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.

Apr 062015

Environmental groups are harshly criticizing a move by the Forest Service to reinstate the North Fork Coal Mining Area exception of the Colorado Roadless Rule, which the service said would "allow for temporary road construction for coal exploration and/or coal-related surface activities in a 19,100-acre area defined as the North Fork Coal Mining Area."

The announcement came in the form of a notice to prepare a supplemental EIS that went on Public Inspection this morning.

The revival of the "gaping loophole," tossed out by a federal court last fall, would let Arch Coal "build roads and scrape well pads over thousands of acres of otherwise-protected, publicly-owned national forest and crucial wildlife habitat in the state. The loophole paves the way for Arch Coal to expand coal-mining operations," the groups, including Center for Biological Diversity, Sierra Club and WildEarth Guardians, said.

(The other groups on the press release are the Natural Resources Defense Council, Defenders of Wildlife, Rocky Mountain Wild, and High Country Conservation Advocates.)

Their release noted that "[t]he court’s ruling left the door open for the Forest Service to revive the loophole if the agency undertook a new analysis that adequately disclosed the climate pollution the loophole would cause. The Forest Service’s announcement gives the public until May 22 to comment on the proposal."

In California, a collection of other advocates was questioning the wisdom of the Alameda Creek Bridge Replacement Project in Niles Canyon. Caltrans, they said, has not adequately examined the cumulative environmental impacts or the specific impacts on the Alameda whipsnake.

Here's the news release. Scroll down for excerpts from the comments mentioned in the release.

Groups Blast Caltrans Construction Plans in Niles Canyon

For Immediate Release - April 6, 2015
Contact: Jeff Miller, Alameda Creek Alliance, (510) 499-9185

Niles, CA – Local groups are opposing Caltrans’ proposal for the Alameda Creek Bridge Replacement Project in Niles Canyon, exposing it as an overbuilt highway widening project that would increase driving speeds though the canyon and could actually reduce safety for motorists and bicyclists, while cutting down 300-400 native trees and damaging wildlife habitat along Alameda Creek. The Alameda Creek Alliance, East Bay Chapter of the California Native Plant Society, Citizens Committee to Complete the Refuge, Save Niles Canyon, Southern Alameda County Group of the Sierra Club, and Bay Area Transportation Working Group, as well as experts on special-status wildlife species, hydrology and fisheries, and traffic safety submitted more than 50 pages of critical comments last week on the draft Environmental Impact Report for the project.

“This Caltrans project is anything but a simple bridge replacement – it involves widening up to half a mile of Niles Canyon Road, removing hundreds of native trees and excavating along thousands of feet of the canyon, adding large retaining walls,” said Jeff Miller, director of the Alameda Creek Alliance. “Caltrans’ overbuilt approach is simply not needed to make the bridge segment safer.”

Caltrans claims the project to replace the 87-year old Alameda Creek Bridge and add modern safety railings and road shoulders on the bridge is needed for bicyclist and motorist safety. Caltrans proposes engineering the new bridge and its roadway approaches to increase motorist speeds from 35 to 45 mph, while widening the entire roadway through the half-mile project reach to 42 feet, with shoulders. The project would require realigning 1,400 feet of roadway for the western approach and from 300 to 1,190 feet for the eastern approach. Construction would damage significant areas of the canyon with hundreds to thousands of feet of cut-and-fill and large concrete retaining walls, both above the roadway and adjacent to Alameda Creek. It would also require cutting from 284 to 414 native trees and encroaching on habitat for threatened Alameda whipsnakes, steelhead trout and red-legged frogs.

“Caltrans promised a ‘clean slate’ on the Niles Canyon highway safety projects with consideration of public input but this project is more of the same – trying to turn Niles Canyon road into a freeway one segment at a time,” said Miller. “Caltrans should look at alternatives that would replace the bridge at the current speed of 35 mph, which would scale back the need for tree cutting and other severe environmental impacts.”

