endangered and threatened species” (Center for Biological Diversity v. EPA, 11-293-JCS, N.D. Cal.). “Plaintiffs have not pled sufficient facts to show that the EPA was required to reinitiate [...]

  • The D.C. Circuit reversed and remanded a lower court decision that had scolded EPA for revoking a Clean Water Act permit that already had been approved by the U.S. Army Corps of Engineers (Mingo Logan Coal Co. v. U.S. EPA, 12-5150, 4/23/13). Wrong, the appeals court said. “[W]e reverse the district court insofar as it [...]

  • Daily Digest (April 19, 2013): Asian elephant shot, loggerhead sea turtle egg snatcher sentenced, DOI budget proposed

    Catching up on the Fish and Wildlife Service: The service’s main page features the following news releases: FWS is investigating the shooting of an Asian elephant traveling with Ringling Brothers and Barnum and Bailey Circus in Tupelo, Miss. “The incident occurred in the early morning of April 9, 2013, outside the Bancorp South Arena,” the [...]

  • Daily Digest (April 17, 2013)

    The American Bird Conservancy is touting a study that concludes feral cats are killing endangered Hawaiian petrels. The proof is in the pictures, ABC said. For the first time, videos were taken showing cats preying on petrels. In one, a feral cat “wait[ed] near the entrance of a burrow for over one hour.  When the [...]

  • Link to the full document The Obama Administration today released its National Fish, Wildlife and Plants Climate Adaptation Strategy, which the service said “provides a roadmap of key steps needed over the next five years to reduce the current and expected impacts of climate change on our natural resources, which include: changing species distributions and [...]

  • Audubon writer Ted Williams suspended, pulled from masthead, for Orlando Sentinel column on feral cats

    Update, 3/25/13: The media are starting to take note of Williams’ suspension. See the article and the list of links below for more coverage of this story. Veteran conservation journalist Ted Williams, who for years has penned the Incite column for Audubon magazine, has been suspended and had his name removed from the publication’s masthead, [...]

Judge Walton will consider four “extra-record” documents in coal industry suit over EPA 404 permit guidance

 Posted by on April 20, 2012  Daily Links
Apr 202012
 

Friday, April 20, 2012 – A federal judge ruled today that when he decides a mining industry challenge to EPA-issued guidance on 404 permits, he would take into consideration four documents not presently in the record (Nat’l Mining Ass’n v. Jackson, 10-1220 RBW, D.D.C.).

But at the same time, U.S. District Judge Reggie B. Walton rejected the plaintiffs’ motion to add eight other documents to the record:

[T]he crux of the plaintiffs’ argument seems to be that because the documents predate the issuance of the Final Guidance and were either authored by EPA employees or sent to EPA employees by the [Kentucky Division of Water], they should be added to the administrative record. See id. at 9-10. It is not enough for the plaintiffs to assert that “the EPA knew about these” documents, Pls.’ Reply at 4; rather, the plaintiffs “must offer non-speculative grounds for their belief that the [agency] actually considered [the documents in question].” Marcum, 751 F. Supp. 2d at 81 (emphasis added). And the plaintiffs have not done so here.

“The court will consider the final four documents at issue as extra-record evidence because they shed light on an issue not addressed by the administrative record itself,” Walton said. “While the administrative record is not so bare as to frustrate judicial review as to all of the plaintiffs’ claims, it is entirely bare as to how the EPA has applied the Final Guidance.”

Walton, who has already ruled previously in the case, said he would “consider these documents in connection with the plaintiffs’ claim that the EPA has applied the Final Guidance as a binding rule.”

Those four documents are:

  • Letter from EPA employee James D. Giattina, to KDOW employee Sandy Gruzesky, dated Sept. 28, 2011 (Document 9)
  • Letter from EPA employee James D. Giattina, to KDOW employee Sandy Gruzesky, dated Sept. 28, 2011 (Doc. 10)
  • Affidavit of KDOW employee R. Bruce Scott (Doc. 11)
  • Letter from NPDES Branch, EPA Region III employee Evelyn S. MacKnight, to Division of Mining & Reclamation, West Virginia Department of Environtmental Protection (“WVDEP”) employee Jeffrey Parsons, dated Nov. 20, 2011 (Doc. 12)

Walton added that “[h]aving concluded that the four documents postdating the issuance of the Final Guidance are appropriate for consideration as extra-record evidence,” he did nlot need to address the parties’ arguments over whether he should actually “take judicial notice of these documents.”

