Steve Davies

is editor and publisher of Endangered Species & Wetlands Report, which he started in 1995. Davies began his 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 moved back to the Washington area to cover Congress and federal regulatory agencies for a series of trade newsletters before starting his own publication. Click LinkedIn below for more detail.

DOI releases proposed FY 2015 budget

 Posted by on March 4, 2014
Mar 042014
 

Posted March 7: Audio and transcript of the teleconference with Interior Secretary Sally Jewell

Go here for department’s web site for its proposed FY 2015 budget.

Go here for the entire Budget in Brief document.

Bureau Highlights

Bureau Highlights
Bureau of Land Management
Bureau of Ocean Energy Management
Bureau of Safety and Environmental Enforcement
Office of Surface Mining Reclamation and Enforcement
Bureau of Reclamation
U.S. Geological Survey
Fish and Wildlife Service
National Park Service
Indian Affairs
Departmental Offices
Department-wide Programs

Reaction

Center for Biological Diversity says proposal leaves endangered species high and dry.

“President Obama’s endangered species budget request barely maintains the status quo, leaving most endangered species no closer to hope of recovery. Hundreds of species still need protection under the Endangered Species Act, and sadly this budget request means that many of them, which have been waiting decades for protection while hovering on the brink of extinction, will have to keep on waiting” — CBD endangered species policy director Brett Hartl

“In its proposal the administration requested approximately $18.8 million to list and protect highly imperiled species under the Endangered Species Act and another $4 million to designate critical habitat for listed species — a small increase from last year, but roughly the same amount of funding received in 2010, prior to three years of cuts under budget sequestration. The Fish and Wildlife Service’s overall budget for the endangered species program remained approximately the same at around $170 million, less than the cost of a single F-35C fighter jet.” — press release

Feb 282014
 

EPA has begun a 404(c) review process of the proposed Pebble Mine under the Clean Water Act, and until it’s completed,  the Army Corps of Engineers “cannot issue a permit for fill in wetlands or streams associated with mining the Pebble deposit,” EPA said in a press release posted today.

“This is a unique mine in a very unique place,” EPA Administrator Gina McCarthy said in a teleconference today (actually, taking place as of this writing).

“The agency is taking this step because it has reason to believe that porphyry copper mining ofthe scale contemplated at the Pebble deposit would result in significant and unacceptable adverse effects to important fishery areas in the Watershed,” EPA Regional Administrator Dennis J. McLerran said in a letter to the Corps.

McCarthy said EPA rarely invokes 404(c), “but the Bristol  Bay fishery is an extraordinary resource.”

Editor’s note: I’ll post audio of the teleconference provided I get a decent recording.

Here’s the press release:

EPA moves to protect Bristol Bay fishery from Pebble Mine

Release Date: 02/28/2014
Contact Information: Hanady Kader, EPA Public Affairs, 206-553-0454, kader.hanady@epa.gov

Agency action begins process to prevent damage to world’s largest sockeye salmon fishery

(Washington, D.C.—Feb. 28, 2014) The U.S. Environmental Protection Agency is initiating a process under the Clean Water Act to identify appropriate options to protect the world’s largest sockeye salmon fishery in Bristol Bay, Alaska from the potentially destructive impacts of the proposed Pebble Mine. The Pebble Mine has the potential to be one of the largest open pit copper mines ever developed and could threaten a salmon resource rare in its quality and productivity. During this process, the U.S. Army Corps of Engineers cannot approve a permit for the mine. 

This action, requested by EPA Administrator Gina McCarthy, reflects the unique nature of the Bristol Bay watershed as one of the world’s last prolific wild salmon resources and the threat posed by the Pebble deposit, a mine unprecedented in scope and scale. It does not reflect an EPA policy change in mine permitting. 