Caltrans claims the agency is required to increase the design speed of the bridge and its approaches to the posted speed limit of 45 mph. Yet many locations throughout the canyon are posted for 30-35 mph because of tight turns in the narrow canyon. The Federal Highway Administration and Caltrans’ own Highway Design Manual allow a lower than “standard” design speed, based on environmental, safety and other considerations.

The four “alternatives” analyzed by Caltrans in the Environmental Impact Report for the bridge replacement project all increase the design speed, contain the same increases in the turn radius for the bridge approaches, and only differ in how much cut-and-fill and retaining walls would be constructed on the east and west approaches to the bridge. All of Caltrans’ “alternatives” would have severe impacts on riparian trees, endangered species habitat, and the hydrology and habitat value of Alameda Creek. Caltrans did not evaluate whether a 2007 project that installed centerline rumble strips through Niles Canyon has reduced vehicle collisions in the project area.

Caltrans acknowledges that it has not even begun mitigation for its abandoned highway widening project in lower Niles Canyon in 2011, when the agency cut 150 native trees along Alameda Creek. Caltrans has several other planned safety projects in the Niles Canyon corridor that will cumulatively cut or impact a total of 550 to 650 trees. Caltrans has no timeline for mitigation for tree-cutting impacts from the bridge replacement project and no details about where mitigation tree planting will occur. Caltrans has acknowledged that it cannot find suitable nearby mitigation sites that are acceptable to regulatory agencies, nor can it adequately mitigate for cutting large, mature trees and the loss of the habitat values they provide for native wildlife.
The proposed bridge replacement project does contains some environmentally beneficial elements, including removal of a concrete weir in Alameda Creek which currently serves as a barrier to fish passage, removal of the existing bridge’s in-stream piers, and removal of invasive plants.

A dozen community groups have proposed safety solutions for Niles Canyon Road that do not involve needless destruction of the environmental and scenic values of Alameda Creek or Niles Canyon, and opposed Caltrans’ plans to increase the design speed of the Alameda Creek Bridge and other road segments.

Caltrans initially proposed a three-phase highway safety project that involved widening much of Niles Canyon Road between Fremont and Interstate 680, which would damage habitat for steelhead trout and other endangered species, and remove rare sycamore forest along the creek. Caltrans internally approved phase one of the project in 2006 without alerting the public. Caltrans cut nearly 100 trees in the canyon in spring of 2011. After large public protests, the Alameda Creek Alliance filed suit challenging the inadequate environmental review. A court order in June 2011 halted construction and a settlement agreement in December 2011 forced Caltrans to abandon the project. In 2012 the Federal Highway Administration conducted a road safety assessment for Niles Canyon, finding that Caltrans’ proposed highway widening was not warranted by the safety data. The FHA identified accident hot-spots within Niles Canyon that should be addressed, and noted four other locations in the canyon with higher priority need of safety improvements than the Alameda Creek Bridge.


The DEIR avoids any analysis of the cumulative impacts to the Alameda Whipsnake, instead impermissibly focusing on cumulative impacts to AWS Critical Habitat Unit 3. CEQA requires that this EIR consider the cumulative impacts to the species as well as its habitat. In addition, the DEIR briefly discusses four nearby projects with impacts to Alameda whipsnake habitat and/or designated critical habitat:

1) The Arroyo de la Laguna Bridge Project, which is currently in the early planning phase. The DEIR notes that the project will involve impacts to Alameda whipsnake habitat but these impacts and the mitigation associated with the project have not yet been determined.

2) The upcoming Caltrans Niles Canyon Safety Improvements Project, with a preliminary estimate of impacts to 13.5 acres of Alameda whipsnake habitat (both permanent and temporary impacts). According to preliminary estimates, the project will impact approximately one acre of Alameda whipsnake Critical Habitat Unit 3.

3) The I-680 HOV Lanes Project, with impacts to 18.98 acres of Alameda whipsnake habitat (11.7 acres of permanent impacts and 7.3 acres of temporary impacts).

4) The Freeway Performance Initiative on I-680 Project, with estimated impacts to 9.9 acres of Alameda whipsnake habitat (3.1 acres of permanent impacts and 6.8 acres of temporary impacts).