Here’s a list of the eight documents that did not make the cut. They are numbered according to their document number in the motion:

  1. Permitting Procedures for Determining ‘Reasonable Potential’, authored by the Kentucky Natural Resources and Environmental Protection Cabinet, Division of Water, dated May 1, 2000
  2. Letter from EPA employee Douglas F. Mundrick, to R. Bruce Scott, Kentucky Division of Water (“KDOW”) employee, dated July 7, 2000
  3. Letter from EPA employee James D. Giattina, to KDOW employee Sandy Gruzesky, dated Dec. 21, 2009, commenting on proposed National Pollutant Discharge Elimination System (“NPDES”) Draft Permit for Premier Elkhorn Coal Company
  4. E-mail from EPA employee Chris Thomas to KDOW employe Sandy Gruzesky, dated Dec. 21, 2009
  5. E-mail from EPA employe Sharmin Syed, to KDOW employee R. Bruce Scott, dated Nov. 5, 2010 and attached spreadsheet
  6. E-mail and attached spreadsheet from KDOW employee R. Bruce Scott, to EPA employees Stan Meiburg, Jim Giattina, Chris Thomas et al., dated Jan. 10, 2011
  7. E-mail and attached spreadsheet from KDOW employee R. Bruce Scott, to EPA employees Stan Meiburg, Jim Giattina, Chris Thomas et al., dated Jan. 12, 2011, and
  8. E-mail from EPA employee Chris Thomas, to KDOW employee Sandy Gruzesky, dated March 10, 2011

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Sonoran bald eagle not listed (again)

 Posted by on April 20, 2012  Court calls, Daily Links, ESA, FR, FWS, Listings
Apr 202012
 

The Fish and Wildlife Service has declined again to list the bald eagle in Arizona as threatened or endangered. The service’s news release is pasted below.

Contacts:  Steve Spangle, (602) 242-0210, Steve_Spangle@FWS.Gov,  Tom Buckley (505) 248-6455, Tom_Buckley@FWS.Gov, Jeff Humphrey (602) 242-0210, Jeff_Humphrey@FWS.Gov

Service Determines Bald Eagle in the Sonoran Desert Does Not Warrant Protection under List of Endangered and Threatened Species

The U.S. Fish and Wildlife Service today [Friday, April 20] announced the results of a revised 12-month finding on a petition to list the Sonoran Desert Area population of bald eagle (Haliaeetus leucocephalus) as threatened or endangered under the Endangered Species Act (ESA). After review of the scientific and commercial information used in its previous determination, the Service has found that the Sonoran Desert Area population of bald eagle does not qualify as a distinct population segment (DPS) and listing the Sonoran Desert Area population of bald eagle is not warranted at this time.

Pursuant to a November 30, 2011, court order, the Service drafted a new 12-month finding on the petition to list the Sonoran Desert Area population of bald eagle as a DPS. The court ordered the Service to base this new 12-month finding on the information that was used to reach the February 25, 2010, 12-month finding that this population was not a listable entity under the ESA.

To determine if a DPS designation is appropriate, the Service has a three-step evaluation process. First, the Service determines whether a vertebrate population is discrete and, if the population is discrete, then determines whether the population is significant. If the population is determined to be both discrete and significant, then the DPS policy requires the Service to determine if the species would meet the requirements for endangered or threatened under the ESA.

The Service determined that the Sonoran Desert Area population of bald eagle does meet the discreteness criteria under DPS policy. However, the Service determined that this population does not meet the significance requirement. After reviewing the 2010 information, as required by the court, the Service found no direct or indirect evidence that would indicate persistence in the Sonoran Desert Area is biologically or ecologically important to the taxon as a whole. The Service also found that: (1) loss of the population would not result in a significant gap in the range; (2) the population does not represent the only surviving natural occurrence of the bald eagle; (3) and the population’s genetic characteristics do not differ markedly from those of other bald eagle populations.

The Service then went one step further to provide additional information about the Sonoran Desert Area population of bald eagle and conducted a threats assessment detailing the nature, scope, and likely effect of the threats to the population and the species to determine if the species would meet the listing requirements for endangered or threatened under the ESA, were it a listable entity. Based on the best available information, none of these poses a significant threat at a population level. If the Sonoran Desert Area population of the bald eagle were a listable entity, listing would not be warranted.

The Sonoran Desert Area population includes all bald eagle territories within Arizona, the Copper Basin breeding area in California near the Colorado River, and the territories of interior Sonora, Mexico, that occur within the Sonoran Desert and adjacent transitional communities.

The Sonoran Desert population of bald eagles continues to be protected under the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act. This finding will not affect the status of the Sonoran Desert population of the bald eagle under State laws or suspend any other legal protections provided by State law.

This finding will be available on the Internet at http://www.regulations.gov at Docket Number FWS–R2–ES–2008–0059, and http://www.fws.gov/southwest. Supporting documentation used in preparing this finding is available for public inspection, by appointment, during normal business hours at the U.S. Fish and Wildlife Service, Southwest Regional Office, 500 Gold Ave SW, Room 6034, Albuquerque, NM 87102. Please submit any new information, materials, comments, or questions concerning this finding to the above address.

The Endangered Species Act provides a critical safety net for America’s native fish, wildlife and plants. This landmark conservation law has prevented the extinction of hundreds of imperiled species across the nation and promoted the recovery of many others.