“Extensive scientific study has given us ample reason to believe that the Pebble Mine would likely have significant and irreversible negative impacts on the Bristol Bay watershed and its abundant salmon fisheries,” said EPA Administrator Gina McCarthy. “It’s why EPA is taking this step forward in our effort to ensure protection for the world’s most productive salmon fishery from the risks it faces from what could be one of the largest open pit mines on earth. This process is not something the Agency does very often, but Bristol Bay is an extraordinary and unique resource.”

The EPA is basing its action on available information, including data collected as a part of the agency’s Bristol Bay ecological risk assessment and mine plans submitted to the Securities and Exchange Commission. Today, Dennis McLerran, EPA Regional Administrator for EPA Region 10, sent letters to the U.S. Army Corps of Engineers, the State of Alaska, and the Pebble Partnership initiating action under EPA’s Clean Water Act Section 404(c) authorities.

“Bristol Bay is an extraordinary natural resource, home to some of the most abundant salmon producing rivers in the world. The area provides millions of dollars in jobs and food resources for Alaska Native Villages and commercial fishermen,” McLerran said. “The science EPA reviewed paints a clear picture: Large-scale copper mining of the Pebble deposit would likely result in significant and irreversible harm to the salmon and the people and industries that rely on them.”

Today’s action follows the January 2014 release of EPA’s “Assessment of Potential Mining Impacts on Salmon Ecosystems of Bristol Bay, Alaska,” a study that documents the significant ecological resources of the region and the potentially destructive impacts to salmon and other fish from potential large-scale copper mining of the Pebble Deposit. The assessment indicates that the proposed Pebble Mine would likely cause irreversible destruction of streams that support salmon and other important fish species, as well as extensive areas of wetlands, ponds and lakes. 

In 2010, several Bristol Bay Alaska Native tribes requested that EPA take action under Clean Water Act Section 404(c) to protect the Bristol Bay watershed and salmon resources from development of the proposed Pebble Mine, a venture backed by Northern Dynasty Minerals. The Bristol Bay watershed is home to 31 Alaska Native Villages. Residents of the area depend on salmon as a major food resource and for their economic livelihood, with nearly all residents participating in subsistence fishing. 

Bristol Bay produces nearly 50 percent of the world’s wild sockeye salmon with runs averaging 37.5 million fish each year. The salmon runs are highly productive due in large part to the exceptional water quality in streams and wetlands, which provide valuable salmon habitat. 

The Bristol Bay ecosystem generates hundreds of millions of dollars in economic activity and provides employment for over 14,000 full and part-time workers. The region supports all five species of Pacific salmon found in North America: sockeye, coho, Chinook, chum, and pink. In addition, it is home to more than 20 other fish species, 190 bird species, and more than 40 terrestrial mammal species, including bears, moose, and caribou. 

Based on information provided by The Pebble Partnership and Northern Dynasty Minerals, mining the Pebble deposit may involve excavation of a pit up to one mile deep and over 2.5 miles wide — the largest open pit ever constructed in North America. Disposal of mining waste may require construction of three or more massive earthen tailings dams as high as 650 feet. The Pebble deposit is located at the headwaters of Nushagak and Kvichak rivers, which produce about half of the sockeye salmon in Bristol Bay. 

The objective of the Clean Water Act is to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. The Act emphasizes protecting uses of the nation’s waterways, including fishing. 

The Clean Water Act generally requires a permit under Section 404 from the U.S. Army Corps of Engineers before any person places dredge or fill material into wetlands, lakes and streams. Mining operations typically involve such activities and must obtain Clean Water Act Section 404 permits. Section 404 directs EPA to develop the environmental criteria the Army Corps uses to make permit decisions. It also authorizes EPA to prohibit or restrict fill activities if EPA determines such actions would have unacceptable adverse effects on fishery areas.

