Aug 312015

Judges on opposite ends of the U.S. have issued opinions favoring National Marine Fisheries Service decisions concerning fisheries’ impact on endangered species.

More accurately, one judge gave NMFS an unvarnished win, and one handed the agency a victory with a couple of caveats.

In the first decision, issued Aug. 25, a federal judge in Alaska ruled against Oceana and Greenpeace, which had challenged increased industrial fishing in the central and western Aleutian Islands, an area that includes critical habitat for the endangered western Distinct Population Segment of Steller sea lions (Oceana and Greenpeace v. NMFS, 14-253-TMB, D. Alaska).

U.S. District Judge Timothy M. Burgess concluded that both NMFS’ BiOp and EIS withstood legal scrutiny.

In another, decided today, a judge in Washington, D.C., declined to vacate a Biological Opinion “in which NMFS . . . determined that the combined operation of seven fisheries is not likely to jeopardize the continued existence of the Northwest Atlantic Distinct Population Segment of loggerhead sea turtles” (Oceana v. Pritzker, 12-41-PLF, D.D.C.).

U.S. District Judge Paul Friedman did, however, remand the BiOp to NMFS for the “limited purposes” of further explaining “the sufficiency of its monitoring mechanisms” and to explain the short-term impacts of climate change on loggerheads.

Friedman said that “in this BiOp, as it did in the Sea Scallop BiOp, NMFS applied an interpretation of ‘reduce appreciably’ that examined whether the action would cause a ‘considerable or material reduction in the likelihood of survival and recovery’ of the species. The Court previously upheld this interpretation as consistent both with the regulation and with the underlying statute, see Oceana, Inc. v. Pritzker, 75 F. Supp. 3d at 481-87, and the Court stands by that analysis. Consequently, the Court will say no more on that point in this Opinion.”

Regarding cumulative effects of the fisheries, Friedman said:

"[I]n the absence of information to support future estimates, NMFS’ assumption that future effects would be similar to past effects was a rational one, and Oceana fails to offer any reason or any facts or data of its own to conclude otherwise. And because NMFS has explained how, based on the reasonable assumption it has made, cumulative effects are reflected in the population trends used to conduct the jeopardy analysis, the Court rejects Oceana’s contention that those effects were disregarded in the BiOp."

Friedman also found for the agency on the "aggregate effects" argument made by Oceana, and on its contention that NMFS did not adequately consider the loggerhead’s recovery.

"Contrary to Oceana’s contention, the BiOp’s consideration of recovery is not merely derivative of its analysis of the likelihood of survival. Rather, just as it did in the Sea Scallop BiOp, NMFS has discussed in detail the ‘recovery plan’ for the [Northwest Atlantic] DPS and the effects of the seven fisheries with respect to various 'recovery criteria.' "

Oceana had argued that the BiOp should have a timeframe of 100 years, not 10. Friedman disagreed.  He also partially rejected the group’s climate change arguments.

"Oceana overstates the case when it accuses the agency of thereby 'assuming no impact from climate change' in performing the jeopardy analysis. As with the Sea Scallop BiOp, here the agency considered the available science concerning the potential long-term impacts of climate change on loggerheads, and offered fairly extensive discussion of the possibilities suggested by this science.”

However, "As Oceana accurately states, ... the agency’s reliance on the purported 'century scale' of the effects of climate change shows that NMFS failed to take full account of the record evidence of short-term effects caused by climate change. Indeed, the BiOp describes clear evidence that climate change is exerting significant environmental impacts right now, as well as evidence that these impacts will persist or accelerate in the immediately approaching decades."

"The relevance of sea-level rise as a factor affecting loggerheads in the present and near-term future— and the consequent need for the agency to provide further explanation — is reinforced by a “recent study by the U.S. Geological Survey [finding] that sea levels in a 620-mile ‘hot spot’ along the East Coast are rising three to four times faster than the global average.” [Administrative Record]  52438. The Court therefore will remand the BiOp to NMFS so that it can more clearly explain the connection between the record evidence of present and short-term effects caused by climate change, and the agency’s conclusion that climate change will not result in any significant effects on the species in the short-term future."

Press release on Steller sea lion lawsuit

Aug 282015

The agency issued a statement in response to U.S. District Judge Ralph Erickson's grant of a preliminary injunction blocking implementation of the Clean Water Rule:

The Clean Water Rule is fundamental to protecting and restoring the nation’s water resources that are vital for our health, environment, and economy. EPA and the Department of the Army have been preparing to implement the rule on the effective date of August 28.

