Sep 302014


The case was on remand from D.C. Circuit Court of Appeals.


"The Court agrees that EPA must show a causal link between the discharges it seeks to  prohibit and the unacceptable adverse effects that justify its decision to prohibit them. So the cause of the unacceptable adverse effects must be related to the only thing EPA can regulate under section 404: the discharge of dredged or fill material. This is not to say, however, that EPA must demonstrate with laser precision that the complained about effects stem only from the section 404 discharges. It is enough for EPA to establish some causal link between the discharge of fill material upstream and the projected unacceptable adverse effects, and EPA has done that here."

"As explained above, the Court finds that EPA may consider downstream effects under  section 404(c), that it may use stricter standards than those set as the state’s water quality standards, and that, in this case, EPA successfully demonstrated that the unacceptable adverse effects identified in section V.D. would be caused by the proposed section 404 discharges into Pigeonroost Branch and Oldhouse Branch."

"[T]he Court finds that EPA’s decision to revoke the specification of Pigeonroost Branch and Oldhouse Branch as disposal sites for the discharge of dredged or fill material generated in connection with the Spruce No. 1 Mine, as explained in the Final Determination, was reasonable, supported by the record, and based on considerations within EPA’s purview, it will grant EPA’s motion for summary judgment and deny Mingo Logan’s motion for summary judgment. A separate order will issue."

Here's Earthjustice's news release:

Federal Court Upholds EPA Veto of Spruce Mountaintop Removal Mine

Finds coal industry’s case against EPA action baseless

Washington, D.C. — Today Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia upheld the Environmental Protection Agency’s veto of a permit for one of the largest and most extreme mountaintop removal coal mines ever proposed in Appalachia, the Spruce No. 1 Mine. The court found no merit in the coal industry’s case, and found that EPA’s decision to veto the Clean Water Act permit for this mine was reasonable and fully supported by the scientific record.

Background information and relevant documents are provided at the end of this release.

Statement from Emma Cheuse, Earthjustice counsel who argued on behalf of several Appalachian groups in defense of the EPA’s veto:

“Today’s court victory is a win for all Americans who believe our children deserve clean water and healthy lives without facing the increased threats of cancer, birth defects and early mortality associated with mountaintop removal coal mining.

“Now that a court has affirmed EPA’s decision to prevent the unacceptable devastation this practice causes in this important instance, we need EPA to do its job across the board to protect Appalachian communities before the coal industry destroys more waterways, communities and unique natural areas for good.”

Statement from Ben Luckett, Appalachian Mountain Advocates, who also represented the coalition of Appalachian community groups as amici curiae in support of EPA:

“The court rightly recognized the robust scientific foundation for EPA’s decision to prevent the extreme environmental harm associated with the Spruce mine’s proposed valley fills. We expect that EPA going forward will faithfully apply that science and take proactive steps to avert the damage caused by large scale surface coal mining that it so clearly identified in its veto determination.”

Statement from Jim Hecker, Environmental Enforcement Director at Public Justice and co-counsel in the 1998 case that initially blocked the Spruce mine:

"The coal industry has falsely painted the Spruce Mine veto as an example of EPA overreach and a 'war on coal,' and this decision shows that EPA's decision is based on clear scientific evidence of serious environmental harm from mining."

Statement from Debbie Jarrell, Coal River Mountain Watch co-director:

"It's about time that the EPA is able to do their jobs, but protecting two streams out of the hundreds of active and pending permits is a far cry from ending mountaintop removal. The EPA needs to go much further to protect our communities' health and water, and not get sued for doing their jobs."

Statement from Bill Price of the Sierra Club:

"This is great news for people living in mountain communities. Once again the courts have upheld the right of the EPA to act. Hopefully the Administration will now move forward and take actions that Appalachian activists have asked for."




