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.

Jun 252015
 

If you subscribed to ESWR, you would have gotten this (and many more updates) in your inbox. Updates are available to paying subscribers only.

http://www.eswr.com

June 25, 2015

SANTA ANA SUCKER CRITICAL HABITAT SURVIVES APPEAL TO NINTH CIRCUIT

In the interests of getting this out as quickly as possible, I am not writing this up right now, but simply providing the summary prepared by the court staff, which is not part of the opinion (link goes to PDF)

SUMMARY of Bear Valley Mutual Water Co. v. Jewell, 12-57297

The panel affirmed the district court’s summary judgment in favor of federal defendants in an action brought by plaintiff municipalities and water districts challenging a 2010 Final Rule designating areas for the threatened Santa Ana sucker as critical habitat.

In 2000, the United States Fish and Wildlife Service designated the sucker as a “threatened” species pursuant to the Endangered Species Act. In 1999, a coalition of parties developed the Western Riverside County Multiple Species Habitat Conservation Plan, a regional, multi-jurisdictional plan that encompassed nearly 1.26 million acres and provided participating agencies with a 75-year permit for the incidental taking of 146 protected species, including the sucker, in exchange for implementing conservation measures; the Service formally approved the Conservation Plan in 2004. In the 2010 Final Rule, the Service designated additional critical habitat within the Conservation Plan.

The district court held that the Service satisfied its statutory obligation to cooperate with state agencies, that the critical habitat designation was not arbitrary or capricious, and that any claims under the National Environmental Policy Act were barred by this court’s decision in Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), which held that the statute does not apply to critical habitat designations.

The panel held that section 2(c)(2) of the Endangered Species Act did not create an independent cause of action, and rejected appellants’ argument that the Service violated the provision by failing to cooperate with State and local agencies on water resource issues.

The panel held that the critical habitat designation of land covered by the Conservation Plan was proper. Specifically, the panel affirmed the district court’s holding that the Service’s decision not to exclude land covered by the Conservation Plan was not subject to review. The panel also held that the Service’s designation of lands included in the Conservation Plan was not arbitrary or capricious. The panel further held that the designation of habitat in areas covered by the Conservation Plan did not violate the Services’s “No Surprises Rule,” which provides that the Service may not require permittees to pay for additional conservation and mitigation measures absent unforeseen circumstances. The panel also held that appellants had adequate opportunity to comment on the Service’s scientific citations.

The panel held that the Service’s designation of critical habitat in unoccupied areas was proper. The panel rejected appellants’ claim that the Service violated the National Environmental Policy Act by failing to prepare an environmental impact statement in connection with its 2010 Final Rule because the Act does not apply to the designation of a critical habitat.

Jun 232015
 

A coalition of 10 environmental groups has asked Interior Secretary Sally Jewell to rescind the department's conditional approval of a plan by Shell to conduct exploratory drilling in the Chukchi Sea.

In a letter sent to Jewell today, the groups assert that Shell's current plans conflict with existing regulations governing the incidental take of Pacific walrus.

The Fish and Wildlife Service issued a rule about two years ago imposing a requirement of “a minimum spacing” of 15 miles between drill rigs “[t]o avoid significant synergistic or cumulative effects from multiple oil and gas exploration activities on foraging or migrating walruses,” the groups noted.

But Shell's Exploration Plan "is premised upon simultaneous drilling operations using the Polar Pioneer and the Noble Discoverer at specifically identified drill sites, none of which is 15 miles apart from any other," the groups said.

Earthjustice sent the letter on behalf of the Alaska Wilderness League, Audubon Alaska, Center for Biological Diversity, Greenpeace, League of Conservation Voters, Natural Resources Defense Council, Northern Alaska Environmental Center, Ocean Conservancy, Oceana, and Sierra Club.

Oil and Gas Exploration in the Chukchi Sea (FWS Alaska Region)

Final Incidental Take Regulations for Polar Bears and Pacific Walrus for the Chukchi Sea issued June 12, 2013

Jun 222015
 

The U.S. Supreme Court today declined to grant a petition seeking review of a Fifth Circuit decision that found the Texas Commission on Environmental Quality could not be held liable for the deaths of 23 whooping cranes in 2008-09 (The Aransas Project v. Shaw, 14-1138)

The Aransas Project (TAP) had petitioned the high court after the Fifth Circuit Court of Appeals reversed a district court decision that found in favor of TAP.