The steps in the Clean Water Act Section 404(c) review process are:

  • Step 1 – Consultation period with U.S. Army Corps of Engineers and owners of the site, initiated today.
  • Step 2 – Publication of Proposed Determination, including proposed prohibitions or restrictions on mining the Pebble deposit, in Federal Register for public comment and one or more public hearings.
  • Step 3 – Review of public comments and development of Recommended Determination by EPA Regional Administrator to Assistant Administrator for Water at EPA Headquarters in Washington, DC.
  • Step 4 – Second consultation period with the Army Corps and site owners and development of Final Determination by Assistant Administrator for Water, including any final prohibitions or restrictions on mining the Pebble deposit.

Based on input EPA receives during any one of these steps, the agency could decide that further review under Section 404(c) is not necessary.

Now that the 404(c) process has been initiated, the Army Corps cannot issue a permit for fill in wetlands or streams associated with mining the Pebble deposit until EPA completes the 404(c) review process. 

EPA has received over 850,000 requests from citizens, tribes, Alaska Native corporations, commercial and sport fisherman, jewelry companies, seafood processors, restaurant owners, chefs, conservation organizations, members of the faith community, sport recreation business owners, elected officials and others asking EPA to take action to protect Bristol Bay.

For information on the Clean Water Act Section 404(c) visit:http://water.epa.gov/lawsregs/guidance/cwa/dredgdis/upload/404c.pdf (PDF, 2 pp, 600K)

For information on the EPA Bristol Bay Assessment, visit: http://www2.epa.gov/bristolbay

Follow @EPAnorthwest on Twitter! https://twitter.com/EPAnorthwest

 

Feb 072014
 

The Fish and Wildlife Service plans to reopen the comment period on its proposal to delist the gray wolf throughout the lower 48 states, following release today of a review that says FWS didn’t use the best scientific information available.

The “key conclusions” from the report by the National Center for Ecological Analysis and Synthesis:

  • There was unanimity among the panelists that, although there was much good scientific work in the Proposed Rule, the rule is heavily dependent upon the analysis of Chambers et al. 
  • Some reviewers also noted a lack of appropriate use of the literature on species level taxonomy 
  • There was unanimity among the panelists that Chambers et al was not universally accepted and
  • that the issue was ‘not settled’. The issues raised by Chambers et al could be definitively answered relatively soon.
  • There was unanimity among the panel that the rule does not currently represent the ‘best available science’
  • Neither the panel as a whole, not any of its members in their individual reviews, made any management or policy recommendations. 

The comment period will be reopened until midnight, March 27. (FWS press release)

Jan 162014
 

The two cranes that were shot (Photo by Ted Thousand, International Crane Foundation)

A reward of $7,200 has been offered for information on the November shooting of a whooping crane in Kentucky.

The crane was rescued but had to be euthanized. Its mate was found dead five miles away Dec. 13.

Investigators believe the incidents are related.

According to the Fish and Wildlife Service news release:

“On November 25, 2013, the International Crane Foundation received a report from a Hopkins County [Kentucky] resident of a whooping crane that appeared to be injured. Initially, the wounded crane was still able to fly, but was extremely weakened, and was rescued on November 27, 2013. Among other injuries, the crane’s upper leg was shattered. Attempts to save the bird were unsuccessful, and the crane identified as 5-09 had to be euthanized.”

The whooping crane is the most endangered crane species in the world. Fewer than 500 of them exist in the United States.

“ICF is deeply troubled by the deaths of these whooping cranes. In this imperiled species, every crane counts toward recovery,” ICF President Dr. Richard Beilfuss said. “ICF’s education and outreach… efforts along the flyway are focused on the responsible stewardship of whooping cranes, and our commitment to the future of these magnificent birds remains as strong as ever.”

FWS press release (1/16/14) and ICF press release

Louisville Courier-Journal blog entry by James Bruggers

Red wolf death investigated

FWS and the North Carolina Wildlife Resources Commission are asking for help in their investigation of a suspected shooting of a protected red wolf.

The radio-collared wolf  was found with an apparent gunshot wound on Tuesday, Jan. 7, 2014, southwest of Columbia, in Tyrrell County, North Carolina.