Liz Judge, Earthjustice, (415)

Ben Luckett, Appalachian Mountain Advocates, (304)

Jim Hecker, Public Justice, (202)

Cindy Rank, West Virginia Highlands Conservancy, (304)

Vivian Stockman, Ohio Valley Environmental Coalition,

Adam Beitman, Sierra Club, (202)

Vernon Haltom, Coal River Mountain Watch, (304)

Jon Devine, Natural Resources Defense Council, (202)


Spruce No. 1 Mine.  In October 1999, the Spruce No. 1 Mine became the subject of the first significant federal court decision on mountaintop removal mining, won by individual community members and the West Virginia Highlands Conservancy (represented by Appalachian Mountain Advocates and Public Justice).  That case -- in which the late Judge Charles Haden found that the Army Corps of Engineers’ permit for the mine was unlawful -- initiated years of controversy and litigation over this proposed mine.  In the meantime, the science accumulated showing how devastating this type of mining is for local waters and communities.

In January 2011, the EPA decided to veto the Spruce No. 1 Mine permit based on robust science showing the irreparable harm that would occur if the mining company were allowed to permanently bury and pollute natural headwater streams with mining waste.   The permit would have allowed the Mingo Logan coal company to bury and destroy over six miles of pristine mountain streams under mining waste dumps (called “valley fills”) created from the destruction of over 2,000 acres of land, releasing harmful pollutants into downstream waters that sustain local communities and wildlife. Appalachian citizen groups have been fighting to save the streams that would be destroyed by the Spruce Mine for more than a decade – as one of the largest, most harmful mountaintop removal mines ever proposed.

In this instance, EPA decided to veto the Spruce No. 1 mine permit after substantial new science had come to light, after consultation with the Corps, and after public notice and a hearing.  EPA considered more than 50,000 written comments before issuing the veto.  The vast majority (70%) supported EPA’s veto.  EPA based its decision in part on 100 scientific studies and data sources released after the permit was initially issued, including studies showing dramatic, irreversible harm to waters and revealing that industry-designed mitigation measures have repeatedly failed to protect waters.  EPA applied its veto only to those parts of the permit that had been on hold for decades due to the longstanding court case in West Virginia.

Lower court decisions.  In 2012, the D.C. district court ruled that EPA lacked authority to veto the permit after the Corps had issued it, without addressing the scientific merits of EPA’s decision.  In 2013, the D.C. Circuit (in an opinion by Judges Henderson, Griffith, and Kavanaugh) unanimously reversed the district court’s ruling and upheld EPA’s authority to veto whenever there is unacceptable harm, including after a permit has been issued.  The full D.C. Circuit then denied the coal company’s petition for en banc review.  The Supreme Court also denied certiorari, reaffirming what the D.C. Circuit decided -- that EPA has authority to veto a harmful permit after it is issued.

Today’s action.  The case went back to the District Court for review of the scientific merits of EPA’s veto decision in this specific instance. The court today upheld EPA’s veto, ruling that it was reasonable, supported by evidence, and well within EPA’s scope of responsibility to protect waters, and upheld the EPA action.

History of EPA veto authority.  Out of the thousands of permits the Army Corps has issued to allow filling of U.S. waters during the last 41 years, including hundreds of permits for large-scale coal strip mines, this is only the 13th time EPA has ever exercised its authority under the Clean Water Act (33 U.S.C. § 1344(c)) to prohibit, deny, or restrict (including to veto or withdraw) authorization to discharge dredged or fill material into U.S. waters. It is also the first such determination ever to protect U.S. waters from mining waste. EPA has exercised its veto authority with care, acting only in circumstances where the harm is truly extreme and unacceptable and where EPA action was necessary to prevent such harm.

The law.  In 1979, EPA issued the regulations that govern the use of its veto authority and recognized that its Clean Water Act authority allows EPA to act whenever necessary to prevent unacceptable harm.  The U.S. Army Corps of Engineers agrees that EPA had the full authority to veto the Spruce permit.