The DEIR fails to discuss seven other completed or anticipated projects nearby with impacts to Alameda whipsnake habitat.

The FHWA report stated that a project to replace and upgrade the bridge, and upgrade the approach curves would not only increases sight distance and design speed, but would actually increase motorist speed. The FHWA report noted the following disadvantages to such a project: “Requires a new footprint for the realigned roadway; Potential impacts to endangered species; Impacts Alameda Creek Bridge during construction and permanently; Environmental impact to Alameda Creek; Potential loss of riparian habitat.

Caltrans also provided tables as part of the DEIR that calculate the number of large, mature native trees (over 20” dbh) that would be removed under the various Project alternatives (Alameda Creek Bridge Replacement Project – Large Native Trees within Impact Areas). Alternative 1 would remove 29 large mature trees (5 Bays, 10 Sycamores, 13 Live Oaks, and 1 Red Willow); Alternative 2 would remove 19 large mature trees (2 Bays, 6 Sycamores, 10 Live Oaks, and 1 Red Willow); Alternative 3A would remove 24 large mature trees (3 Bays, 8 Sycamores, 12 Live Oaks, and 1 Red Willow); and Alternative 3B would remove 20 large mature trees (1 Bay, 7 Sycamores, and 12 Live Oaks). Large mature native trees such as these provide important wildlife habitat through shading of Alameda Creek, stabilization of stream banks, and providing cavities for nesting birds. These habitat attributes of large, mature trees cannot be replaced by planting small trees or planting trees elsewhere; it can take many decades or even a century for replacement trees to reach similar sizes and provide similar habitat attributes.

Additionally, Caltrans admitted at the 2/23/15 scoping hearing for the Project that it cannot find suitable nearby mitigation sites that are acceptable to regulatory agencies, nor can it adequately mitigate for the loss of large, mature trees, and the habitat value they provide for native wildlife by replacing those trees in-kind, i.e. with equivalent large, mature native trees along Alameda Creek.

The proposed Project contains some environmentally beneficial elements, which should continue to be included in a meaningful Project alternative.

These include the proposed removal of a concrete weir in Alameda Creek which currently serves as a barrier to fish passage, removal of the existing Alameda Creek Bridge’s in-stream piers, and removal of invasive Arundo from the Project area. Removal of the concrete weir would allow the stream to take on a more natural morphology and would remove a low flow fish passage barrier. Removal of the existing bridge and building a replacement bridge that would
reduce the in-stream footprint of the bridge piers would improve the geomorphology of Alameda Creek. Removal of the invasive Arundo would improve habitat for native fish and amphibian species.

Apr 062015

Amendments approved for inclusion in a budget resolution passed by the Senate have drawn the ire (and fire) of environmental groups. Defenders of Wildlife attacked the amendments for "directly harm[ing] our wildlife and public lands," citing in particular Senate Amendments 422, 659 and 838.

S. Amdt. 422, which deals with the northern long-eared bat, was agreed to by Unanimous Consent by the Senate on March 27, just a few days before it was listed as threatened by the Fish and Wildlife Service. It was sponsored by Sen. Thune, John [R-SD].   (Press release)



The Chairman of the Committee on the Budget of the Senate may revise the allocations of a committee or committees, aggregates, and other appropriate levels in this resolution for one or more bills, joint resolutions, amendments, amendments between the Houses, motions, or conference reports relating to the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), which may include requirements that State conservation plans relating to the northern long-eared bat are given maximum flexibility to be successful so as to preserve and protect local and rural economies before any Federal listing decision is made with respect to the northern long-eared bat, by the amounts provided in such legislation for those purposes, provided that such legislation would not increase the deficit over either the period of the total of fiscal years 2016 through 2020 or the period of the total of fiscal years 2016 through 2025. (emphasis added by ESWR)

Defenders' take: "Amendment 422 . . . would block, perhaps permanently, a final U.S. Fish and Wildlife (FWS) decision due April 2, 2015 about whether to list the northern long-eared bat under the ESA, in deference to vague and undefined “State conservation plans.” There is no requirement that the State conservation plans adequately or actually protect the bat.  The northern long-eared bat has declined by 99 percent and it should be given full protection as an endangered species."