Link to previous ESWR coverage (July 1, 2014).

 

Jun 222015
 

The Forest Service did "not provide the public adequate access to information about the impact of snowmobiles on big game wildlife and habitat" when it approved a plan to allow snowmobile use on more than 2 million acres of the Beaverhead-Deer Lodge National Forest in Montana, the Ninth Circuit found in a decision issued today (WildEarth Guardians v. U.S. Forest Service, 12-35434).

In addition, the service "must provide a more granular minimization analysis to fulfill the objectives of Executive Order 11644, which the Travel Management Rule was designed to implement," the court said in its decision, which is posted below. The court did affirm Senior U.S. District Judge Donald Molloy on a couple of matters, most significantly that the Forest Service properly analyzed the conflicts between snowmobiles and other recreational uses.

Here's the court's conclusion:

We affirm the district court’s ruling that the EIS sufficiently analyzed the conflicts between snowmobiles and other recreational uses in the Revised Forest Plan. Further, we agree that WildEarth’s challenge to the Subpart C exemption in the [2005 Travel Management Rule] is not ripe for review. We reverse the district court’s NEPA ruling, in part, because the Forest Service did not properly disclose the information underlying its analysis of snowmobile impacts on big game wildlife in the EIS. We also reverse the district court’s ruling that the Forest Service adequately applied the minimization criteria in the TMR. We remand for further proceedings consistent with this opinion. The parties shall bear their own costs on appeal.

The Circuit Judges on the opinion are Alex Kozinski, Richard A. Paez and Marsha S. Berzon. Paez is the author.

Jun 222015
 

Full encyclical here  

III. LOSS OF BIODIVERSITY

32. The earth’s resources are also being plundered because of short-sighted approaches to the economy, commerce and production. The loss of forests and woodlands entails the loss of species which may constitute extremely important resources in the future, not only for food but also for curing disease and other uses. Different species contain genes which could be key resources in years ahead for meeting human needs and regulating environmental problems.

33. It is not enough, however, to think of different species merely as potential “resources” to be exploited, while overlooking the fact that they have value in themselves. Each year sees the disappearance of thousands of plant and animal species which we will never know, which our children will never see, because they have been lost for ever. The great majority become extinct for reasons related to human activity. Because of us, thousands of species will no longer give glory to God by their very existence, nor convey their message to us. We have no such right.

34. It may well disturb us to learn of the extinction of mammals or birds, since they are more visible. But the good functioning of ecosystems also requires fungi, algae, worms, insects, reptiles and an innumerable variety of microorganisms. Some less numerous species, although generally unseen, nonetheless play a critical role in maintaining the equilibrium of a particular place. Human beings must intervene when a geosystem reaches a critical state. But nowadays, such intervention in nature has become more and more frequent. As a consequence, serious problems arise, leading to further interventions; human activity becomes ubiquitous, with all the risks which this entails. Often a vicious circle results, as human intervention to resolve a problem further aggravates the situation. For example, many birds and insects which disappear due to synthetic agrotoxins are helpful for agriculture: their disappearance will have to be compensated for by yet other techniques which may well prove harmful. We must be grateful for the praiseworthy efforts being made by scientists and engineers dedicated to finding solutions to man-made problems. But a sober look at our world shows that the degree of human intervention, often in the service of business interests and consumerism, is actually making our earth less rich and beautiful, ever more limited and grey, even as technological advances and consumer goods continue to abound limitlessly. We seem to think that we can substitute an irreplaceable and irretrievable beauty with something which we have created ourselves.

35. In assessing the environmental impact of any project, concern is usually shown for its effects on soil, water and air, yet few careful studies are made of its impact on biodiversity, as if the loss of species or animals and plant groups were of little importance. Highways, new plantations, the fencing-off of certain areas, the damming of water sources, and similar developments, crowd out natural habitats and, at times, break them up in such a way that animal populations can no longer migrate or roam freely. As a result, some species face extinction. Alternatives exist which at least lessen the impact of these projects, like the creation of biological corridors, but few countries demonstrate such concern and foresight. Frequently, when certain species are exploited commercially, little attention is paid to studying their reproductive patterns in order to prevent their depletion and the consequent imbalance of the ecosystem.

