Jul 292015
 

An en banc panel of the Ninth Circuit affirmed an earlier decision, finding that the Forest Service did not properly explain why it was exempting the Tongass National Forest from the roadless rule (Organized Village of Kake v. U.S. Dep't of Agriculture, 11-35517).

A number of prominent environmental groups had challenged the decision. On the other side were USDA, the state of Alaska and the Alaska Forest Association. The Forest Service, however, did not appeal the district court's decision; the state.

"The en banc court ... held that the Tongass Exemption was invalid because the Department [of Agriculture] failed to provide a reasoned explanation for contradicting the findings in the 2001 Record of Decision. As a remedy, the en banc court upheld the district court’s reinstatement of the Roadless Rule which remained in effect and applied to the Tongass Forest."

The latest decision garnered some dissent, as five judges said the court shouldn't bother itself with policy decisions made at the beginning of new presidential administrations. In the present case, President George W. Bush's administration promulgated the Tongass exemption after the Clinton Administration had, close to the end of its tenure, issued the controversial Roadless Rule.

In dissent, Circuit Judges Milan D.Smith Jr., Alex Kozinski, Richard C. Tallman, Richard R. Clifton and Consuelo M. Callahan said:

"Inevitably, when the political pendulum swings and a different party takes control of the executive branch, the cycle begins anew. There is nothing improper about the political branches of the government carrying out such changes in policy. To the contrary, such policy changes are often how successful presidential candidates implement the very campaign promises that helped secure their election. That is simply the way the modern political process works."

The majority, however, said that under FCC v. Fox Television Stations, the Forest Service was not free to ignore its pre-Bush finding that "[a]llowing road construction and reconstruction on the Tongass National Forest to continue unabated would risk the loss of important roadless area values.”

The dissent suggests that the 2003 decision was likely the result of a change in administrations, and argues that the agency, “following the policy instructions of the new president,” was free to weigh the same evidence and “simply conclude[] that the facts mandated different regulations than the previous administration.” Supreme Court authority directs otherwise. Under FCC v. Fox Television Stations Inc.when a new policy is contradicted by an agency’s previous factual findings, the law does not allow the agency to simply ignore the earlier findings. 556 U.S. 502, 516
(2009). Instead, the law requires that the agency provide reasoned explanation for changing course and adopting a position contradicted by its previous findings. Id.

The decision follows:

 

Jul 212015
 

The D.C. Circuit concluded that Gunpowder Riverkeeper's challenge to a conditional certificate issued by the Federal Energy Regulatory Commission did not fall within the "zone of interests" protected by the National Environmental Policy Act and Clean Water Act (Gunpowder Riverkeeper v. FERC, 14-1062).

"We conclude Gunpowder’s interest in protecting its members’ property from eminent domain in the face of alleged noncompliance with the NEPA and the CWA does not fall within the zones of interest protected by" NEPA, the CWA or the Natural Gas Act (NGA), the court found.

The environmental group recently celebrated a victory in state court in a legal action separate from the federal lawsuit.

Senior Circuit Judge Douglas Ginsburg wrote the opinion, in which he was joined by Circuit Judge Janice Rogers Brown. Circuit Judge Judith Rogers joined in the judgment but dissented on the reasoning.

From the opinion:

"Under Section 7 of the NGA, however, issuance of the conditional certificate enabled Columbia [Gas Transmission] immediately to exercise the power of eminent domain to obtain 'the necessary right-of-way to construct, operate, and maintain a pipe line' and to place any 'equipment necessary to the proper operation of such pipe line.' ”

The opinion follows.

 

Obama designates national monuments

 Posted by on July 14, 2015
Jul 142015
 

The monuments are Berryessa Snow Mountain in California, Waco Mammoth in Texas, and Basin and Range in Nevada.

Announcement from White House blog

And from the Federal Register (to be published July 15):

Basin and Range National Monument; Establishment (Proc. 9297) ::: PDF - 627.2 KB; 12 pages Permalink

Berryessa Snow Mountain National Monument; Establishment (Proc. 9298) ::: PDF - 1.4 MB; 12 pages Permalink

Waco Mammoth National Monument; Establishment (Proc. 9299) ::: PDF - 455.8 KB; 7 pages Permalink

 

Jul 132015
 

Teen angelshark, can you hear me?

If you can, then you may have learned (even down in the depths) that you've been proposed as endangered. Not every one of you, mind you, but the National Marine Fisheries Service has proposed to list as endangered three species of angelsharks.

Squatina squatina (Credit: Donald Flescher, NEFSC/NOAA)

Squatina squatina (Credit: Donald Flescher, NEFSC/NOAA)

"The three species proposed for listing are found in coastal and outer continental shelf sediment habitats in the Mediterranean Sea and eastern Atlantic," NMFS said in its proposed rule and 12-month petition finding, which is due to be published in the Federal Register July 14. "These species are bottom dwellers and prefer to spend most of their time buried in the sand or mud (Compagno 1984). To feed, they generally lie in wait for prey to approach before attacking (ambush predators), and, based on their diet, they are considered to be high trophic level predators" -- in other words, high in the food chain.

NMFS previously issued positive 90-day findings for five other shark species included in an 81-species petition filed by WildEarth Guardians. Two of those shark species are angelsharks: the Argentine angelshark and the Angular angelshark.

From our daily Federal Register update page:

NMFS proposes listing three foreign marine angelshark species as endangered: the sawback angelshark (Squatina aculeata), smoothback angelshark (Squatina oculata), and common angelshark (Squatina squatina).