Specifically: the Clean Water Act plainly authorizes EPA to “prohibit,” “deny[,] or restrict” “the specification (including withdrawal of specification)” for use of any U.S. waters as disposal sites for fill or dredged material, and to do so “whenever” the agency determines that this “will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.” 33 U.S.C. § 1344(c).  Although industry has argued that “whenever” does not allow EPA to act after the U.S. Army Corps of Engineers has issued a permit which contains such specifications, the law sets no such restriction on EPA’s authority.  Instead, the law makes the Corps’ permitting authority “subject to [EPA’s authority under 404(c)]” at all times.  33 U.S.C. § 1344(b).


  1. Read Judge Amy Berman-Jackson’s Opinion upholding EPA’s veto of the Spruce No. 1 Permit:
  2. Read the D.C. Circuit opinion, issued by Judges Henderson, Griffith, and Kavanaugh:
  3. More information about EPA’s Veto Determination for the Spruce No.1 Mine:
  4. List of 13 EPA Determinations Under 404(c) of the Clean Water Act since 1979:
  5. Amicus Brief filed by Local Community Groups in the D.C. Circuit in support of EPA:
  6. Read the Amicus Brief filed by Local Community Groups in the U.S. District Court for D.C. in support of EPA’s decision to veto the Spruce No. 1 Permit:



Sep 302014

U.S. District Judge Rudolph Contreras has rejected claims by Defenders of Wildlife and Center for Biological Diversity that FWS improperly withdrew its proposed listing of the dunes sagebrush lizard (Defenders of Wildlife v. Jewell, 13-0919 RC, D.D.C.).

"The FWS’s withdrawal decision was neither arbitrary and capricious under the ESA and APA, nor contrary to ESA requirements governing listing decisions," the judge said in his ruling, issued today (Sept. 30). "The FWS examined the conservation measures in place and determined that they would be effective and would continue to eliminate threats to the lizard. Of course, if the measures prove ineffective, the FWS is free to revisit its decision and list the lizard as endangered."


Sep 302014

U.S. District Judge Amy Berman Jackson has denied motions by Wyoming and the federal government to alter her ruling that reinstated endangered species protections for the gray wolf in that state.

A hearing was held today in Jackson's courtroom. Although ESWR was unable to attend, a docket entry in the case states simply that the judge had denied the motions "for the reasons stated on the record in open court."

After Jackson issued her order a week ago (Sept. 23), Wyoming adopted emergency rules that the state said would protect wolves enough to allow them to remain under state management (see link above).

Here is the full docket entry:

Motion Hearing held on9/30/2014. For the reasons stated on the record in open Court, The State of Wyoming's [69] Motion to Alter or Amend Judgment is Denied. The State of Wyoming's [70] Motion to Stay and Request to Expedite Consideration is Denied as Moot. The Federal Defendants' [72] Motion to Alter or Amend Judgment is Denied, and the Federal Defendants' alternative request to Stay is Denied. The [74] Motion to Alter or Amend Judgment filed by Safari Club International, National Rifle Association, and Rocky Mountain Elk Foundation, Inc. is Denied. (Court Reporter Scott Wallace) (jth)



No listing for Rio Grande cutthroat trout

 Posted by on September 30, 2014
Sep 302014

FWS has decided against listing the Rio Grande cutthroat trout, despite a "reduction in resiliency" that makes it less likely the subspecies as a whole can continue to persist.

In a brief press release, FWS said it had "found that the Rio Grande cutthroat trout is not in danger of extinction throughout its range or in a significant portion of its range now, nor is it likely to become so in the foreseeable future.  However, [we are] asking the public to submit any new information that becomes available concerning the status of the Rio Grande cutthroat trout at any time."

FWS FAQ on trout | CBD press release

The Federal Register notice will be published tomorrow, at which time a Species Status Assessment will be made available. GPO Docket

Evaluation and Finding (from FR)

"Our review found that there are currently 122 existing populations of the Rio Grande cutthroat trout in four GMUs. We consider each of these populations genetically  pure enough to be Rio Grande cutthroat trout; that is, each population has 90 percent or more of the native Rio Grande cutthroat trout genes. To assess the current status of these populations, we sorted each of them into four categories to consider their current status, which was based on effective population size, occupied stream length, presence of competing nonnative trout, and presence of hybridizing nonnative trout. We categorized 55 of the populations (45 percent) as currently in the best or good condition of having no nonative trout, relatively large effective population sizes, and relatively long occupied stream lengths (Service 2014a, pp. 14–15). This current number of populations in the best or good condition existing across the subspecies’ range provides resiliency (45 percent of populations considered sufficiently large to withstand stochastic events), redundancy (55 populations spread across all four extant GMUs to withstand catastrophic events), and representation (multiple populations are persisting across the range of the subspecies to maintain ecological and genetic diversity).