“This is the first red wolf death of 2014,” FWS said in a press release. “A total of 14 wild red wolves were known to have died in 2013 including three struck and killed by vehicles, one death as a result of non-management related actions, and nine confirmed or suspected gunshot deaths.  The cause of the remaining wolf’s death is currently undetermined.”

FWS red wolf recovery program

Sobeck named new AA at NOAA

 Posted by on January 16, 2014
Jan 162014
 

Eileen Sobeck, who has already served in high-level positions at the Justice and Interior departments, is returning to the National Oceanic and Atmospheric Administration.

Sobeck will become Assistant Administrator, overseeing operations of the National Marine Fisheries Service, beginning Jan. 27.

From the press release:

Early in her career, Sobeck worked in the NOAA Office of General Counsel from 1979-1984. She then served at the U.S. Department of Justice, Environment and Natural Resources Division from 1984-2009.

Sobeck currently serves as acting assistant secretary of the Department of Interior’s Office of Insular Affairs. She has served as deputy assistant secretary for Fish and Wildlife and Parks at the Department of the Interior since 2009.

Sobeck has the distinction of having a sea slug named after her: Hallaxa hileenae is a species of Pacific nudibranch.

Sobeck

and her eponymous sea slug

 

Jan 152014
 

Large-scale mining in Alaska’s Bristol Bay “poses risks to salmon and the tribal communities that have depended on them for thousands of years,” EPA Regional Administrator Dennis McLerran said in a news release today, summarizing results of an ecological assessment on the possible impacts of mining in the watershed.

EPA “launched the study in response to petitions from federally recognized tribes and others who wrote to EPA with concerns about how future large-scale mining could impact Bristol Bay fisheries,” the agency said.

“The watershed supports the largest sockeye salmon fishery in the world, with approximately 46 percent of the average global abundance of wild sockeye salmon,” the report says.

Audio of EPA teleconference and the transcript

Google result for “Bristol Bay Pebble Mine”

Jan 142014
 

A $1 trillion House-Senate spending bill made public yesterday includes a provision that would prohibit the Army Corps of Engineers from using any of its funding to change the definition of “fill material” under the Clean Water Act.

Although a rewrite of the 2002 rule does not appear to be in the works, the provision was nonetheless sought by the mining industry, which likes the fact that mining waste can be dealt with under CWA Section 404. Hal Rogers (R-Ky.), chairman of the House Appropriations Committee, said a rewrite of the regulation could harm U.S. industries.

Here’s a press release from Earthjustice, including a statement from legislative director Chris Espinosa.

“More than 22 percent of all the rivers and streams in Southern West Virginia are impaired by mountaintop removal mining pollution and this policy rider will lock in the same destructive practice of using waters as waste dumps,” Espinosa said.

The bill is expected to pass both chambers soon after they approve yet another continuing resolution to fund the government. The latest continuing resolution expires tomorrow — Jan. 15.

Links

Louisville Courier-Journal blog
CRS report (“Controversies over Redefining ‘Fill Material’ Under the Clean Water Act,” Aug. 21, 2013)

Summaries of omnibus bill sections, from House Appropriations web page

Nixon’s signing statement for the ESA

 Posted by on December 30, 2013
Dec 302013
 

Two days late, but I hope not more than a few cents short, I herewith present the presidential signing statement for the Endangered Species Act of 1973.

Photo linked from Washington Post

It seems remarkable that Nixon — the Nixon of CREEP, Watergate, Vietnam and Cambodia — is the same guy who signed the ESA and the Clean Air Act. How many Republican lawmakers today would call threatened wildlife “irreplaceable”? Then again, some congressmen who voted in favor of the ESA 40 years ago claimed in later years to have been not fully cognizant of the law’s far-reaching impact. They said they didn’t realize the ESA was designed to protect all species — n0t just the so-called “charismatic megafauna,” your grizzly bears, wolves, bald eagles and so on. This has led to many congressional hearings convened expressly to pillory species like the Delhi Sands flower-loving fly. The archetype for that line of reasoning (generally, if it’s small and/or a bug, it don’t matter) is the snail darter, subject of the seminal TVA v. Hill Supreme Court decision. Apropos of that, Prof. Zygmunt Plater of Boston College School of Law has authored a book about the case, in which he represented the plaintiffs.