Here's the FR notice:

Jul 082015
 

The House of Representatives has passed (or rejected) amendments to a funding bill for fiscal 2016 that target Endangereed Species Act protections for the lesser prairie-chicken, greater sage-grouse, northern long-eared bat, Sonoran desert tortoise, six species of mussels, the Preble's meadow jumping mouse, and any listed species that have not had five-year status reviews completed for them.

Use of the word "target" is deliberate, as some of the amendments are designed to prevent the implementation of ESA protections, while others sought to strip ESA-related provisions from the bill, H.R. 2882.

The spending bill, which funds the Interior Department and Environmental Protection Agency, already contains a provision defunding the EPA/Army Corps of Engineers' "waters of the U.S." rule. The House has yet to finish considering it. Debate began yesterday and continued today, interrupted by debate on an education bill.

Links

Debate on bill (from Defenders of Wildlife)

Friends of the Earth news release

What follows are excerpts from the House floor debate held yesterday.

LIMITATION ON USE OF FUNDS TO TREAT THE SONORAN DESERT TORTOISE AS AN ENDANGERED SPECIES OR THREATENED SPECIES

Sec. __. None of the funds made available by this Act may be used by the United States Fish and Wildlife Service to treat the Sonoran desert tortoise as an endangered species or threatened species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

The Acting CHAIR. Pursuant to House Resolution 333, the gentleman from Arizona and a Member opposed each will control 5 minutes.

The Chair recognizes the gentleman from Arizona.

Mr. GOSAR. Mr. Chairman, I rise to offer a commonsense amendment to the Interior, Environment, and Related Agencies Appropriations Act.

My amendment will protect education, grazing, agriculture, energy, housing interests, as well as assist with preventing dangerous wildfires by blocking the Fish and Wildlife Service from listing the Sonoran desert tortoise as an endangered or threatened species. A listing decision for the Sonoran desert tortoise is expected this fiscal year.

Of the potential 26.8 million acres that will likely be designated for critical habitat due to such a listing, 15 million acres are located in the United States, and nearly 4.5 million acres are State trust land.

State trust land revenues, which are currently enjoyed by 13 beneficiaries, of which K-12 education is the largest proportional share of those moneys, will be severely impacted.

If the Sonoran desert tortoise is listed, these acres of trust land will become less valuable for investment as they are burdened with a federal regulatory nexus. Without this amendment, schools that have already undergone significant budget cuts will see even less money flowing into their educational coffers.

The Sonoran desert tortoise is also of substantial concern to many different types of industry, as its habitat falls within urban development corridors as well as on rural and agricultural landscapes.

Listing the species as threatened or endangered will negatively impact commercial, housing and energy developers as well as the agriculture and grazing industries.

Specifically, a listing would be detrimental for 273 different grazing allotments and would jeopardize nearly 6 million acres used for livestock grazing.

Mining will also suffer, as the BLM listed 9,675 new mining claims from 1990 to 2002, 36 percent of which fall within the Sonoran desert tortoise's habitat.

Any ground and vegetation-disturbing activities, including fire suppression activities and restorative treatments, would also be negatively impacted by a listing decision for the species.

Solar energy would also likely be harmed, as large solar projects on desert floors are considered a potential threat to the Sonoran desert tortoise.

My amendment will also encourage significant voluntary efforts and financial contributions for the Sonoran desert tortoise to continue, many of which are already underway at the local level.

Important local conservation efforts began for the species in 2010, and a Candidate Conservation Agreement was recently signed by 15 different agencies in February.

Should the Sonoran desert tortoise become listed, these voluntary efforts and moneys will dissipate as local property owners, ranchers, and developers will no longer have any incentive to work with the Federal and State wildlife management agencies on conservation efforts for the species.

My amendment is supported by the Public Lands Council, the National Cattlemen's Beef Association, Americans for Limited Government, the Arizona Cattlemen's Association, the Arizona Farm Bureau, the Arizona Mining Association, the Home Builders Association of Central Arizona, and numerous other organizations that are strongly opposed to this listing.

I thank the chair and the ranking member for their tireless efforts to produce this bill.

Mr. Chairman, I reserve the balance of my time.

Ms. McCOLLUM. Mr. Chairman, I claim the time in opposition to this amendment.

The Acting CHAIR. The gentlewoman from Minnesota is recognized for 5 minutes.

Ms. McCOLLUM. Mr. Chairman, this amendment would do two things. First, it would prohibit the Fish and Wildlife Service from treating the Sonoran desert tortoise as threatened or endangered under the Endangered Species Act. Secondly, it would restrict the Service from offering any of the critical protections to preserve the species.

The Sonoran desert tortoise is an iconic species. It has been part of the Sonoran Desert ecosystem for over 150,000 years. In 2010, the Fish and Wildlife Service found that the listing for the Sonoran desert tortoise was warranted, but it was precluded because it needed to address other higher priorities.

So last December the Service announced that it was working on a proposed listing determination that is expected to be published within the year.

This amendment, if it were to pass, would stop the Fish and Wildlife Service's efforts and block the Service from meeting a court-ordered deadline to make this listing determination. In other words, they would put the U.S. Fish and Wildlife Service at odds with what the court has requested them to do. This amendment has no place in the appropriations process, nor does it have any place in this legislative process.

Let's just think about the Endangered Species Act for a minute. It has been one of our most effective and important environmental laws, and it is supported by over 85 percent of Americans.

There has been no law that has been more important in preventing the extinction of wildlife, but some Members of this body seem determined to undermine the law by placing harmful policy riders on this bill.

From my count, as of right now, there are at least 10 species that are at risk of losing the Endangered Species Act protections in this bill.