36. Caring for ecosystems demands far-sightedness, since no one looking for quick and easy profit is truly interested in their preservation. But the cost of the damage caused by such selfish lack of concern is much greater than the economic benefits to be obtained. Where certain species are destroyed or seriously harmed, the values involved are incalculable. We can be silent witnesses to terrible injustices if we think that we can obtain significant benefits by making the rest of humanity, present and future, pay the extremely high costs of environmental deterioration.

37. Some countries have made significant progress in establishing sanctuaries on land and in the oceans where any human intervention is prohibited which might modify their features or alter their original structures. In the protection of biodiversity, specialists insist on the need for particular attention to be shown to areas richer both in the number of species and in endemic, rare or less protected species. Certain places need greater protection because of their immense importance for the global ecosystem, or because they represent important water reserves and thus safeguard other forms of life.

38. Let us mention, for example, those richly biodiverse lungs of our planet which are the Amazon and the Congo basins, or the great aquifers and glaciers. We know how important these are for the entire earth and for the future of humanity. The ecosystems of tropical forests possess an enormously complex biodiversity which is almost impossible to appreciate fully, yet when these forests are burned down or levelled for purposes of cultivation, within the space of a few years countless species are lost and the areas frequently become arid wastelands. A delicate balance has to be maintained when speaking about these places, for we cannot overlook the huge global economic interests which, under the guise of protecting them, can undermine the sovereignty of individual nations. In fact, there are “proposals to internationalize the Amazon, which only serve the economic interests of transnational corporations”.[24] We cannot fail to praise the commitment of international agencies and civil society organizations which draw public attention to these issues and offer critical cooperation, employing legitimate means of pressure, to ensure that each government carries out its proper and inalienable responsibility to preserve its country’s environment and natural resources, without capitulating to spurious local or international interests.

39. The replacement of virgin forest with plantations of trees, usually monocultures, is rarely adequately analyzed. Yet this can seriously compromise a biodiversity which the new species being introduced does not accommodate. Similarly, wetlands converted into cultivated land lose the enormous biodiversity which they formerly hosted. In some coastal areas the disappearance of ecosystems sustained by mangrove swamps is a source of serious concern.

40. Oceans not only contain the bulk of our planet’s water supply, but also most of the immense variety of living creatures, many of them still unknown to us and threatened for various reasons. What is more, marine life in rivers, lakes, seas and oceans, which feeds a great part of the world’s population, is affected by uncontrolled fishing, leading to a drastic depletion of certain species. Selective forms of fishing which discard much of what they collect continue unabated. Particularly threatened are marine organisms which we tend to overlook, like some forms of plankton; they represent a significant element in the ocean food chain, and species used for our food ultimately depend on them.

41. In tropical and subtropical seas, we find coral reefs comparable to the great forests on dry land, for they shelter approximately a million species, including fish, crabs, molluscs, sponges and algae. Many of the world’s coral reefs are already barren or in a state of constant decline. “Who turned the wonderworld of the seas into underwater cemeteries bereft of colour and life?”[25] This phenomenon is due largely to pollution which reaches the sea as the result of deforestation, agricultural monocultures, industrial waste and destructive fishing methods, especially those using cyanide and dynamite. It is aggravated by the rise in temperature of the oceans. All of this helps us to see that every intervention in nature can have consequences which are not immediately evident, and that certain ways of exploiting resources prove costly in terms of degradation which ultimately reaches the ocean bed itself.

42. Greater investment needs to be made in research aimed at understanding more fully the functioning of ecosystems and adequately analyzing the different variables associated with any significant modification of the environment. Because all creatures are connected, each must be cherished with love and respect, for all of us as living creatures are dependent on one another. Each area is responsible for the care of this family. This will require undertaking a careful inventory of the species which it hosts, with a view to developing programmes and strategies of protection with particular care for safeguarding species heading towards extinction.