PRESIDENTIAL STATEMENT ON SIGNING S. 1983 INTO LAW

ENDANGERED SPECIES ACT OF 1973

STATEMENT BY THE PRESIDENT UPON SIGNING THE BILL INTO LAW;
DECEMBER 28, 1973

I have today signed S. 1983, the Endangered Species Act of 1973.  At a time when Americans are more concerned than ever with conserving our natural resources, this legislation provides the Federal Government with needed authority to protect an irreplaceable part of our national heritage–threatened wildlife.

This important measure grants the Government both the authority to make early identification of endangered species and the means to act quickly and thoroughly to save them from extinction. It also puts into effect the Convention on International Trade in Endangered Species of Wild Fauna and Flora signed in Washington on March 3, 1973.

Nothing is more priceless and more worthy of preservation than the rich array of animal life with which our country has been blessed. It is a many-faceted treasure, of value to scholars, scientists, and nature lovers alike, and it forms a vital part of the heritage we all share as Americans. I congratulate the 93d Congress for taking this important step toward protecting a heritage which we hold in trust to countless future generations of our fellow citizens. Their lives will be richer, and America will be more beautiful in the years ahead, thanks to the measure that I have the pleasure of signing into law today.

NOTE: The Statement was released at San Clemente, Calif.

As enacted, the bill (S. 1983) is Public Law 93-205, approved December 28, 1973.

 

Dec 102013
 

The federal government owes the state of Arkansas about $5.8 million, the Federal Circuit Court of Appeals ruled Dec. 3, affirming a lower court determination after a remand from the Supreme Court (Arkansas Game & Fish Commission v. U.S., 09-5121).

The high court had held that the Army Corps of Engineers’ flooding of a wildlife management area in Arkansas from 1993 through 2000 was a temporary taking and required compensation (Ark. Game & Fish Comm’n v. United States, 133 S. Ct. 511, 2012).

The game and fish commission had sought an award covering tree damage on 6,900 acres, but the federal circuit went along with the Claims Court, which limited the area to the 349 acres where the damage was classified as “severe.” (Damage on the remaining 6,641 acres was “heavy” or “moderate.”)

More coverage: Law360 (Lexis/Nexis)

Excerpts from Fed. Circuit opinion:

The Supreme Court reversed this court, holding that government-induced flooding can constitute a taking even if it is temporary in duration. Ark. Game & Fish Comm’n v. United States, 133 S. Ct. 511 (2012). Unlike permanent physical takings, the Court explained, temporary invasions “are subject to a more complex balancing process to determine whether they are a taking.” Id. at 521, quoting Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 n.12 (1982).

Perhaps the most telling evidence in support of the trial court’s finding of causation came from the Corps of Engineers itself. After conducting a site visit in early 2001 and determining that the Management Area would flood when the water level at the Corning gauge reached six feet, the Corps admitted that the deviations had “clear potential for damage to bottomland hardwoods” in the Management Area. In response to the Commission’s complaints that the flooding was destroying the hardwood forest, a Corps representative stated that the Commission “has objected in the past because they contend that we increase the flood duration of hardwoods and kill more trees this way, particularly during the growing season. They now have a study that shows this and we acknowledge the validity of their concerns.” The Corps’ district engineer explained that the deviations were ended because they “would unacceptably extend the duration of water inundation on bottomland hardwoods.” And at public meetings during that period, the Corps admitted that, based on its site visit in March 2001, the deviations were “negatively impacting [the Management Area] during [the] growing season.” In sum, the evidence supports the trial court’s findings that the deviations caused a substantial increase in the periods of growing-season flooding in the Management Area and that the flooding caused widespread damage to the trees there. Those findings in turn support the trial court’s legal conclusion that the deviations caused an invasion, in the form of a temporary flowage easement, of the property rights enjoyed by the Commission and its predecessors since before the construction of the Clearwater Dam and until 1993.2