What type of conservation legacy are we leaving for future generations? That is why I oppose the amendment, and I urge my colleagues to oppose it as well.

I yield back the balance of my time.

Mr. GOSAR. Mr. Chairman, the Sonoran desert tortoise is part of a growing problem involving large settlements with the environmental groups who sue the Fish and Wildlife Service's regulatory protections with regard to a large number of different wildlife and plant species.

These multi-district litigation settlements, commonly known as ``sue and settle tactics,'' force the Fish and Wildlife Service to make listing decisions on several hundred species, often with little or no scientific data supporting these listings and without public input to this process.

This possible listing is a result of a lawsuit filed by a few special interest groups aimed at stifling development and has nothing to do with the tortoise.

I yield back the balance of my time.

The Acting CHAIR. The question is on the amendment offered by the gentleman from Arizona (Mr. Gosar).

The amendment was agreed to.

Amendment to remove sage-grouse, northern long-eared bat and gray wolf provisions. [The bill would prohibit listing of the greater sage-grouse, prohibit treating the bat as endangered (it has been listed as threatened), and remove the gray wolf in Wyoming and the Great Lakes from the endangered species list.]

The Chair recognizes the gentlewoman from Massachusetts.

Ms. TSONGAS. Mr. Chairman, my amendment, which I offer with Mr. Beyer of Virginia, would strike three policy riders related to the Endangered Species Act from the underlying bill, those concerning the greater sage-grouse, the northern long-eared bat, and the gray wolf. I want to focus my remarks on the greater sage-grouse.

The language in this bill that seeks to block an Endangered Species Act listing of the bird is unnecessary and is completely inappropriate, putting both the species and the historic quintessentially American sagebrush steppe landscape at risk.

In 1901, Mark Twain described the sagebrush steppe as a ``forest in exquisite miniature.'' At one point, as many as 16 million greater sage-grouse called the sagebrush sea home. Settlers traveling west said that flocks of sage-grouse ``blackened the sky.'' Today the population has been reduced to as few as 200,000 birds.

Right now there are unprecedented and proactive partnerships throughout the West which are working to conserve sagebrush habitat, to encourage predictability for economic development, and to prevent the listing of the greater sage-grouse as endangered or threatened under the Endangered Species Act.

Federal agencies, States, sportsmen, ranchers, farmers, and conservationists have all come together in this effort. In fact, the 10 land management plans released by the Interior Department last month are based on plans developed by the States, not one size fits all, but individual plans to suit each State's individual needs. This is all the result of a concerted collaboration.

The Fish and Wildlife Service and the States themselves agree that, as long as these partnerships continue, it is likely that the greater sage-grouse will not be listed as endangered or threatened under the Endangered Species Act.

Rather than helping communities, the rider in this bill creates uncertainty and only undermines the immense coordinated progress already underway. I urge my colleagues to vote ``yes'' on the amendment.

I reserve the balance of my time.

Mr. SIMPSON. Mr. Chairman, I rise in opposition to the amendment.

The Acting CHAIR. The gentleman from Idaho is recognized for 5 minutes.

Mr. SIMPSON. Mr. Chairman, I will talk about the three different provisions to this amendment. Let me first talk about the sage-grouse.

The sage-grouse provision in this bill is meant to give the Fish and Wildlife Service time to make a determination of whether there ought to be a listing or not. The court has ordered them to make a determination by, I think, September 30. We are trying to give them the time necessary.

This is going to affect 11 Western States. It is not going to affect Massachusetts, by the way, but it is going to affect 11 Western States substantially.

They have recently put out their resource management plans to the States. There is a period in which the States have a chance to interact with the Federal agency and raise their complaints and so forth about what the problems are with their resource management plans.

We are trying to give the Fish and Wildlife Service and the States--the 11 Western States, by the way, not Massachusetts--the time to come up with a plan so that we don't list this bird.

The Fish and Wildlife Service and the States--everybody, essentially--agree we don't want sage-grouse listed. The States have made incredible progress and have made incredible sacrifices.

The State of Wyoming has taken, I want to say, millions of acres which have potential resources off the table in order to protect the sage-grouse. So we have taken extraordinary efforts to make sure that we don't list this bird.

As far as the wolves are concerned, the fact is that the Fish and Wildlife Service delisted the wolves. It was not us. We didn't want to go against science. We are not going against science. We aren't trying to make any species become extinct.

It was the Fish and Wildlife Service in their use of science that delisted the wolves. But guess what. Some people weren't happy with that; so, they took them to court. And now we are in a court case. The same thing happened in Idaho and in Montana.

This language doesn't take a species off the endangered species list. Some people think we are trying to delist species, and we are not. We are going back to the decision made by the Fish and Wildlife Service to delist the wolves in the Great Lakes and in the State of Wyoming.

I think, if you want to talk about the cost and if you want to complain about what is going on here, you really ought to complain to the plaintiffs who are causing all of this hassle with wolves when the States have done exactly what they were supposed to do.

The wolf populations in the Great Lakes particularly have exploded. In Idaho and Montana, they have exploded. In Wyoming, they have exploded. That is why the Fish and Wildlife Service delisted them.

This amendment is contrary to every bit of science that there is that deals with endangered species. So I would urge my colleagues to reject this amendment even though it doesn't affect Massachusetts.

I reserve the balance of my time.

Ms. TSONGAS. Mr. Chairman, I would like to first comment that Massachusetts, at one time, was home to the Heath Hen, which is the greater sage-grouse's cousin.

Because at that time we did not have an Endangered Species Act, that Heath Hen is now, unfortunately, extinct. So we have learned an important lesson about the great role the Endangered Species Act does play to protect some of our remarkable species.