S. Amendment 659 would require the Fish and Wildlife Service to consider the cumulative economic impacts when designating critical habitat. It passed the Senate, 52-42 (03/27/2015)

Text (also below):

Two Democrats -- Joe Manchin of West Virginia and Heidi Heitkamp of North Dak0ta -- joined 50 Republicans in approving the amendment. The nays included 40 Democrats and Republicans Kelly Ayotte (N.H.) and Susan Collins (Maine). Not voting were Dianne Feinstein (D-CA), Mark Kirk (R-IL), Barbara Mikulski (D-MD), Brian Schatz (D-HI), Richard Shelby (R-A-AL), and Tom Udall (D-NM).

SA 659. Mr. COTTON submitted an amendment:


The Chairman of the Committee on the Budget of the Senate may revise the allocations of a committee or committees, aggregates, and other appropriate levels in this resolution for one or more bills, joint resolutions, amendments, amendments between the Houses, motions, or conference reports relating to critical habitat designations, which may include requirement that the United States Fish and Wildlife Service examine the cumulative economic effects of the designation, such as on land or property uses or values, regional employment, or revenue impacts on states and units of local government, by the amounts provided in such legislation for those purposes, provided that such legislation would not raise new revenue and would not increase the deficit over either the period of the total of fiscal years 2016 through 2020 or the period of the total of fiscal years 2016 through 2025.

(emphasis added)

Defenders' take: "Amendment 659 . . . would require the U.S. Fish and Wildlife Service (FWS) to perform an unnecessary, costly and time-consuming examination of the “cumulative” economic effects of a critical habitat designation – an approach Congress rejected decades ago as dangerous to the protection of imperiled species. The FWS already analyzes and solicits public comment on the incremental costs and benefits of designating critical habitat.

Amendment No. 838 was introduced by Sen. Lisa Murkowski (R-Alaska) and approved 51-49  with one Republican, Kelly Ayotte of New Hampshire, joining the 46 Democrats and two Independents voting no.

(Purpose: To establish a spending-neutral reserve fund relating to the disposal of certain Federal land)


The Chairman of the Committee on the Budget of the Senate may revise the allocations of a committee or committees, aggregates, and other appropriate levels in this resolution for one or more bills, joint resolutions, amendments, amendments between the Houses, motions, or conference reports relating to initiatives to sell or transfer to, or exchange with, a State or local government any Federal land that is not within the boundaries of a National Park, National Preserve, or National Monument, by the amounts provided in such legislation for those purposes, provided that such legislation would not raise new revenue and would not increase the deficit over either the period of the total of fiscal years 2016 through 2020 or the period of the total of fiscal years 2016 through 2025.

Defenders' take: "Amendment 838 . . . would authorize the sale, transfer or exchange of federal lands to state and local governments, which in turn could sell them off to private interests for oil and gas drilling and other development. This amendment endangers our nation’s most treasured places, such as the Arctic National Wildlife Refuge. This devastating amendment could result in the loss of recreational access to all Americans and the destruction of some of our most iconic conservation lands and wildlife habitat."

Rep. Cynthia Lummis (R-Wyo.) (H.R. 1667) To amend the Endangered Species Act of 1973 to require publication of the basis for determinations that species are endangered species or threatened species, and for other purposes.

Rep. McClintock, Tom [R-CA-4] (H.R. 1668) - To amend the Endangered Species Act of 1973 to provide for suspension of application of the Act to water releases by Federal and State agencies in river basins that are affected by drought, and for other purposes."

Rep. Noem, Kristi L. [R-SD-At Large] (H.R. 1589) - To prohibit the use of funds by the Secretary of the Interior to make a final determination on the listing of the northern long-eared bat under the Endangered Species Act of 1973.

  • 3/24/15 - Referred to the House Cmte on Natural Resources

Rep. Flores, Bill [R-TX-17] (Introduced 01/28/2015) H.R.585  - To amend the Endangered Species Act of 1973 to establish a procedure for approval of certain settlements.

