Steve Davies

Steve Davies is editor and publisher of Endangered Species & Wetlands Report, which he started in 1995. Davies began his professional journalism career as a copy editor for the weekly Gazette Newspapers in Gaithersburg, Md., before becoming a reporter there. He then moved to Carlisle, Pa., covering Cumberland County government for the daily Sentinel. He returned to the Washington area to cover Congress and federal regulatory agencies for a series of trade newsletters before starting his own publication, which is an independent venture. Click LinkedIn for more detail.

ESWR reaches end of the road

 Posted by on November 28, 2015
Nov 282015
 

Message from Editor/Publisher Steve Davies

I regret to inform you that I have decided to stop publishing Endangered Species & Wetlands Report. This decision did not come easily, but after failing for too long to meet a monthly publication schedule for the newsletter and neglecting (for the most part) to send out invoices, publication simply is no longer feasible. (One might say that I published ESWR with passion for 13 wonderful years – 20 years total).

In the end, working on my own no longer provided enough personal satisfaction to continue.

I have taken a position with Agri-Pulse Communications (www.agri-pulse.com), where I will write about a variety of issues affecting agriculture, including regulation of pesticides and genetically modified organisms (GMO’s). I expect that I will continue to write about endangered species and wetlands, off and on.

The website will remain online but will not be actively updated. Instead, I will attempt to organize the online materials that are already posted and make them as freely available as possible. I also intend to provide a guide to gathering information about the ESA and wetlands. My Twitter handle remains the same for now – @ESWR_Update – and you can always reach me at poplarav@gmail.com with any suggestions.

I cannot thank enough all the folks who helped me cover the fascinating and controversial topics of endangered species and wetlands: lawyers of all stripes, federal employees at numerous agencies, especially the Fish and Wildlife Service, National Marine Fisheries Service, Army Corps of Engineers, and EPA, and many, many more people at environmental groups, industry trade groups, consulting firms, universities, and the like. This newsletter would never have been possible without your patient assistance.

I also extend personal thanks to friends and family members who have helped me in all kinds of ways over the years, especially my mother (still going strong at 91) and my late father, who read ESWR from the beginning and stored the issues in big three-ring binders.

Sincerely,

Steve Davies

 

Nov 132015
 

Critical habitat for the Riverside fairy shrimp was upheld by U.S. District Judge Ketanji Brown Jackson today.

                              from Center for Biological Diversity

The ruling came in a challenge from landowners who want to build a recycling center and landfill on 57 acres in San Diego County. The judge found that the Fish and Wildlife Service's economic analysis and NEPA determination were legal.

Bu the case isn't over. Jackson ordered additional briefing on the issue of whether 56 acres around the one-acre pond considered to be fairy shrimp habitat "is, in fact, watershed."

The portion of the administrative record submitted to the court "does not explain how the FWS determined that all of the geographic area that it designated as critical habitat qualifies as such," Jackson said.

Both sides "will have an opportunity to augment the Administrative Record Appendix and to file supplemental briefs that are limited to this factual issue," the judge said in her 62-page opinion.

Nov 102015
 

PRESS RELEASE, 11/10/15

Interior Department, State of California Announce Innovative Strategy for Renewable Energy and Conservation on Public Lands in California Desert

Renewable energy milestone continues to advance Administration’s clean energy goals
in push toward Paris climate discussions

WASHINGTON –  U.S. Secretary of the Interior Sally Jewell and California Secretary for Natural Resources John Laird today announced the final environmental review of an innovative landscape-scale blueprint to support renewable energy development and conservation on 10 million acres of federal public lands, managed by the Bureau of Land Management in the California desert. The release of the Final Environmental Impact Statement for Phase I of the Desert Renewable Energy Conservation Plan (DRECP) is a major step forward, and a key part of the collaborative effort to streamline renewable energy while conserving unique and valuable desert ecosystems and promoting outdoor recreation opportunities.

The blueprint is part of a larger, comprehensive effort with California, covering 22 million acres in the state’s desert region. Collectively, these lands contain the potential to generate up to 20,000 megawatts of renewable energy development, while meeting federal and state renewable energy and climate change goals through 2040.

“Using a landscape-level perspective, unprecedented collaboration and extensive public engagement, this phase of the Desert Renewable Energy Conservation Plan will facilitate clean energy development, creating new jobs while cutting carbon pollution,” Secretary Jewell said. “This strategy provides effective protection and conservation for wildlife, recreation and cultural resources, while encouraging streamlined renewable energy development in the right places.”