I yield 2 minutes to the gentleman from Virginia (Mr. Beyer), my colleague.

Mr. BEYER. I thank the gentlewoman.

Mr. Chairman, despite what you may hear from some Members of Congress, gray wolves have not recovered. In a test by the Fish and Wildlife Service to remove them from the Endangered Species Act, protections for wolves have failed time and again.

Why? It is because scientific experts have shown and the courts have confirmed that the best available science does not justify the removal of all ESA protections for gray wolves at this time.

In fact, the only instance in which wolves have been delisted has been through the unprecedented and unfortunate congressional action in 2011 to remove protections from wolves in the Northern Rocky Mountains.

These wolves are now endlessly persecuted by hunters and ranchers despite the positive effects they have on the ecosystem and the minimal toll they take on livestock.

[Time: 17:30]

Wolf-related tourism around Yellowstone generates more than $35 million annually for local economies, and recovery in the Pacific Northwest is only beginning.

This amendment would prevent Congress from directing the Fish and Wildlife Service to reissue the delisting of wolves in the western Great Lakes and Wyoming. Now is not the time for Congress to declare open season on one of America's most iconic wild animals. Science, not politics, should guide these delisting decisions.

By the way, wolves are not in Massachusetts, they are not in Virginia, and they never will be as long as we do not continue our efforts to protect wolves and allow them to occupy the old territories they did a few hundred years ago.

This amendment would also allow the Fish and Wildlife Service to move forward with steps to protect the northern long-eared bat. Over the past decade, populations of the bat have declined 98 percent, mostly because of the deadly effects of white-nose syndrome. As a result, Fish and Wildlife Service recently listed the bat as a threatened species. While scientists and wildlife managers work to fight the spread of white-nose syndrome, it is important to ensure that the remaining bat populations are safe from other threats.

The interim rule currently in effect governing taking of the bat is incredibly flexible and was developed in close coordination with industry stakeholders, particularly the timber industry, to ensure that economic activity is not negatively impacted.

The final rule is expected to be similarly flexible. The language in this bill will only serve as a delay tactic, causing additional uncertainty for businesses and property owners, and this amendment would effectively strike these unnecessary sections from the bill.

Mr. SIMPSON. Mr. Chair, how much time do I have remaining?

The Acting CHAIR. The gentleman from Idaho has 2 minutes remaining.

Mr. SIMPSON. Mr. Chair, I thank the gentleman. I appreciate the gentleman's comments. I do have some gray wolves in Idaho, Montana, Wyoming, and other places that we will be happy to ship to you if you like. In fact, we didn't have any in Idaho until Fish and Wildlife Service decided that they were going to reintroduce them in Idaho.

When you say the minimal take that it has on cattle, wildlife, and other types of things, there were gray wolves in Idaho that one sheep rancher lost over 300 head of sheep in one night to some wolves. That ends his business, essentially. So it is not a minimal take. If you look at the calf-to-cow ratio of elk and deer in Idaho, the numbers have been down substantially, particularly with elk because, guess what, they like elk, even though we were told that they will go after deer and not elk. Wolves, I guess, like elk better than they do deer.

The gentleman says we need to depend on science, not Congress. Congress never delisted a species. We didn't delist the gray wolves in Idaho and Montana. It was the Fish and Wildlife Service using science. When you say the gray wolves have not recovered, where is your science? Where do you get that? Where does that statement come from? Fish and Wildlife Service that has done the investigations said yes, they have. So do we just not trust them?

It is you people proposing this amendment that are going against science. We are just trying to make sure that the science is protected, and politics doesn't enter. We appreciate the people of Virginia and the people of Massachusetts trying to make sure that the wolves are healthy in Idaho. I can guarantee you they are. They are not persecuted, as you said. Yes, they are hunted, but anybody who believed we were going to introduce wolves into Idaho or Montana where they hadn't been for a number of years and you weren't going to have to maintain population controls of them was living in a fantasyland.

Yes, we do have hunting seasons for wolves, as we do almost all species, but we have to maintain a certain population, and if that population isn't maintained, guess what. Fish and Wildlife takes over, and they go back on the endangered list. So it is not Congress that is making these decisions. It is Fish and Wildlife Service.

I urge my colleagues to reject this amendment.

I yield back the balance of my time.

Ms. TSONGAS. Mr. Chairman, I just want to reiterate that the riders in the underlying bill will do nothing to help our native species but, instead, only serve to cause uncertainty and delay, undermining all the concerted effort by many stakeholders, all seeking to avoid a listing, particularly with the sage-grouse.

I urge my colleagues to support this amendment.

I yield back the balance of my time.

The Acting CHAIR. The question is on the amendment offered by the gentlewoman from Massachusetts (Ms. Tsongas).

The question was taken; and the Acting Chair announced that the noes appeared to have it.

Ms. TSONGAS. Mr. Chair, I demand a recorded vote. [It failed]

Mussels

ENFORCEMENT OF THE ENDANGERED SPECIES ACT REGARDING CERTAIN MUSSELS

Sec. __. None of the funds made available by this Act may be used by the United States Fish and Wildlife Service to enforce the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) with respect to the Clubshell, Fanshell, Rabbitsfoot, Rayed Bean, Sheepnose, or Snuffbox mussels.

The CHAIR. Pursuant to House Resolution 333, the gentleman from Indiana and a Member opposed each will control 5 minutes.

The Chair recognizes the gentleman from Indiana.

Mr. ROKITA. Mr. Chairman, I want to thank Chairman Calvert for managing the time tonight and for getting us to this point.