  • 3/17/15  - Referred to the Subcommittee on Regulatory Reform, Commercial And Antitrust Law.

Sen. Paul, Rand [R-KY] (Introduced 03/24/2015) - Endangered Species Management Self-Determination Act

  • Read twice and referred to the Committee on Environment and Public Works

Apr 022015

A Montana man will be sentenced May 12, approximately a year after he shot and killed three three grizzly bears. A magistrate judge found Dan Calvert Wallen guilty on three counts of taking a federally threatened species (U.S. v. Wallen, MJ-14-45-M-JCL, D. Mont.).

Court documents: Information and Findings of Fact and Conclusions of Law

Apr 022015

Other coverage

Very interesting case, which includes the nugget that FSA altered its guidance (scroll down for excerpt) to conform with what a decision-maker said to justify the decision reversed here, when the Sixth Circuit Court of Appeals -- on April Fool's Day, no less -- slammed the Agriculture Department's treatment of former Rep. Nick Smith (R-Mich.), who lost his farm benefits after trying to fix a drainage tile. That's a very abbreviated version, but let the Sixth Circuit tell it:

This complicated case only involves a 2.24-acre parcel of land. But Smith contends, and we have no reason to doubt, that this case has ramifications for thousands of corn and soybean farmers. In January 2009, USDA signed a mediation agreement with Smith, permitting him to plant the parcel in the spring and cut down trees so long as Smith did not remove stumps. USDA has never argued that Smith intentionally violated this agreement. Nonetheless, USDA has permanently deprived Smith of program benefits and forced him to navigate a bureaucratic labyrinth. All the while, USDA has demonstrated a disregard for its own regulations and insisted that Smith mitigate his land when the relief he seeks is not based on regulations requiring mitigation.

At oral argument, USDA stated that “the fact that [Smith] would not come to the mitigation or restoration table colored the reaction of the agency.” The fact that Smith’s stance on mitigation may have “colored” the agency’s relationship with him does not mean that USDA is entitled to ignore the law.

We defer to USDA’s interpretation of the prior-converted wetland exemption in 16 U.S.C. § 3822(b)(2)(D). But because NRCS did not consider Smith’s minimal-effect evidence, as the applicable regulations contemplate that NRCS must do, we remand on this issue.

We also remand to FSA for the agency to consider Smith’s penalty-reduction request in accordance with law. On remand, FSA may not rely on its new guidance, whether or not crafted specifically for the purposes of this litigation. We, therefore, REVERSE the judgment of the district court and REMAND with instructions to remand to the respective agencies for further proceedings in accordance with this opinion.

Apr 012015

We'll have more later, but Center for Biological Diversity announced a decision from the federal court on Hawaii about the impact of Navy training exercises on "whales, dolphins, other marine mammals and imperiled sea turtles." CBD's  press release is below.

Court Rules Navy Training in Pacific Violates Laws Meant to Protect Whales, Sea Turtles

Federal Judge Says Feds Wrongly Approved Plan Allowing Whales, Dolphins,
Other Wildlife to Be Harmed Nearly 10 Million Times

HONOLULU— A federal judge ruled on Tuesday that the National Marine Fisheries Service acted illegally in approving U.S. Navy testing and training activities in the Pacific Ocean that threaten widespread harm to whales, dolphins, other marine mammals and imperiled sea turtles.

The Navy and Fisheries Service had concluded that, over the plan’s five-year period, the Navy’s use of explosives and sonar, along with vessel strikes, could result in thousands of animals suffering death, permanent hearing loss or lung injuries. Millions of others could be left with temporary injuries and significant disruptions to feeding, breeding, communicating, resting and other essential behaviors. In all, the Navy’s plan could cause an estimated 9.6 million instances of harm to marine mammals.

The decision of the U.S. District Court for the District of Hawaii results from a December 2013 lawsuit brought by Earthjustice, representing Conservation Council for Hawaii, the Animal Welfare Institute, the Center for Biological Diversity and the Ocean Mammal Institute, which challenged the Fisheries Service’s approval of Navy operations off Hawaii and Southern California as violating the National Environmental Policy Act, Marine Mammal Protection Act and Endangered Species Act.