“The state of California has worked closely for years with the U.S. Department of the Interior to reach this milestone,” Laird said. “We salute our federal partners for this achievement. This foundational plan allows conservation, recreation and renewable energy development to fit together in a durable, balanced way.”

Phase I of the DRECP, which is managed by the Bureau of Land Management, designates Development Focus Areas with high-quality solar, wind and geothermal energy potential, access to transmission and would allow impacts to be managed and mitigated. Applications will benefit from a streamlined permitting process with predictable survey requirements and simplified mitigation measures, and Interior is considering additional financial incentives through an ongoing rulemaking process.

The first phase also identifies National Conservation Lands, and designates Areas of Critical Environmental Concern, wildlife allocations and National Scenic and Historic Trail management corridors to conserve biological, cultural and other values. Special Recreation Management Areas and Extensive Recreation Management Areas are identified to recognize and promote recreational opportunities and public access. These lands would be closed to renewable energy and benefit from adaptive management in the face of climate change.

“The plan released today will advance state and federal conservation goals in the desert regions of California while facilitating the timely permitting of renewable energy projects in appropriate areas,” said Neil Kornze, director of the Bureau of Land Management. “A vision for the desert, the DRECP represents an excellent example of collaboration among federal and state partners.”

The non-federal land component of the DRECP, Phase II, is ongoing, led by California and includes close coordination among federal, state, county and private land partners. The phased approach provides additional opportunities for agencies to work with counties and other stakeholders to address issues and concerns, and better align local, state and federal policies and goals. County planning efforts are critical because these jurisdictions have primary land-use and permitting authority on private lands. The counties include Imperial, Inyo, Kern, Los Angeles, Riverside, San Bernardino and San Diego.

“Having the federal component of the DRECP in place will be tremendously valuable as we continue to work with the counties and our state and federal agency partners on Phase II,” said Karen Douglas, commissioner of the California Energy Commission. “By providing certainty for development and conservation across approximately 10 million acres of public land, the BLM has set a strong foundation for achieving the broader vision of the DRECP.”

The overall planning effort for DRECP began in 2008, shortly after the desert region began experiencing a surge of applications for renewable energy projects. At that time, most applications for renewable energy projects were reviewed and approved on a case-by-case basis.

Between the draft DRECP released in September 2014 and today’s release of the Bureau of Land Management component, the agencies held 11 public meetings and received more than 16,000 comments. Based on these suggestions, the agencies made modifications to land area designations, provided more details on management of conservation lands, clarified how unallocated lands would be managed, refined the environmental analysis and reorganized the document for greater clarity.

President Obama's Climate Action Plan outlines an array of actions his administration is taking to use existing authorities to reduce carbon pollution, increase energy efficiency, expand renewable and other low-carbon energy sources, and strengthen resilience to extreme weather and other climate impacts. As part of the plan, announced in June 2013, the president directed the Interior Department to approve at least 20,000 megawatts of renewable energy capacity on the public lands by 2020. The DRECP will also help California meet a number of long-term climate and energy goals including the reduction of greenhouse gas emissions by forty percent from 1990 levels and a fifty percent renewable portfolio standard by 2030.

Interior has permitted 57 onshore utility-scale renewable energy projects since 2009 totaling $40 billion in potential capital investments by industry as part of a Department-wide effort to advance smart development of renewable energy on our nation's public lands. Together, the wind, solar and geothermal projects could support more than 26,000 construction and operations jobs and generate about 15,000 megawatts of power to communities across the West, or enough to power five million homes. Seventeen of these renewable energy projects have been approved in the DRECP planning area, which could generate about 4,800 megawatts of power.

The DRECP planning effort was also called out as an early “sign of progress” in Interior's strategy for advancing landscape-scale mitigation policies and practices. That strategy, released in April 2014, describes the key principles and actions necessary to shift from project-by-project management to consistent landscape-scale, science-based management of the lands and resources for which the Department is responsible.

An informational webinar will be held on Thurs., Nov. 19, from 10:00-11:30 a.m. to present DRECP concepts and changes between the draft and final plans. Webinar details are available at and www.blm.gov/ca/drecp.

The federal strategy for these 10 million acres of public lands is detailed in the Bureau of Land Management’s Proposed Land Use Plan Amendment and Final Environmental Impact Statement. The notice of availability for these documents will be published in the Federal Register on Fri., Nov. 13, beginning a 30-day protest period, after which the Interior Department will issue a Record of Decision. This will conclude Phase I of the DRECP.