“While it is true that each of the Corps-authorized deviations was designated as temporary, the deviations were renewed each year between 1993 and 2000. The deviations were adopted in response to requests from agricultural interests, which sought to have the pattern of water releases from Clearwater Lake modified to increase the length of the harvest season. The changes made in the release patterns between 1993 and 2000 had the intended effect of benefiting farmers in the area, but as the trial court found, the change also resulted in a substantial increase in the number of days that the Management Area was flooded during each growing season during those years.

“That period of flooding imposed a severe burden on the Commission’s property. According to the trial court’s findings, ‘the government’s superinduced flows so profoundly disrupted certain regions of the Management Area that the Commission could no longer use those regions for their intended purposes, i.e., providing habitat for wildlife and timber for harvest.’ 87 Fed. Cl. at 620.

“The government’s claim that each of the deviations that the Corps of Engineers implemented during the 1990s was insufficient by itself to effect a taking ignores that while the prescribed water levels varied slightly from year to year, the deviations were directed to a single purpose-to accommodate agricultural interests-and had a consistent overall impact on the Management Area. Thus, the government-authorized flooding of the Management Area is properly viewed as having lasted for seven years, and the question whether the flooding constituted a compensable taking must be assessed in light of an invasion of that duration.”

From decision by Court of Federal Claims Judge Charles F. Lettow (7/1/09):

“[T]he Commission has not established to a reasonable certainty the need for regeneration damages for the remaining 6,641 acres. Undoubtedly parts of that acreage contain clusters of invasive wetland species, some of which may be sizeable. Nonetheless, there is no basis in the record to differentiate the areas that would require regenerative work from others which retain some oak stands of significance and which may well regenerate themselves, albeit over the course of many years. Thus, the Commission can only recover regeneration costs for the 349 acres that were classified as severe by Mr. Watts and which the court in a reasonable way confirmed by the site visit.”

Link

2006 decision from Lettow

P.I. request to halt pipeline turned down

A federal judge has denied a preliminary injunction request to halt construction of the Flanagan South (FS) Pipeline, expected to transport oil from Illinois to Oklahoma (Sierra Club v. U.S. Army Corps of Engineers, 13-1239 KBJ, D.D.C.).

The lawsuit says the Corps and other federal agencies did not comply with the Clean Water Act, National Environmental Policy Act and Administrative Procedure Act in approving the 589-mile project. But U.S. District Judge Ketanji Brown Jackson said the plaintiffs proceeded on “the mistaken assumption that the [Corps'] verifications are the equivalent of a permit insofar as they effectively authorized the FS Pipeline to proceed.”

Said Jackson: “[T]he law quite clearly distinguishes between ‘verifications’ and ‘permits’ in the CWA context, compare 33 C. F. R. Part 325 (establishing procedures for individual permits), with 33 C. F. R. Part 330 (detailing procedures for verification under general permitting system), and the entire point of the general permitting system is to avoid the burden of having to conduct an environmental review under NEPA when a verification–as distinguished from an individual discharge permit–is sought. As previously and extensively explained, under the general permitting system, the Corps conducts an extensive environmental review and provides the public with notice and an opportunity to comment regarding categories of construction activity that the Corps seeks to designate as having minimal impact on waterways within specified geographical regions. See 33 C. F. R. § 330.1(b). The purpose of the statute that authorizes general permits such as the nationwide permit at issue here is to allow the Corps to designate certain construction projects as eligible for CWA discharge permits ‘with little, if any, delay or paperwork’ because they fit within these pre-cleared categories of activities.