"The Rio Grande cutthroat trout also historically occurred in a fifth GMU—the Caballo GMU. We only know of one historical population in this GMU, which was extirpated more than 30 years ago. With only one population, this area would not have significantly contributed to the resiliency and redundancy of the subspecies. However, it could have had some important genetic or ecological diversity that would have contributed to the adaptive capacity of the subspecies. Losing this population likely lowered the overall viability of the subspecies but would not be a substantial enough impact rangewide to meaningfully increase the overall risk of extinction of the Rio Grande cutthroat trout.

"To further consider the status of the Rio Grande cutthroat trout, we analyzed the condition of the subspecies over the next 10 years to evaluate its viability. In 2023, we projected an estimated range of between 104 and 131 populations will persist under worst case and best case scenarios, respectively. According to our forecasts, these populations would be distributed throughout the subspecies’ range, with multiple populations persisting in all four of the currently extant GMUs (see Service 2014a, pp. 44–45 for complete results). Therefore, because this worst case estimate of the number and distribution of populations provides resiliency, representation, and redundancy for the subspecies, we conclude the subspecies does not meet the definition of an endangered species under the Act. Although the subspecies has experienced substantial reduction from its historical distribution, the number of Rio Grande cutthroat trout populations currently persisting and expected to persist in the next 10 years across its range does not put the subspecies in danger of extinction."

More from the FR notice

"Currently the subspecies is distributed in 122 populations across the four [geographic management units] (ranging from 10 to 59 populations per GMU), and most of the populations are isolated from other populations. The total amount of currently occupied stream habitat is estimated to be about 11 percent of the historically occupied range. This large decline in distribution and abundance is primarily due to the impacts of the introduction of nonnative trout."

The GMUs are managed by the states of Colorado and New Mexico and other agencies "as separate units to maintain genetic and ecological diversity within the subspecies where it exists and to ensure representation of the subspecies across its historical range. GMUs were not created to necessarily reflect important differences in genetic variability, although fish in the Pecos and Canadian GMUs do exhibit some genetic differentiation from those in the Rio Grande basin GMUs. From a rangewide perspective, multiple Rio Grande cutthroat trout populations should be dispersed throughout the various GMUs to maintain subspecies viability and to reduce the likelihood of extinction."

"Rangewide, the resiliency of the subspecies has declined substantially due to the large decrease in overall distribution in the last 50 years. In addition, the remnant Rio Grande cutthroat trout populations are now mostly isolated to headwater streams due to the fragmentation that has resulted from the historical, widespread introduction of nonnative trout across the range of Rio Grande cutthroat trout. Therefore, if an extant population is extirpated due to a localized event, such as a wildfire and subsequent debris flow, there is little to no opportunity for natural recolonization of that population."


Sep 302014

The Bureau of Land Management must look closely at the impact of grazing on greater sage-grouse, U.S. District Judge B. Lynn Winmill ruled Monday, Sept. 29 (Western Watersheds Project v. Jewell, 08-435-BLW, D. Id.).

Western Watersheds Project called the decision a "big win" and said it's significant for a few reasons.

"Judge Winmill found that the BLM violated the National Environmental Policy Act (NEPA) by failing to properly disclose the cumulative impacts of its decisions and by failing to consider ending grazing on the allotments in any of the alternatives to proposed management," WWP said in its press release.

"Moreover, Judge Winmill ruled that the BLM must include mandatory terms and conditions to protect sage-grouse, including specific restrictions to address such things as stubble height, stream bank alteration, and utilization. Voluntary measures will not serve."