By my calculation, it has been 5 years since we have been able to have these kind of debates on the floor of the House, and here we are, at 12:30 at night.

Speaking for myself, I have listened to the entire debate here tonight on the floor, starting with votes after 6:30. Mr. Chairman, I was struck by the amount of amendments having to do with the Endangered Species Act, number one; and, number two, having to deal with the lists, whether threatened or endangered lists of Endangered Species Act.

Clearly--and I would agree with the gentlewoman on the other side of the aisle on this--reform and major reform of the Endangered Species Act is needed. That will take some time. That discussion has been ongoing.

It is nothing that hasn't already started in this Congress or in previous Congresses. I look forward to being a part of that solution in a very constructive way.

What about the near term? We have people, human constituents who are really suffering; and that is what my amendment, Mr. Chairman, is about tonight. Summer is a big time for any industry that depends on tourism to survive. I offer this amendment out of concern for two lake communities in my district.

Just last year, during the height of the summer's busy tourist season, the United States Fish and Wildlife Service required that the Northern Indiana Public Service Company, locally known as NIPSCO, release more water into the Tippecanoe River from Lake Freeman to protect a bed of endangered freshwater mussels that live further down the Tippecanoe River, all under the guise of the Endangered Species Act.

As a result, in a matter of days, water levels on Lake Freeman dropped dramatically. I have visited with local residents near Lake Freeman multiple times and have seen the lake in person. Growing up during the summers, I spent my time on the sister lake, Lake Shafer.

Many who live and work near the lake discovered, to their surprise, their boats were stuck, businesses were in jeopardy, and home values were going down; but more than that, stumps were rising out of the water, and personal health and safety were also in jeopardy as a result.

Now, I immediately contacted Fish and Wildlife, and I want to applaud them for their responsiveness and NIPSCO for working together. We created a technical assistance letter, otherwise known as a TAL. It is my estimation that that is going to have some effect. Again, I appreciate the reasonableness of all involved.

The current plan there is a temporary fix, and really, we ought to be able to do more. Now, currently, Fish and Wildlife receives funding to enforce the Endangered Species Act, which protects six species of mussels that live in the river, as the Clerk mentioned as he read the amendment.

The Endangered Species Act gives the highest priority to protected and listed species, and there is little anyone can do in terms of exceptions or exemptions or even any kind of balancing test to make sure that there is not a solution that could be a win-win. It is a very draconian law--strict compliance, no balancing test, no room for discretion or creative solution. That is where this reform is needed.

The statute, like I said, provides no balancing test for weighing the economic harms, and the Supreme Court of this land has refused to allow us or even lower courts to construct their own test, us as citizens. Compliance with this law, as currently written, requires diverting water from Lake Freeman to the Tippecanoe River to balance water levels, despite consideration of the economic impact and human safety.

In essence, my amendment limits the funding mechanism Fish and Wildlife would be able to use to enforce the Endangered Species Act with respect to these six types of mussels and eliminates the financial repercussions for failing to enforce the law.

Speaking firsthand with residents, lowering these water levels in Lake Freeman negatively affects the community and small businesses that rely on the tourists who enjoy the lake and the steady water level. Lower water levels also pose dangerous swimming conditions to both boaters and swimmers as formerly underwater tree stumps breach the water. This is unnecessary and a preventable hazard to those who use the lake and, again, in a win-win way.

It is all because of this draconian law that, although well intended, is badly in need of reform so that its practical effect can be overhauled and any of its misguided applications halted.

Hoosiers, like myself, are just as concerned for the environment as they are for their incomes and family recreation. It is not about antienvironmentalism, but they believe, like I said, there is a win-win solution here, if only the law would allow such a solution to exist. In the meantime, we ought to defund Fish and Wildlife's ability to enforce this law as it is written.

While I value nature and seek to protect endangered animals, the reward of protecting the mussel does not outweigh the economic damage done to this community or the personal safety or health of my human constituents.

The CHAIR. The time of the gentleman has expired.

Ms. McCOLLUM. Mr. Chairman, I claim time in opposition to this amendment.

The CHAIR. The gentlewoman from Minnesota is recognized for 5 minutes.

Ms. McCOLLUM. Mr. Chairman, this amendment would, once again, prevent Fish and Wildlife Service from enforcing the Endangered Species Act with respect to six different species of mussel and would restrict the Fish and Wildlife Service from offering any of the critical protections to preserve these species.

This amendment is harmful and, in my opinion, misguided. Once a species is listed under the Endangered Species Act, it is a role of Fish and Wildlife Service--is primarily permissive, helping parties comply with the act as they carry out their activities, the TAL that the gentleman referred to.

Under this amendment, all the Endangered Species Act prohibitions would still apply, but developers and landowners would have no avenue to comply with them. There could be no TAL. The Fish and Wildlife Service would be barred from issuing permits or exemptions.

This means landowners and industry and other parties who might need to take any of these six species of mussels would be vulnerable to a citizens suit. Additionally, this amendment would halt Fish and Wildlife Service enforcement of the Endangered Species Act, which has no effect on other Federal agencies that are funded outside of this bill.

The Endangered Species Act mandates that all Federal departments and agencies conserve listed species and use their authorities in furthering the purpose of this act.

Section 7 of the Endangered Species Act stipulates that any Federal agency that carries out, permits, licenses, funds, or otherwise authorizes activities that may affect all listed species must consult with the Fish and Wildlife Service to ensure that its actions are not likely to jeopardize the continued existence of any

listed species.

This amendment would stop--stop--section 7 consultation requirements for Federal agencies; rather, it would prohibit Fish and Wildlife from completing these consultations. That means a bridge or a highway project permitted or funded through the Federal Highway Administration or power projects permitted by the Department of Energy would be vulnerable to delays and stoppages and other potential lawsuits.