“Consequently, it makes little sense that, notwithstanding the FS Pipeline project’s eligibility for verification under NWP 12, the Corps nevertheless had to conduct a full environmental review under NEPA, as plaintiffs maintain. In other words, the requisite comprehensive environmental review is done upfront under the general permitting system precisely to avoid a NEPA environmental review regarding certain projects that fit into categories of activity that have been predetermined to have minimal environmental impact. Therefore, once the Corps’s district engineers verified that the discharges resulting from the FS Pipeline satisfied NWP 12, no additional environmental review was required.”

The judge had this to say about the possibility of an oil spill:

“Finally, a few words about plaintiffs’ suggestion that operation of the FS Pipeline risks a devastating oil spill that would be damaging to nearby communities, and that that harm is sufficient to warrant an injunction. The court acknowledges and accepts that some of the people who live in areas near the pipeline project are sincerely worried about the harm that an oil spill might cause. As genuine as these concerns may be, plaintiffs have not shown that a damaging oil spill is likely to occur, and it is bedrock law that injunctions ‘will not issue to prevent injuries neither extant nor presently threatened, but only merely feared.’ Comm. in Solidarity With People of El Salvador (CISPES) v. Sessions, 929 F. 2d 742, 745-46 (D. C. Cir. 1991) (internal quotation marks and citations omitted). In other words, the harms that an oil spill might potentially someday cause–however fearsome–are not certain, and therefore are not sufficient to satisfy the ‘irreparable harm’ standard.

Background from the opinion

“At least 560 miles of the 589 miles of pipe that will comprise the FS Pipeline will traverse land that is entirely privately owned. According to Enbridge, the company has identified 2,368 tracts owned by 1,720 separate landowners along the course of the pipeline and has secured 96% of the land rights along the entire route. Thus, with respect to the vast majority of the pipeline, no federal permission or authorization is required for construction. However, it is undisputed that the FS Pipeline will at times cross federal lands and waterways at various points along its planned route through the heart of the country. Three types of federal crossings will occur and are at issue in this litigation: (1) 13.68 total miles of “waters of the United States” (as defined in the CWA and its implementing regulations) that are primarily located on private land but are subject to the jurisdiction of the Army Corps of Engineers (the “Corps”) under the CWA; (2) 12.3 miles of Native American land that is subject to the jurisdiction of the Bureau of Indian Affairs (“BIA”); and (3) 1.3 miles of land that the federal government owns and that is also under the Corps’s jurisdiction. To construct and operate the portion of the pipeline that traverses these 27.28 total miles, Enbridge must have federal approval, and a separate statutory and regulatory scheme, discussed below, governs each type of land or water crossing.”

No, you take it: Ex-Im NEPA case to be heard in D.C.

The Northern District of California (District Judge William Alsup, specifically) has transferred a NEPA action against the Export-Import Bank to the U.S. District Court in Washington, D.C. The plaintiffs allege that the Ex-Im Bank should have prepared an EIS or environmental analysis before approving a $90 million commercial loan guarantee for Xcoal Energy & Resources LLC, “a coal mining, transport and export company” (Chesapeake Climate Action Network v. Export-Import Bank of the United States, 13-03532 WHA, N.D. Cal.).

In 2010, Xcoal, headquartered in Latrobe, Pa., exported about 11 million tons of metallurgical coal through Baltimore and Hampton Roads, “making it the largest coal exporter in the United States that year,” Alsup wrote in his Nov. 15 order.

Plaintiffs, including the Chesapeake Climate Action Network and Friends of the Earth, “assert[] that as a result of the loan guarantee, the Export-Import Bank ‘enables Xcoal to broker an estimated $1 billion in sales of coal for export from mines in Appalachia; transport that coal by rail to port facilities in [Maryland and Virginia]; . . . store . . . that coal in port; and then transport that coal by ship to clients in China, Japan, South Korea and elsewhere.” Each of these activities allegedly causes “significant adverse effects on human health and the environment.” In particular, the complaint alleges that coal dust and diesel exhaust emitted by the mining and transportation of coal contributes to cardiopulmonary problems in mining communities, along rail lines, and around export terminals. Coal mining also allegedly contaminates its surrounding environment, harms local wildlife populations, and produces large volumes of contaminated wastewater.”