The judge also said BLM cannot avoid evaluating grazing permits under the Federal Land Policy and Management Act, notwithstanding the passage of a congressional rider that exempts permit renewals from NEPA review.

"While § 325 [the congressional rider] tolls the BLM’s obligation to proceed with environmental obligations imposed by laws like NEPA, it carves out an exception for FLPMA and requires a continuing obligation to follow that statute," Winmill wrote.

"BLM is still obliged to consider ongoing environmental degradation and comply with the Fundamentals of Rangeland Health," said WWP. "This is an important precedent because the BLM has a bad habit of allowing harmful status quo grazing to continue while it defers NEPA analysis."

Winmill did not halt grazing while BLM "makes the changes dictated by this decision."


Cumulative impacts  Page 14

"The cumulative impacts analysis in the EA at issue in round two suffers from the same flaws. Once again the sage grouse habitat is degraded – three of the four allotments violated the FRH Standard 8, the Sensitive Species Standard. The cumulative impacts section contains no real discussion of the conditions of sage-grouse in these surrounding allotments.

"This failure is all the more acute because, as will be discussed further below, the BLM is avoiding environmental reviews for many permit renewals. For permits renewed under the 2003 grazing rider, the BLM has taken the position that it need not do any NEPA or FLPMA review. The BLM has now renewed over 150 permits under the rider without any environmental review. The effect of unexamined permit renewals in the area would be critical to determining cumulative impacts.

"The Court recognizes that it must scour the entire EA to determine if the cumulative impact analysis could be enhanced by reading the EA in its entirety and not just focusing on the section labeled “Cumulative Impacts.” See Ctr. for Envtl. Law & Policy v. U.S. BOR, 655 F.3d 1000 (9th Cir. 2011). But the necessary cumulative impacts discussion cannot be found anywhere in the EA.

"For all of these reasons the Court finds that the EA evaluating the four allotments at issue here violated NEPA by failing to contain an adequate cumulative impacts analysis.

NEPA – Failure to Consider Alternatives Including No-Action Alternative Page 15

"This Court held in its decision on the first round of motions that the failure to consider alternatives to the existing grazing levels, and the failure to evaluate a no-grazing alternative, violates NEPA. WWP v. Salazar, supra.

"In this case, the EA failed to identify reasonable alternatives. The existing grazing levels were contributing to sage grouse habitat degradation and yet the EA evaluated no alternative that would have reduced grazing levels and/or increased restrictions on grazing. The Ninth Circuit has recently struck down a NEPA analysis where each alternative permitted grazing at the same level. WWP v. Abbey, 719 F.3d 1035 (9th Cir. 2013). For the same reason, the EA in this case violated NEPA."

Grazing rider - page 18

The parties identify 9 permits that were renewed under the terms of the 2003 grazing rider contained in § 325 of Public Law 108-108. All of these permits govern grazing on allotments outside the Jim Sage allotments. The BLM’s Burley Field Office has used the grazing rider to renew grazing permits without doing any NEPA or FLPMA review in 168 of 200 allotments since 2005.

More quotes from decision

Winmill noted that BLM's 2001 Special Status Species Policy requires that “sensitive” species "be afforded, at a minimum, the same protections as candidate species for listing under the ESA, and makes BLM Field Office managers responsible for implementing the policy." (page 7)

Greater sage grouse populations have been declining for at least 25 years. The 2004 Conservation Assessment, prepared by the leading scientific experts, concluded that every major metric in sage grouse population abundance has declined over the last 50 years. The declining populations are occurring as sage brush habitat disappears. The leading experts concluded in the Idaho Conservation Plan that “[t]he loss and fragmentation of sage-grouse habitat in some parts of Idaho are of major concern.” See Conservation Plan at p. 3-3. The top four causes of this habitat loss and fragmentation in Idaho are (1) wildfire, (2) infrastructure, (3) annual grasses, and (4) livestock impacts. Id. at p. 4-3." (page 6)