To view the Proposed Land Use Plan Amendment and Final Environmental Impact Statement as well as additional DRECP documents and information, visit  or www.blm.gov/ca/drecp.

11/9/2015

Date: November 9, 2015
Contacts: Jessica Kershaw (Interior), Interior_Press@ios.doi.gov
Dana Wilson (U.S. Bureau of Land Management), 916-978-4622
Jody Holzworth (U.S. Fish and Wildlife Service), 916-414-6619
Lori Sinsley (California Energy Commission), 916-651-0488
Jordan Traverso (California Department of Fish and Wildlife), 916-654-9937

WASHINGTON – On Tuesday, November 10, U.S. Secretary of the Interior Sally Jewell and California Secretary for Natural Resources John Laird will hold a press conference call to announce a major milestone for the Desert Renewable Energy Conservation Plan (DRECP), an innovative, landscape-level conservation and renewable energy planning effort in California.

The plan – which covers 22.5 million acres in seven counties across the California desert and can accommodate up to 20,000 megawatts of renewable energy – is a major step in addressing President Obama’s Climate Action Plan to reduce carbon pollution, create jobs and move our economy toward clean energy sources.

The Interior Department’s Bureau of Land Management worked with key federal and state partners and a diverse range of stakeholders to complete a Proposed Land Use Plan Amendment and Final Environmental Impact Statement, both of which will serve as a future foundation of the DRECP.

Nov 052015
 

Scroll down for email cancelling webinars, the description of one of the webinars, and emails from within NRCS about the need for the training.

A Natural Resources Conservation Service official cancelled two webinars last year on the risks of neonicotinoid insecticides to aquatic ecosystems and pollinators, saying the topics were "not appropriate" for an NRCS-sponsored webinar. (link goes to PEER press release)

Public Employees for Environmental Responsibility revealed the cancellations in documents it obtained and posted online.

In a press release, PEER said:

On June 2, 2014, a nationally advertised webinar entitled “Pesticides and Potholes: Understanding the Risks of Neonicotinoid Insecticides to Aquatic Ecosystems in Prairie Canada and Beyond” was nixed on orders from Wayne Honeycutt, Deputy Chief for Science and Technology for USDA’s Natural Resources Conservation Service (NRCS). A companion webinar on the efficacy of neonicotinoid seed treatments and practices to minimize adverse impacts on pollinators and other non-target organisms was also scrubbed. The cancelled webinars were part of a series addressing priority training needs identified by NRCS and partner biologists. Without elaborating, Honeycutt declared in an email that “these topics were not appropriate for an NRCS sponsored webinar.”

The revelation came just days after PEER announced the filing of a whistleblower complaint on behalf of a USDA entomologist, apparently punished for publishing his research.

Oct 142015
 

In the latest development in the WOTUS wars. a panel of federal judges has declined to move all the outstanding cases to the District of Columbia District Court, as requested by the Environmental Protection Agency.

That leaves nine cases active in seven districts. (See the order below for a list of those cases.)

"On the basis of the papers filed and hearing session held, we conclude that Section 1407 centralization will not serve the convenience of the parties and witnesses or further the just and efficient conduct of this litigation," the judges assigned to the case said.

Those judges are Marjorie O. Rendell, Charles R. Breyer, Lewis A. Kaplan, Ellen Segal Huvelle, R. David Proctor and Catherine D. Perry.

Said the court:

"The resolution of these actions will involve only very limited pretrial proceedings. Discovery, if any, will be minimal, as these cases will be decided on the administrative record. Motion practice will consist of motions regarding that record, motions for preliminary injunctive relief, and summary judgment motions. In short, these actions will turn on questions of law with respect to whether the EPA and the Corps exceeded their statutory and constitutional authority when they promulgated the Clean Water Rule. Accordingly, centralization under Section 1407 is inappropriate."

. . .

"[C]centralization of these actions would be problematic due to their procedural posture. Several motions for preliminary injunctive relief already have been ruled upon, resulting in different jurisdictional rulings by the involved courts. Two courts have held that only the United States Courts of Appeals have jurisdiction over these regulatory challenges, whereas another reached the opposite conclusion, that jurisdiction over these actions properly resides in the United States District Courts. 3 Centralization thus would require the transferee judge to navigate potentially uncharted waters with respect to law of the case. This procedural complication also weighs against centralization in this instance."

Oct 142015
 

In the latest development in the WOTUS wars. a panel of federal judges has declined to move all the outstanding cases to the District of Columbia District Court, as requested by the Environmental Protection Agency.