Alsup said that the convenience of the parties, though not a significant factor in his analysis, nonetheless favored transfer, as most of the parties’ counsel are located in  and around Washington, D.C.  In addition, “[w]ith regard to local interest, the District of Columbia has a stronger local interest in this action than [the Northern District of California] because the administrative process occurred in the District of Columbia and the federal defendants reside there.”

Links

Xcoal news
August, 2012
Top Off Operation (Canso, Nova Scotia, Canada)  Download Video
June, 2011
“Xcoal Energy & Resources sees metallurgical coal shipment growth this year” – Platt’s Coal Trader – June 29, 2011… Read More
February, 2011
Xcoal’s “top off” operation was recently recognized by World Coal magazine in its Annual Review of major coal projects. World Review 2011 - World Coal compiles its annual review of some of the major coal-related projects, in various stages of completion, across the globe.
August, 2010
The “top-off” operation was also showcased in the August, 2010 edition of CSL World magazine. “The concept was reinvigorated due to our increased business in Asia,” explained Thrasher… Read More

 

Oct 012013
 

The night before the Fish and Wildlife Service had to shut down because of governmental intransigence, a crowd of about 200 gathered in the Sidney Yates Auditorium in Washington, D.C., to offer public comment on the service’s proposal to delist the gray wolf throughout its range in the U.S.

The hearing’s other subject was a proposal to define the Mexican wolf as a valid subspecies and list it as endangered, but that topic did not get much attention. Instead, the vast majority of speakers criticized the delisting  proposal as scientifically unsound — an example of “political science,” not hard science, as at least two speakers put it. (The Mexican wolf proposal and gray wolf delisting proposal are included in the same Federal Register document, linked to above.)

In some cases, individuals paid their own way to Washington, D.C., and took a day off from work in order to offer two minutes of emotional testimony against the FWS plan.

2013-09-30 20.27.59

Mike Jimenez, Wyoming Gray Wolf Project Leader

Safari Club International may have been the only organization backing the FWS, a somewhat unusual position for the service to be in. But if FWS officials Gary Frazer and Mike Jimenez felt uncomfortable, they didn’t show it, as the large number of speakers stretched the hearing well past its scheduled finish of 8:30 p.m.

It kicked off at 6 p.m. with a statement by FWS Director Dan Ashe, who said, “No animal engenders a more polarizing emotion among Americans than the wolf.” Nevertheless, he said “regardless of our position … the recovery of this iconic species stands as one of the greatest conservation success stories in history,” as well as “a poster child for the power and protections the Endangered Species Act affords our most endangered species.”

The crowd became restless as Ashe recounted standing with Wyoming’s governor to announce that state would be a “responsible steward” of wolves following delisting.

“And you believed him, Mr. Ashe?” came a voice from the crowd.

“I do believe him,” Ashe replied, and continued over persistent murmurs. He asked those in attendance to be involved not just in the wolf debate, but in trying to keep the service’s doors open (a fate that could not be avoided).

“I’ve spent the better part of a day trying to figure out how to shut down an organization of 9,500 people,” he said, adding that 7,000 employees of the Fish and Wildlife Service were facing the prospect of furlough.

He did get a hand at the end, if not an ovation, leaving Frazer, the assistant director for endangered species, and Jimenez, the point man for the proposal, at a table to listen to the comments.

More video and audio recordings will be posted today (Oct. 1).

More

http://www.gpo.gov/fdsys/pkg/FR-2000-07-13/pdf/00-17621.pdf

Extension of comment period until Oct. 28

Mexican wolf (June 13, 2013)