Since publication of the rule in the Federal Register, numerous lawsuits were filed challenging the regulation, and several parties sought preliminary injunctions to delay implementation of the rule.  This week, United States District Courts in Georgia and West Virginia agreed with the Agencies that legal challenges to the Rule could only be brought in the United States Court of Appeals for the 6th Circuit and therefore denied the requests for preliminary injunction.  On August 27, the District Court for North Dakota found that it had jurisdiction and granted the request of a number of States and issued a decision preliminarily enjoining the Clean Water Rule.

Under the order issued by the District Court of North Dakota, the parties that obtained the preliminary injunction are not subject to the new rule, and instead continue to be subject to the prior regulation.  In light of the order, EPA and the Army Corps of Engineers will continue to implement the prior regulation in the following States:  Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.

In all other respects, the rule is effective on August 28.  The Agencies are evaluating these orders and considering next steps in the litigation.

As EPA and the Army Corps of Engineers implement the Clean Water Rule, the agencies are taking additional steps to increase transparency, respond to information requests, and streamline permitting. Read more:

Additional background on the Clean Water Rule: 

Protection for about 60 percent of the nation’s streams and millions of acres of wetlands has been confusing and complex as the result of Supreme Court decisions in 2001 and 2006. The Clean Water Rule protects streams and wetlands that are scientifically shown to have the greatest impact on downstream water quality and form the foundation of our nation’s water resources.  EPA and the U.S. Army are ensuring that waters protected under the Clean Water Act are more precisely defined, more predictable, easier for businesses and industry to understand, and consistent with the law and the latest science.

Clean water is vital to our health, communities, and economy. We need clean water upstream to have healthy communities downstream. The health of rivers, lakes, bays, and coastal waters depend on the streams and wetlands where they begin. Streams and wetlands provide many benefits to communities by trapping floodwaters, recharging groundwater supplies, filtering pollution, and providing habitat for fish and wildlife.  People depend on clean water for their health: About 117 million Americans -- one in three people – get drinking water from streams that were vulnerable to pollution before the Clean Water Rule. Our cherished way of life depends on clean water: healthy ecosystems provide wildlife habitat and places to fish, paddle, surf, and swim. Our economy depends on clean water: manufacturing, farming, tourism, recreation, energy production, and other economic sectors need clean water to function and flourish.

Additional information is at

Aug 272015

Quick excerpt:

"The Rule allows EPA regulation of waters that do not bear any effect on the 'chemical, physical, and biological integrity' of any navigable-in-fact water. While the Technical Support Document states that pollutants dumped into a tributary will flow downstream to a navigable water, the breadth of the definition of a tributary set forth in the Rule allows for regulation of any area that has a trace amount of water so long as 'the physical indicators of a bed and banks and an ordinary high water mark' exist."


Aug 272015

A former EPA employee believed to be living in Australia will be deposed as part of a Federal Advisory Committee Act case involving the Pebble Mine (Pebble Limited Partnership v. EPA, 14-171-HRH, D. Alaska).

The former employee, Phillip North, "may be the only person within the EPA capable of shedding meaningful light upon whether or not unauthorized advisory committees were created or utilized in connection with preparation of the Bristol Bay water assessment," U.S. District Judge H. Russel Holland said in a brief order issued today (and posted below). (Click on "Phillip North" for Alaska Dispatch News story on the attempt to bring North to the U.S.)

Said Holland:

"Mr. North appears to be at the center of Pebble’s claims that the EPA impermissibly formed advisory committees, which claims are the basis for Pebble’s complaint in this case. It is clear to the court from FOIA proceedings that Mr. North was the originator of documents likely related to the claims made in this case which (a) exist only on private computer equipment and were not forwarded to EPA files, (b) documents on an EPA hard drive which has crashed and may or may not be recoverable, and(c) documents created and encrypted by North on a thumb drive which EPA has not been able to access."

In approving the issuance of a subpoena, the judge said, "[North] (much more so than others) is in a position to explain what was transpiring within the EPA in the lead-up to the preparation of the Bristol Bay water assessment, and that testimony and documents which he alone may be in a position to produce, will further the interest of justice."

Holland scheduled the deposition for Nov. 12 at the law offices of Reeves Amodio in Anchorage.

Aug 262015

Earthjustice press release:

A federal judge today refused a request by a coalition of California Central Valley agribusiness and irrigators to turn off the water in northern California’s Trinity River. The Trinity is a tributary of the Klamath River, where major salmon runs are currently facing the threat of a major fish kill due to the drought.