This amendment, in my opinion, is an all-out assault on the Endangered Species Act. In one fell swoop, it would block protections for six different species that are currently listed as threatened or endangered; but, regardless of one's position on the Endangered Species Act, it is just a bad amendment.

The gentleman's amendment will create uncertainty for developers, landowners, leaving them vulnerable to lawsuits. I don't think that was the gentleman's original intention, but that is the effect it will have because it will block section 7 consultations, gumming up permitting processing across the Federal Government, delaying projects, and adversely impacting the economy.

The amendment is bad for the environment. It is bad for the economy. It is bad for business. It is bad for the highways and energy projects. It is just bad for this bill. I urge my colleagues to reject this amendment.

Mr. Chairman, I yield back the balance of my time.

The Acting CHAIR (Mr. Loudermilk). The question is on the amendment offered by the gentleman from Indiana (Mr. Rokita).

The amendment was agreed to.

Preble's meadow jumping mouse

Sec. __. None of the funds made available by this Act shall be used to implement or enforce the threatened species listing of the Preble's meadow jumping mouse under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

The Acting CHAIR. Pursuant to House Resolution 333, the gentleman from Colorado and a Member opposed each will control 5 minutes.

The Chair recognizes the gentleman from Colorado.

Mr. LAMBORN. Mr. Chairman, I yield myself as much time as I may consume.

The Preble's meadow jumping mouse is a tiny rodent with a body approximately 3 inches long, with a 4- to 6-inch tail and large hind feet adapted for jumping. This largely nocturnal mouse lives primarily in streamside ecosystems along the foothills of southeastern Wyoming south to Colorado Springs in my district, along the front range of Colorado. To evade predators, the mouse can jump like a miniature kangaroo, up to 18 inches high, using its 6-inch-long whiplike tail as a rudder to switch directions in midair.

But the little acrobat's most famous feat was its leap onto the Endangered Species list in May 1998, a move that has hindered development in moist meadows and streamside areas from Colorado Springs, Colorado, to Laramie, Wyoming.

Among many projects that have been affected: the Jeffco Parkway southeast of Rocky Flats, an expansion of Chatfield Reservoir, and housing developments in El Paso County along tributaries of Monument Creek. Builders, landowners, and local governments in affected areas have incurred hundreds of millions of dollars in added costs because of the mouse. Protecting the mouse has even been placed ahead of protecting human life, and let me explain why that is the case.

On September 11, 2013, Colorado experienced a major flood event which damaged or destroyed thousands of homes, important infrastructure, and public works projects. And while Colorado has come a long way in rebuilding, there remains a lot of work to be done.

As a result of the Preble's mouse's listing as an endangered species, many restoration projects were delayed as Colorado sought a waiver. In fact, FEMA was so concerned that they sent out a notice that stated, ``legally required review may cause some delay in projects undertaken in the Preble's mouse habitat.''

 

[Time: 23:30]

It goes on to warn that ``local officials who proceed with projects without adhering to environmental laws risk fines and could lose Federal funding for their projects.'' While a waiver was eventually granted, the fact remains that the scientific evidence does not justify these delays or the millions of taxpayer dollars that go toward protecting a rodent that is actually part of a larger group that roams throughout half of the North American continent.

Several recent scientific studies have concluded that the Preble's mouse does not warrant protection because it isn't a subspecies at all and is actually part of the Bear Lodge jumping mouse population. Even the scientist that originally classified this mouse as a subspecies has since recanted his work.

Moreover, the Preble's mouse has a low conservation priority score, meaning the hundreds of millions of dollars already spent on protection efforts could have been better spent on other, more fragile species or other uses to accomplish good.

The threats that development and transportation allegedly pose to the mouse have been greatly overstated. Ample regulations already in place minimize the impact of development on this species.

My amendment would correct the injustice that has been caused by an inaccurate listing of the Preble's meadow jumping mouse and refocus the U.S. Fish and Wildlife Service's efforts on species that have been thoroughly scientifically vetted and that actually should come under the Endangered Species Act.

Mr. Chairman, I encourage my colleagues to support this amendment, and I reserve the balance of my time.

Ms. McCOLLUM. Mr. Chairman, I claim the time in opposition to this amendment.

The Acting CHAIR. The gentlewoman from Minnesota is recognized for 5 minutes.

Ms. McCOLLUM. Mr. Chairman, this amendment would prohibit Fish and Wildlife Service from treating the Preble's meadow jumping mouse as threatened or endangered under the Endangered Species Act and would restrict, again, the Fish and Wildlife Service from offering any of the critical protections to preserve the species.

This amendment is in addition to a growing list of anti-Endangered Species Act provisions, and it makes one wonder if--for the number of people here who are opposing the work that Fish and Wildlife is doing under the Endangered Species Act--if the intent isn't just to do away with the entire act.

Last year, Fish and Wildlife reviewed two petitions to delist the Preble's meadow jumping mouse and determined that protections under the Endangered Species were still necessary.

Voting for this amendment might undo a lot of work that was done that is well on its way to having this mouse removed from the endangered species list because this amendment ignores the determination and short-circuits the statutory process informed by science.

I would certainly think that a rider on this bill is not the place to have a robust debate about how close we are maybe with Fish and Wildlife being able to delist this mouse and, by putting this language in the bill, that it undoes a lot of potentially good work.

It throws out, with this amendment, the carefully science-based work, as I said, that the Fish and Wildlife Service has worked towards and chips away at the very foundation of the Endangered Species Act, which makes me wonder, as I said earlier, if the intent of many of the amendments being offered is not only to chip away but to do away with the Endangered Species Act.