That leaves nine cases active in seven districts. (See the order below for a list of those cases.)

"On the basis of the papers filed and hearing session held, we conclude that Section 1407 centralization will not serve the convenience of the parties and witnesses or further the just and efficient conduct of this litigation," the judges assigned to the case said.

Those judges are Marjorie O. Rendell, Charles R. Breyer, Lewis A. Kaplan, Ellen Segal Huvelle, R. David Proctor and Catherine D. Perry.

Oct 092015
 

In 2-1 ruling, appeals court says a nationwide stay "honors the policy
of cooperative federalism that informs the Clean Water Act"

The Sixth Circuit has stayed implementation of the "Waters of the United States" (WOTUS) rule (or, as EPA would have it, the Clean Water Rule).

The two judges in the majority were Circuit Judges David W. McKeague and Richard Allen Griffin. Senior Sixth Circuit Judge Damon J. Keith dissented.

In a sense, the split decision reflected a division of both young and old and Democrat and Republican: Keith, 93, is the longest-serving member of the court. He was nominated by President Jimmy Carter and officially joined the court on Oct. 21, 1977 -- 38 years ago. (He's somewhat of a Civil Rights and legal legend: See his Wikipedia entry.)

McKeague and Griffin were nominated by President George W. Bush and joined the court on the same day -- June 10, 2005. And perhaps it's not a clash of young and old; McKeague is 68, and Griffin, 63.

In their part of the order, they said:

"A stay allows for a more deliberate determination whether this exercise of Executive power, enabled by Congress and explicated by the Supreme Court, is proper under the dictates of federal law. A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing. A stay honors the policy of cooperative federalism that informs the Clean Water Act and must attend the shared responsibility for safeguarding the nation’s waters."

EPA spokesperson Melissa Harrison told The Hill, "The agencies respect the court’s decision to allow for more deliberate consideration of the issues in the case and we look forward to litigating the merits of the Clean Water Rule. The Clean Water Rule was developed by the agencies to respond to an urgent need to improve and simplify the process for identifying waters that are and are not protected under the Clean Water Act, and is based on the latest science and the law.”

LINKS

Home builders happy  |  The Hill  |  Agri-Pulse  | Boehner statement

Beef Magazine  |  Jonathan Adler weighs in from The Volokh Conspiracy:

A particularly interesting aspect of the court’s decision is that there is some question as to whether the court of appeals has jurisdiction to consider a challenge to the rule under the CWA. Specifically, there is a question whether, under the terms of the CWA, challenges to the rule are to be brought in district or circuit courts. Other courts considering WOTUS rule challenges have split on this question. Also interesting is that those parties seeking a stay — those opposing the rule — are also those who are arguing that the challenges should be heard in district courts, and that Sixth Circuit lacks jurisdiction to hear the initial challenge.

Excerpts:

The present circumstances pose a threshold question: What is the status quo? Petitioners ask us to stay enforcement of the Clean Water Rule that went into effect on August 28, 2015. They ask us to restore the status quo as it existed before the Rule went into effect. Respondents’ position is that the status quo is best preserved by leaving the Rule alone. Considering the pervasive nationwide impact of the new Rule on state and federal regulation of the nation’s waters, and the still open question whether, under the Clean Water Act, this litigation is properly pursued in this court or in the district courts, we conclude that petitioners have acted without undue delay and that the status quo at issue is the pre-Rule regime of federal-state collaboration that has been in place for several years, following the Supreme Court’s decision in Rapanos v. United States, 547 U.S. 715 (2006).

The states seeking the stay are Ohio, Michigan, Tennessee, Oklahoma, Texas, Louisiana, Mississippi, Georgia, West Virginia, Alabama, Florida, Indiana, Kansas, Kentucky, North Carolina, South Carolina, Utah and Wisconsin.

The court found the final rule vulnerable to notice-and-comment claims:

"[T]he rulemaking process by which the distance limitations were adopted is facially suspect. Petitioners contend the proposed rule that was published, on which interested persons were invited to comment, did not include any proposed distance limitations in its use of terms like “adjacent waters” and significant nexus.” Consequently, petitioners contend, the Final Rule cannot be considered a “logical outgrowth” of the rule proposed, as required to satisfy the notice-and-comment requirements of the APA, 5 U.S.C. § 553. See Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174 (2007)."

Among the respondent-intervenors are "several environmental conservation groups and several ... states who support the new rule: New York, Connecticut, Hawaii, Massachusetts, Oregon, Vermont, Washington and the District of Columbia."

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