Source: Judge Rejects Latest Water Grab on California's Trinity River

NOAA releases climate science strategy

 Posted by on August 25, 2015
Aug 252015

The National Marine Fisheries Service, also known as NOAA Fisheries, has released its first climate science strategy, which says that "without adequately incorporating climate change, NOAA Fisheries conservation and management efforts are likely to be ineffective, produce negative results, or miss opportunities."

Press release  ||  Full report

The strategy "identifies seven key steps to increase production, delivery, and use of climate-related information to support the management of fish stocks, fisheries, and protected species," NMFS said. "The steps focus on how a changing climate affects living marine resources, ecosystems, and the communities that depend on them, and how to respond to those changes."


Aug 242015

Aug. 24 -- The Environmental Protection Agency's search for communications on its Pebble Mine deliberations complied with the Freedom of Information Act, a federal judge ruled today (Pebble Limited Partnership v. U.S. EPA, 14-199-HRH, D. Alaska).

"The court finds that the EPA’s search parameters were adequate and the search has been ongoing," U.S. District Judge H. Russel Holland said in his 7-page order.

He added, however, that he would examine disputed documents in camera -- in his chambers -- to determine which, if any, portions of them should be released. He will first look at 118 documents that are the subject of a production request in a different case filed by Pebble (but also overseen by Holland) alleging violations of the Federal Advisory Committee Act.

"The court supposes that there will surely be a substantial number of documents as to which defendant claims FOIA Exemption 5. Therefore, counsel shall confer and, no later than the date on which documents are to be delivered to the court in camera for review, propose a briefing schedule for resolution of the FOIA Exemption 5 claims."

Exemption 5 covers communications within or between agencies.

Holland also asked the parties to discuss a Pebble proposal that he examine a sample of documents redacted  in their entirety, "with a view to including in defendant’s submission of documents for in camera review (and briefing) a representative number of such documents that have been withheld on the basis of FOIA Exemption 5."

The full order is below.


Aug 212015

Full decision below

The Ninth Circuit has affirmed a district court opinion concluding that discharges from the Klamath Straits Drain into the Klamath River did not violate the Clean Water Act (ONRC Action v. U.S. Bureau of Reclamation, 12-35831).

The case attracted a great deal of interest because of the nature of the legal issue, which has been before the Supreme Court, most notably in Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, ___ U.S. ___, 133 S. Ct. 710 (2013), which the appeals court panel said "provid[ed] a simpler path to resolving this appeal." The court continued:

In that case, the Supreme Court considered the question of whether "the flow of water out of a concrete channel within a river rank[s] as a 'discharge of a pollutant' " under the CWA. Id. at 711. The Court answered that question in the negative. It held that "pumping polluted water from one part of a water body into another part of the same body is not a discharge of pollutants under the CWA," id. at 711, citing to its prior decision in South Florida Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95, 109–12 (2004). The L.A. County Flood Control decision acknowledged that 'storm water is often heavily polluted.' 133 S. Ct. at 712. Nonetheless, it is the addition of pollutants from a point source that is prohibited under the CWA, and the Court held that "no pollutants are 'added' to a water body when water is merely transferred between different portions of that water body." Id. at 713. A water transfer counts as a discharge of pollutants under the CWA only if the two separate bodies of water are "meaningfully distinct water bodies." Id. (quoting Miccosukee, 541 U.S. at 112).

The court found that "The record in this case demonstrates that the waters of the KSD are not meaningfully distinct from those of the Klamath River."

Summary prepared by court staff (which constitutes no part of the opinion)

The panel affirmed the district court’s summary judgment in favor of the United States Bureau of Reclamation and other defendants in a citizen suit brought by an environmental group under the Clean Water Act, alleging defendants violated the Act by discharging pollutants from the Klamath Straits Drain into the Klamath River without a permit.

The Clean Water Act limits the “discharge of pollutants,” and makes unlawful the addition from a point source of any pollutant to navigable waters without a permit. The Klamath River is a navigable water. The Klamath Straits Drain moves water from Lower Klamath Lake back to the Klamath River, and is part of the Klamath Irrigation Project operated by the Bureau of Reclamation in parts of Oregon and California.

The panel held that because the waters flowing into the Klamath River from the Klamath Straits Drain were not “meaningfully distinct,” as that term was used in L.A. Cnty. Flood Dist. v. Natural Resources Defense Council, 133 S. Ct. 710, 713 (2013) (holding that “no pollutants are ‘added’ to a water body when water is merely transferred between different portions of that water body”), a permit was not required under the Clean Water Act.

Aug 192015

Company in bankruptcy pleads guilty to felony violation. Press release from DOJ follows. DOJ's link here.