Mr. Chair, I reserve the balance of my time.

Mr. LAMBORN. Mr. Chairman, all I will say in response is that this is a subspecies--actually, it is not even a species or subspecies. It should have never been listed in the first place.

The science shows that it is actually part of the Bear Lodge jumping mouse population. For that reason, it shouldn't even be on the list in the first place.

Mr. Chairman, I yield back the balance of my time.

Ms. McCOLLUM. Mr. Chairman, to the gentleman's remarks, this is not the place--as a rider on the environmental appropriations bill--to be having these thoughtful discussions. If that is what needs to take place, this is not the bill to be doing it on. I mean, we have an authorizing committee. They can hear things on it; and you can have a robust, full, transparent discussion and bring all the scientists in.

Let me close with this: I would be really remiss if I did not remind my colleagues that the Endangered Species Act, in fact, did rescue the bald eagle. The bald eagle's recovery is an American success story because we were united in the belief that this was the symbol of our Nation and was worth protecting for the continuing benefit of future generations.

It feels like we have lost sight of being able to do that today, especially with the lack of transparency and full debate that takes place with all these riders being offered on an authorization bill.

Congress needs to give serious consideration of what kind of conservation legacy we are leaving for our children, and our children will want us to do a better job than just to put riders onto an appropriations bill. I urge my colleagues to oppose this amendment.

Mr. Chairman, I yield back the balance of my time.

The Acting CHAIR. The question is on the amendment offered by the gentleman from Colorado (Mr. Lamborn).

The amendment was agreed to.

Five-year status reviews

Sec. __. None of the funds made available by this Act may be used to implement or enforce the threatened species or endangered species listing of any plant or wildlife that has not undergone a review as required by section 4(c)(2) of the Endangered Species Act of 1973 (16 U.S.C. 1533(c)(2) et seq.).

The Acting CHAIR. Pursuant to House Resolution 333, the gentleman from Colorado and a Member opposed each will control 5 minutes.

The Chair recognizes the gentleman from Colorado.

Mr. LAMBORN. Mr. Chair, I yield myself such time as I may consume.

Mr. Chairman, my amendment is straightforward. It simply ensures that the U.S. Fish and Wildlife Service has to follow section 4(c)(2) of the Endangered Species Act by conducting a review of all threatened and endangered plants and wildlife at least once every 5 years. It prohibits any funds in the bill from being used to implement or enforce the listing of any plant or wildlife that has not undergone the review as required by law.

Under the Endangered Species Act, the purpose of a 5-year review is to ensure that threatened and endangered species have the appropriate level of protection. The reviews assess each threatened and endangered species to determine whether its status has changed since the time of its listing or its last status review and whether it should be removed from the list, delisted; reclassified from endangered to threatened, downlisted; reclassified from threatened to endangered, uplisted; or maintain its current classification. You can find all this on the Web site of the U.S. Fish and Wildlife Service.

Because the Endangered Species Act grants extensive protection to a species, including harsh penalties for landowners and other citizens, it makes sense to verify if a plant or animal should be on the list in the first place.

Despite this commonsense requirement, the U.S. Fish and Wildlife Service has acknowledged that it has neglected its responsibility to conduct the required reviews for hundreds of listed species.

For example, in Florida alone, it was found that 77 species out of a total of 124 protected species in that State were overdue for a 5-year review. In other words, the government had not followed the law for a staggering 62 percent of species in that State.

In California, the U.S. Fish and Wildlife Service acknowledged that it had failed to follow the law for roughly two-thirds of the State's species listed under the Endangered Species Act and was forced by the courts to conduct the required reviews of 194 species.

By enforcing the 5-year review, which is in current law, my amendment will ensure that the U.S. Fish and Wildlife Service is using the best available scientific information in implementing its responsibilities under the Endangered Species Act, including incorporating new information through public comment and assessing ongoing conservation efforts. These are things we should all be in agreement with.

I encourage my colleagues to join me in ensuring that the U.S. Fish and Wildlife Service follows the Endangered Species Act, that we do not provide money in this bill that would violate current law.

Mr. Chairman, I reserve the balance of my time.

Ms. McCOLLUM. Mr. Chairman, I claim the time in opposition to this amendment.

The Acting CHAIR. The gentlewoman from Minnesota is recognized for 5 minutes.

Ms. McCOLLUM. Mr. Chairman, this amendment, again, would prohibit the Fish and Wildlife Service from implementing or enforcing the Endangered Species Act listing for any species that has not undergone a review. This amendment joins a growing list of anti-Endangered Species Act provisions.

The amendment would block the listing of any species that does not receive status review by Fish and Wildlife Service every 5 years. Fish and Wildlife Service is required to do a 5-year review every 5 years after a species is listed. However, with over 1,500 domestic listed species, that would amount to over 300 status reviews every year.

Why hasn't Fish and Wildlife done it? Well, it is because we--Congress--do not provide Fish and Wildlife Service with enough resources to complete such a large task.

Follow the law? They would love to. In fact, this bill that we are considering right now includes a 50 percent--a 50 percent--cut in the listing program. Now, how can they follow the law when Congress doesn't put any tools in the toolbox allowing them to do their job?

I really have to wonder if this House is prepared to appropriate the millions of dollars that would be needed to meet the requirement of this amendment.

Fish and Wildlife Service already follows a transparent, science-based listing process. This amendment only seeks to undermine the Endangered Species Act because there is not enough money in here that Congress provides Fish and Wildlife to do the job in the fashion that Congress has asked it to do.