The mission of the U.S. Fish and Wildlife Service is working with others to conserve, protect, and enhance fish, wildlife, plants, and their habitats for the continuing benefit of the American people. We are both a leader and trusted partner in fish and wildlife conservation, known for our scientific excellence, stewardship of lands and natural resources, dedicated professionals, and commitment to public service. For more information on our work and the people who make it happen, visit www.fws.gov. Connect with our Facebook page at www.facebook.com/usfws, follow our tweets at www.twitter.com/usfwshq, watch our YouTube Channel at http://www.youtube.com/usfws and download photos from our Flickr page at http://www.flickr.com/photos/usfwshq.

More news from the Southwest…

Preliminary strategy for jaguar recovery is complete (press release, 4/19/2012)

Judge Walton will consider four “extra-record” documents
in coal industry suit over EPA 404 permit guidance

 Posted by on April 20, 2012  Clean Water Act, Court calls, Daily Links, EPA, Wetlands
Apr 202012
 

Friday, April 20, 2012 – A federal judge ruled today that when he decides a mining industry challenge to EPA-issued guidance on 404 permits, he would take into consideration four documents not presently in the record (Nat’l Mining Ass’n v. Jackson, 10-1220 RBW, D.D.C.).

But at the same time, U.S. District Judge Reggie B. Walton rejected the plaintiffs’ motion to add eight other documents to the record:

[T]he crux of the plaintiffs’ argument seems to be that because the documents predate the issuance of the Final Guidance and were either authored by EPA employees or sent to EPA employees by the [Kentucky Division of Water], they should be added to the administrative record. See id. at 9-10. It is not enough for the plaintiffs to assert that “the EPA knew about these” documents, Pls.’ Reply at 4; rather, the plaintiffs “must offer non-speculative grounds for their belief that the [agency] actually considered [the documents in question].” Marcum, 751 F. Supp. 2d at 81 (emphasis added). And the plaintiffs have not done so here.

“The court will consider the final four documents at issue as extra-record evidence because they shed light on an issue not addressed by the administrative record itself,” Walton said. “While the administrative record is not so bare as to frustrate judicial review as to all of the plaintiffs’ claims, it is entirely bare as to how the EPA has applied the Final Guidance.”

Walton, who has already ruled previously in the case, said he would “consider these documents in connection with the plaintiffs’ claim that the EPA has applied the Final Guidance as a binding rule.”

Those four documents are:

  • Letter from EPA employee James D. Giattina, to KDOW employee Sandy Gruzesky, dated Sept. 28, 2011 (Document 9)
  • Letter from EPA employee James D. Giattina, to KDOW employee Sandy Gruzesky, dated Sept. 28, 2011 (Doc. 10)
  • Affidavit of KDOW employee R. Bruce Scott (Doc. 11)
  • Letter from NPDES Branch, EPA Region III employee Evelyn S. MacKnight, to Division of Mining & Reclamation, West Virginia Department of Environtmental Protection (“WVDEP”) employee Jeffrey Parsons, dated Nov. 20, 2011 (Doc. 12)

Walton added that “[h]aving concluded that the four documents postdating the issuance of the Final Guidance are appropriate for consideration as extra-record evidence,” he did nlot need to address the parties’ arguments over whether he should actually “take judicial notice of these documents.”

Here’s a list of the eight documents that did not make the cut. They are numbered according to their document number in the motion:

  1. Permitting Procedures for Determining ‘Reasonable Potential’, authored by the Kentucky Natural Resources and Environmental Protection Cabinet, Division of Water, dated May 1, 2000
  2. Letter from EPA employee Douglas F. Mundrick, to R. Bruce Scott, Kentucky Division of Water (“KDOW”) employee, dated July 7, 2000
  3. Letter from EPA employee James D. Giattina, to KDOW employee Sandy Gruzesky, dated Dec. 21, 2009, commenting on proposed National Pollutant Discharge Elimination System (“NPDES”) Draft Permit for Premier Elkhorn Coal Company
  4. E-mail from EPA employee Chris Thomas to KDOW employe Sandy Gruzesky, dated Dec. 21, 2009
  5. E-mail from EPA employe Sharmin Syed, to KDOW employee R. Bruce Scott, dated Nov. 5, 2010 and attached spreadsheet
  6. E-mail and attached spreadsheet from KDOW employee R. Bruce Scott, to EPA employees Stan Meiburg, Jim Giattina, Chris Thomas et al., dated Jan. 10, 2011
  7. E-mail and attached spreadsheet from KDOW employee R. Bruce Scott, to EPA employees Stan Meiburg, Jim Giattina, Chris Thomas et al., dated Jan. 12, 2011, and
  8. E-mail from EPA employee Chris Thomas, to KDOW employee Sandy Gruzesky, dated March 10, 2011

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