Jun 162015
 

Addendum: The Senate Appropriations Committee's Interior and Environment Subcommittee followed suit by approving its own spending bill, which also prohibits spending to implement the WOTUS rule.

June 16 - The House Appropriations Committee approved a spending bill for the Interior Department and EPA that includes riders targeting the possible proposed listing of the greater sage-grouse, directing that the gray wolf in Wyoming and the Great Lakes be delisted once again, and prohibiting EPA from implementing its newly promulgated "waters of the U.S." rule.

The committee rejected amendments to strip the bill of those riders and others that have been criticized by the Obama Administration and environmental groups, including one addressing the listing of the northern long-eared bat. In addition, the committee adopted an amendment directing FWS to complete a five-year review of the Delta smelt.

Here's a list of amendments that did pass the committee, as provided in a press release issued today:

Rep. Calvert – The Manager’s amendment makes technical and non-controversial changes to the bill and report. The amendment was adopted on a voice vote.

Rep. Visclosky –The amendment changes bill language requiring that all iron and steel used in water infrastructure projects be sourced within the United States. The amendment was adopted on a voice vote.

Rep. Amodei – The amendment adds report language clarifying the process for products to be designated as “made in America.” The amendment was adopted on a voice vote.

Rep. Jenkins – The amendment prohibits funding for the EPA to implement or administer updates to existing ozone regulations. The amendment was adopted on a vote of 31-20.

Rep. Cole – The amendment prohibits funding to implement, administer, or enforce a final rule titled "Hydraulic Fracturing on Federal and Indian Lands." The amendment was adopted on a voice vote.

Rep. Valadao – The amendment adds report language relating to the Delta Smelt and directs the Fish and Wildlife Service to complete a five-year status review of the species, as required by law. The amendment was adopted on a voice vote. 

Jun 152015
 

Press Release from the Southern Environmental Law Center

For Immediate Release: June 15, 2015

Contact:

Bill Sapp, Southern Environmental Law Center, 404-521-9900, bsapp@selcga.org
Chris Manganiello, Georgia River Network, 706-549-4508, chris@garivers.org
Jenny Hoffner, American Rivers, 404-373-3602, jhoffner@americanrivers.org

GA Supreme Court Defers to EPD;
Buffer Protection for Freshwater Wetlands Not Required

Atlanta, GA—The Georgia Supreme Court today ruled in favor of the Environmental Protection Division (EPD) after the agency appealed a state court of appeals' decision that the Georgia Erosion & Sedimentation Act’s 25-foot water quality buffer provision applies to all state waters.

The Southern Environmental Law Center, representing Georgia River Network and American Rivers, was successful in overruling EPD’s policy that only some state waters are protected by buffers through a favorable decision from the Georgia Court of Appeals in July 2014. The decision also invalidated EPD Director Judson Turner’s April 2014 memorandum that stripped the protective buffer from the Georgia Coast.

After Director Turner ordered local issuing authorities to disregard the Georgia Court of Appeals’ decision, EPD appealed the appellate court’s decision and prevailed in state Supreme Court.

“A small strip of trees and plants may seem inconsequential, but that buffer provides a critical filter to prevent sediment and pollution from clogging our waters,” said Bill Sapp from the Southern Environmental Law Center. “We are disappointed with the decision, but regardless of today’s outcome, we will continue our work to restore protective measures and ensure that Georgia’s waterways are more swimmable and drinkable for the communities and industries that rely on clean water statewide.”

“It is fortunate that the 25-foot protective buffer has been restored along Georgia’s coastal marshes through the bill passed in the recent legislative session, which successfully closed large statutory loopholes that would have left our coast at risk,” said Chris Manganiello from Georgia River Network. “We will continue to work toward restoring the same protections for freshwater wetlands, and for all other waters across the state that are not currently protected.”

“Adopting consistent measures in order to keep invaluable rivers, streams, and marshlands clean and safe is in the best interest of all Georgians,” said Jenny Hoffner from American Rivers. “We remain hopeful that EPD will end its haphazard approach to how it applies buffers and instead implement a uniform method for protecting Georgia’s waters.”