In order to list a species under the Endangered Species Act, the Fish and Wildlife Service follows a strict legal process known as a rulemaking procedure. The first step in assessing the status of the species is the Fish and Wildlife Service publishes a notice of reviews that identify the species that is believed to meet the definition of threatened or endangered. The species are candidates.

Now, these notices of review then, the Fish and Wildlife Service goes out and seeks biological information to complete the status of the reviews for the candidate species; then the Fish and Wildlife Service publishes those notices in the Federal Register so the process is transparent to the public.

As you can see, the Fish and Wildlife Service follows an open, transparent policy that adequately reviews the species prior to listing. This amendment would exploit a 5-year review backlog that has been caused in part by this Congress' unwillingness to provide adequate funding in order to attack the endangered species list. Let's be transparent about that.

The Endangered Species Act exists to offer necessary protections to ensure species survival. Quite frankly, the majority of our constituents support that. Let's make sure that science and species management practices continue to dictate species listings, not Congress; and let's figure out a way to come together, as the gentleman said, to give Fish and Wildlife the tools that they need in order that they can follow the laws that Congress has requested them to follow and not do a smoke and mirror show about how Fish and Wildlife is refusing to follow the law.

They can only do what they are able to do with the dollars that Congress appropriates to them.

Mr. Chairman, I reserve the balance of my time.

Mr. LAMBORN. Mr. Chairman, I am glad that my colleague from Minnesota acknowledged that it is required under the law for Fish and Wildlife Service to do these 5-year reviews. I thank her for admitting that.

Their budget is approximately $1.4 billion, and they are able to prioritize within that $1.4 billion where they spend their resources. It is not Congress' fault. They just haven't made it a priority. They should make it a priority to follow the law. They can do these few hundred reviews every year out of $1.4 billion, I am sure.

I would ask my colleagues to support this amendment. Let's require this agency to follow the laws that are on the books.

Mr. Chairman, I yield back the balance of my time.

Ms. McCOLLUM. Mr. Chairman, I want to be really clear. This bill now includes a 50 percent cut to the listing program. The listing program is money that Congress puts in it to do the reviews. Congress cut it by 50 percent.

They can't just transfer money around. We have handcuffed and tied up the Fish and Wildlife Service by the amount of funding that Congress gives them to do their job.

They don't wake up in the morning and say: We don't want to follow the law.

They wake up in the morning, and they see how much Congress has appropriated them.

Mr. LAMBORN. Will the gentlewoman yield?

Ms. McCOLLUM. I yield to the gentleman from Colorado.

Mr. LAMBORN. I just want to point out that what you are talking about would be in the future. I am talking about the current status of them not following the law by doing the reviews.

Ms. McCOLLUM. Reclaiming my time, they do not have the funding.

[Time: 23:45]

Congress has not given them the funding in the listing program to do their job. Congress needs to be held accountable for the 300 listings not being able to be done every year because Congress has failed to give them the money to do the laws that Congress passed.

With that, Mr. Chairman, I yield back the balance of my time.

The Acting CHAIR. The question is on the amendment offered by the gentleman from Colorado (Mr. Lamborn).

The amendment was agreed to.

 

 

Jul 062015
 

Had to post this line from the opinion (the full text of which is below):

"Notwithstanding the constitutional concerns raised in those cases, SWANCC and Rapanos are easily distinguishable on the critical and obvious ground that we are not concerned here with a small intrastate area of wetland; we are dealing with North America’s largest estuary."

Here's the court's conclusion:

Water pollution in the Chesapeake Bay is a complex problem currently affecting at least 17,000,000 people (with more to come). Any solution to it will result in winners and losers. To judge from the arguments and the amici briefs filed in this case, the winners are environmental groups, the states that border the Bay, tourists, fishermen, municipal waste water treatment works, and urban centers. The losers are rural counties with farming operations, nonpoint source polluters, the agricultural industry, and those states that would prefer a lighter touch from the EPA. Congress made a judgment in the Clean Water Act that the states and the EPA could, working together, best allocate the benefits and burdens of lowering pollution. The Chesapeake Bay TMDL will require sacrifice by many, but that is a consequence of the tremendous effort it will take to restore health to the Bay—to make it once again a part of our “land of living,” Robert Frost, The Gift Outright line 10—a goal our elected representatives have repeatedly endorsed. Farm Bureau’s arguments to the contrary are unpersuasive, and thus we affirm the careful and thorough opinion of the District Court.

Jul 022015
 

The Fish and Wildlife Service has released a polar bear Conservation Management Plan that is "more broadly focused than a typical recovery or conservation plan."

The service estimated the cost of implementing the plan over the next five years at about $12.9 million.

The plan has not yet been released; a Federal Register notice announcing it went on Public Inspection today (see below).

Here's a key excerpt from that notice:

Conservation and recovery actions are specified in the Polar Bear Plan. The single most important action for the recovery of polar bears is global reduction of atmospheric greenhouse gases, which, if achieved, should result in reduced global climate change, including Arctic warming and sea ice loss. Along with communicating that fact, the Polar Bear Plan identifies a suite of high-profile actions designed to ensure that polar bears remain in sufficient number and diversity so that they are in a position to recover once climate change is addressed. Those actions include the following:

  • Limit global atmospheric levels of greenhouse gases to levels appropriate for supporting polar bear recovery and conservation, primarily by reducing greenhouse gas emissions Support international conservation efforts through the Range States relationships
  • Manage human–bear conflicts
  • Collaboratively manage subsistence harvest
  • Protect denning habitat
  • Minimize risks of contamination from spills
  • Conduct strategic monitoring and research