FOR IMMEDIATE RELEASE                                                                                             ENRD


(202) 514-2007

WWW.JUSTICE.GOV                                                                                    TTY (866) 544-5309


WASHINGTON — Mississippi Phosphates Corp. (MPC), a Mississippi corporation which owned and operated a fertilizer manufacturing facility located on Bayou Casotte in Pascagoula, Mississippi, pleaded guilty today to a felony information charging the company with a criminal violation of the Clean Water Act, announced Principal Deputy Assistant Attorney General Sam Hirsch of the Justice Department’s Environment and Natural Resources Division and U.S. Attorney Gregory K. Davis for the Southern District of Mississippi.

As part of the guilty plea, MPC admitted discharging more than 38 million gallons of acidic wastewater in August 2013.  The discharge contained pollutants in amounts greatly exceeding MPC’s permit limits, resulting in the death of more than 47,000 fish and the closing of Bayou Casotte.  MPC also admitted that, in February 2014, MPC discharged oily wastewater from an open gate on a storm water culvert into Bayou Casotte, creating an oily sheen that extended approximately one mile down the bayou from MPC.

MPC entered its guilty plea before Chief Judge Louis Guirola Jr. of the U.S. District Court for the Southern District of Mississippi.  Because MPC is in bankruptcy and is obligated to assist in funding the estimated $120 million cleanup of its site, the court accepted the parties’ agreement for MPCto transfer 320 acres of property near to its Pascagoula plant to become a part of the Grand Bay National Estuarine Research Reserve, which is managed by the Mississippi Department of Marine Resources as part of the National Oceanic and Atmospheric Administration’s National Estuarine Research Reserve System.

“With this plea, Mississippi Phosphates has accepted responsibility for having discharged millions of gallons of industrial pollutants that killed tens of thousands of fish, damaged marine habitats and polluted recreational waterways,” said Principal Deputy Assistant Attorney General Hirsch.  “Mississippi Phosphates has acknowledged its misconduct and has been sentenced to transfer property it owns that is adjacent to the Grand Bay National Estuary, thus protecting and potentially rehabilitating a vital marine resource that this company’s pollutant discharges had severely damaged.”

As the felony information describes, when it was in full production, MPC manufactured diammonium phosphate fertilizers from phosphate rock which it received by ship and rail and from sulphur which was piped to its facility from a neighboring oil refinery.  In its production of fertilizer, MPC generated a variety of pollutants and hazardous wastes.  MPC has been regulated under a number of environmental statutes that govern the production, storage and release of a variety of air and water pollutants as well as hazardous wastes.  In the manufacturing process, strong acids and ammonia were produced.  If improperly discharged, acids and ammonia can be highly toxic to fish and to other forms of marine life.  MPC was obligated to comply with permits issued by the Mississippi Department of Environmental Quality (MDEQ) under the authority of the Environmental Protection Agency (EPA) as prescribed by the Clean Water Act.  These permits regulated the storage and discharge of MPC’s stormwater and wastewater, prescribing the circumstances under which they could be discharged into Bayou Casotte and limiting the concentration and quantity of the pollutants they could contain.

As detailed in the felony information, since January 2000, MPC has been cited by MDEQ in numerous notices for hundreds of violations of its Clean Water Act permit for discharging wastewater exceeding its pollutant limits.  MPC was also cited for its failure to maintain adequate wastewater storage capacity, its discharge of untreated wastewater from its sulfuric acid plant directly through MPC’s main outfall, its combined release of untreated and undertreated stormwater and process wastewater from other outfalls, and its failure to implement required remedial measures to prevent the pollutant discharges and environmental harm it has caused for decades.

An April 2005 discharge resulted in the release of more than 17 million gallons of highly acidic wastewater into waterways adjacent to its facility, including Bayou Casotte, Tillman Creek and Bangs Lake of the Grand Bay National Estuarine Research Reserve.  These waters are some of the most productive nurseries for aquatic species on the Gulf Coast.  MPC’s massive discharge of pollutants resulted in the death of thousands of fish and other forms of marine life as well as the destruction of marsh grass, trees and shrubs. In the years following this environmental catastrophe, in spite of MDEQ’s orders and MPC’s remedial proposals, MPC never implemented the measures necessary to prevent the release of pollutants from its facility and the discharge of an even larger torrent of wastewater destroying even more marine life.

U.S. Attorney Davis praised the efforts of EPA’s Criminal Investigation Division, for its diligent work in the investigation of this matter.  Senior Trial Attorney Jeremy F. Korzenik of the Department of Justice’s Environmental Crimes Section and Assistant U.S. Attorney Gaines Cleveland are the prosecutors in charge of the case.

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