###

Jun 152015
 

For more Federal Register notices on the ESA and National Environmental Policy Act, go to http://www.eswr.com/fr-today

The Fish and Wildlife Service has begun a "scoping period" on an Environmental Impact Statement that will examine a plan to issue Incidental Take Permits under a Midwest Wind Energy MultiSpecies Habitat Conservation Plan that is being prepared. The Federal Register notice was published Friday, June 12.

FWS and planning partners are preparing the MSHCP. The partners include the conservation agencies for seven of eight Midwestern states within the Plan Area, the American Wind Energy Association (a consortium of wind energy companies), and The Conservation Fund.

"The MSHCP Plan Area encompasses all lands within the political boundary of Region 3 of the service, which includes eight states: Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, Ohio, and Wisconsin."

http://www.midwestwindenergyhcpeis.org   More information here

"The MSHCP would cover eight species that are subject to injury or mortality at wind turbine facilities, including six federally listed species and two unlisted species. The six federally listed species covered under the MSHCP include: Indiana bat (Myotis sodalis), northern long-eared bat (Myotis septentrionalis), Kirtland’s warbler (Dendroica kirtlandii), piping plover (Charadrius melodius) (Great Lakes population and northern Great Plains population, which are two distinct population segments), and interior least tern (Sternula antillarum athalassos). The unlisted species included in the MSHCP are little brown bat (Myotis lucifugus) and bald eagle (Haliaeetus leucocephalus). Species may be added or deleted as the MSHCP is developed based on further analysis, new information, agency consultation, and public comment."

Public meetings, as well as a webinar, are scheduled in July.

More Federal Register notices are below

Public Inspection

FWS will prepare an EA or EIS on an application from Praxair Inc. for a right-of-way (ROW) permit to build, operate, and maintain two pipelines within an existing maintained pipeline corridor crossing the Brazoria National Wildlife Refuge (NWR) in Brazoria County, Texas. Scoping process begins.

EPA Regions 1, 2, 3, 5, 6, 7, 8, 9, and 10 issue final 2015 National Pollutant Discharge Elimination System (NPDES) general permit for stormwater discharges from industrial activity, also referred to as the Multi-Sector General Permit (MSGP). | March 12 final rule

Forest Service will prepare an EIS for a project called Ringo, centered around Ringo Butte south of Wickiup Reservoir on the Crescent Ranger District in Oregon. Proposed action includes about 6,688 acres of thinning. "In order to continue to provide these values and services on the landscape into the future, there is a need to reduce tree density and surface fuels in order to restore and maintain a resilient, fire-adapted ecosystem."

The Commander of the Northwestern Division of the U.S. Army Corps of Engineers solicits applications to fill vacant stakeholder representative member positions on the Missouri River Recovery Implementation Committee (MRRIC). Members are sought to fill vacancies on a committee to represent various categories of interests within the Missouri River basin. | MRRIC

NMFS issues Incidental Harassment Authorization (IHA) to BLM to take marine mammals, by harassment incidental to conducting a one-day field-based land survey of cultural sites located on a small island within the eastern Aleutian Islands archipelago, Alaska, June through July, 2015.

NMFS issues Incidental Harassment Authorization to Shell Gulf of Mexico Inc. to take marine mammals, by harassment, incidental to ice overflight surveys in the Chukchi and Beaufort Seas, Alaska.

NMFS: Alaska Department of Fish and Game (ADFG), Division of Wildlife Conservation, Juneau, AK (Principal Investigator: Lori Quakenbush) has been issued a minor amendment to Scientific Research Permit No. 14610-03

FERC will prepare an EA on impacts of the Susquehanna West Project involving construction and operation of facilities by Tennessee Gas Pipeline Company, L.L.C. (TGP) in Tioga and Bradford
Counties, Pennsylvania

Dates link to FR Tables of Contents

Monday, June 15, 2015

Low-effect HCPs, Florida (sand skink, Florida scrub-jay): FWS receives three applications for incidental take permits (ITPs) associated with low-effect HCPs. DCS Capital Investments I, LLC requests a 15-year ITP; Preferred Materials, Inc., doing business as Conrad Yelvington Distributors, requests a 3-year ITP; and Wickham Summerbrook, LLC requests a 5-year ITP

FWS releases Draft Comprehensive Conservation Plan (CCP) and Environmental Assessment (EA) for the Butte Sink, Willow Creek-Lurline, and North Central Valley Wildlife Management Areas

NOAA says March 12, 2015, final rule, which expanded Gulf of the Farallones National Marine Sanctuary from approximately 1,282 square miles (968 square nautical miles) to approximately 3,295 square miles (2,488 square nautical miles), became effective on June 9, 2015. NOAA has also changed the name of Gulf of the Farallones National Marine Sanctuary to Greater Farallones National Marine Sanctuary.

BuRec and the California Department of Water Resources will prepare a partially Recirculated Draft Environmental Impact Report/Supplemental Draft Environmental Impact Statement (RDEIR/SDEIS) on the Draft Bay Delta Conservation Plan and Natural Community Conservation Plan. "The RDEIR/SDEIS will describe and analyze refinement of the resource area analyses, alternatives, and actions, including additional alternatives that describe conveyance alternatives that do not contain all the elements of a Habitat Conservation Plan/Natural Communities Conservation Plan that are described in the previously circulated Draft Environmental Impact Report/Environmental Impact Statement (EIR/EIS)."

Friday, June 12, 2015

EPA receives agency EIS's for review

NMFS issues revised Incidental Harassment Authorization (IHA) to The Narragansett Electric Company, doing business as National Grid (TNEC), to take marine mammals, by harassment, incidental to construction of the Block Island Transmission System (BITS).

Wind energy: FWS receives application from Na Pua Makani Power Partners, LLC for an incidental take permit  authorizing take of one threatened and six endangered species | Documents should be here

FWS receives permit applications to import endangered species, marine mammals (zoos, trophies)

Forest Service to prepare an EA to establish management direction for the land and resources within San Gabriel Mountains National Monument, designated by Presidential Proclamation on Oct. 10, 2014

Enbridge spill: DOI, acting through the U.S. Fish and Wildlife Service (FWS); the Nottawaseppi Huron Band of the Potawatomi Tribe; and the Match-E-Be-Nash-She-Wish Band of the Pottawatomi Indians has written a Draft Damage Assessment and Restoration Plan and Environmental Assessment, which describes proposed alternatives for restoring injured natural resources and compensating for losses resulting from the discharges of oil from Enbridge’s Line 6B oil pipeline near Marshall, Michigan, in July 2010.

Enforcement: Oil Pollution Act consent decree (Enbridge spill)

BLM Salt Lake Field Office begins scoping process for Resource Management Plan (RMP)
Amendment with an associated Environmental Assessment (EA) for target shooting in
the Eastern Lake Mountains area.

BLM issues Record of Decision (ROD) for the Approved Resource Management Plan (RMP) for
the John Day Basin planning area located in northern central Oregon  ::   More here

Commodity Credit Corporation will prepare a PEIS for the Biomass Crop Assistance Program

FERC releases DEIS, announces public hearings for the proposed New England Clean Power Link
(NECPL) Transmission Line   ::  New England Clean Power Link page

FAA will prepare EIS for proposed improvements to the Norfolk International Airport

Jun 102015
 

The House Appropriations Committee's Interior/Environment subcommittee has approved a funding bill for FY 2016 that slashes spending for EPA by $718 million from the current year, delays issuing a proposed listing of the greater sage-grouse -- a long-shot to earn an ESA proposal in any case -- and nixes EPA and the Army Corps of Engineers' "waters of the U.S." rule.

The bill also would remove gray wolves in Wyoming and the Great Lakes from the endangered species list and loosen restrictions on ivory possession and shipments within the United States.

Go here for yesterday's post on the bill, with links to the text and excerpts of most of the environmental "riders."

No amendments were offered at the subcommittee markup. Usually, amendments are offered at the full committee markup, and historically -- when they are offered by Democrats who are trying to eliminate environmental riders -- they have been defeated on party-line votes.

Statements

Ken Calvert (R-Calif.)., chairman of subcommittee

Harold Rogers (R-Ky.), chairman of Appropriations Committee