“The court’s ruling recognizes that, to defend our country, the Navy doesn’t need to train in every square inch of a swath of ocean larger than all 50 United States combined,” said David Henkin, the Earthjustice attorney representing the conservation groups. “The Navy can fulfill its mission and, at the same time, avoid the most severe harm to dolphins, whales and countless other marine animals by simply limiting training and testing in a small number of biologically sensitive areas.”

The National Environmental Policy Act requires that federal agencies, including the Fisheries Service and Navy, consider a range of alternatives, including alternatives that could be pursued with less environmental harm, and that the public have an opportunity to review and comment on that analysis.

The groups sued because the Fisheries Service and the Navy failed to evaluate alternatives that would place biologically important areas off limits to training and testing.

The judge concluded that the Navy’s claim it needs continuous access to every single square mile of the Pacific, and cannot avoid — even temporarily — biologically important areas where marine mammals breed, nurse their young, and feed, “makes no sense given the size of the ocean area involved.”

Noting the “stunning number of marine mammals” the Navy’s activities threaten with harm, the judge also found the Fisheries Service violated its legal duties under the Endangered Species Act to ensure Navy training would not push endangered whales and turtles to extinction and under the Marine Mammal Protection Act to prevent harm to marine mammal populations.

The judge stated: “Searching the administrative record’s reams of pages for some explanation as to why the Navy’s activities were authorized by the [Fisheries Service], this court feels like the sailor in Samuel Taylor Coleridge’s ‘The Rime of the Ancient Mariner’ who, trapped for days on a ship becalmed in the middle of the ocean, laments, ‘Water, water, every where, Nor any drop to drink.’ ”

“In 2004, Navy sonar during Rim of the Pacific war games was implicated in a mass stranding of around 200 melon-headed whales in Hanalei Bay on Kaua‘i, with one baby whale dying,” said Marjorie Ziegler, executive director of Conservation Council for Hawaii. “This ruling hopefully will spare other marine mammals from a similar fate.”

“The science is clear that sonar blasts and explosives kill and injure marine mammals and sea turtles,” said Susan Millward, executive director of Animal Welfare Institute. “The court recognized that the law doesn’t allow the Fisheries Service to give the Navy a blank check to harm unlimited numbers of animals.  Both agencies must do more to protect these vulnerable animals.”

“The Navy shouldn’t play war games in the most sensitive waters animals use for feeding and breeding,” said Miyoko Sakashita, oceans director at the Center for Biological Diversity. “The Fisheries Service has already identified vital areas to protect for whales and dolphins around the Hawaiian Islands and off Southern California, and they should be off-limits to explosives and other dangerous activities. The federal government has a responsibility to protect our natural heritage as well as national security.”

“This is an important victory for our oceans,” said Marsha Green, president of Ocean Mammal Institute. “The Navy can, and must, find ways to accomplish its mission that reduce the amount of deafening noise that prevents marine mammals from communicating, navigating, feeding and finding mates.”

A video on the effects of Navy sonar training on marine mammals is available here:
Court Document:
Online version:

Ocean mammals depend on hearing for navigation, feeding and reproduction. Scientists have linked military sonar and live-fire activities to mass whale beaching, exploded eardrums and even death. In 2004, during war games near Hawaii, the Navy’s sonar was implicated in a mass stranding of up to 200 melon-headed whales in Hanalei Bay, Kauai.

The Navy and Fisheries Service estimate that, over the plan’s five-year period, training and testing activities will result in thousands of animals suffering permanent hearing loss, lung injuries or death. Millions of animals will be exposed to temporary injuries and disturbances, with many subjected to multiple harmful exposures.




Apr 012015

Does the name make sense now? (credit: Wetland Studies and Solutions)

CBD slams decision

FWS release

The Fish and Wildlife Service has decided to list the Northern long-eared bat as threatened with a 4(d) rule.

Page with information from FWS

Said FWS in the rule: "[N]o other threat is as severe and immediate to the northern longeared bat’s persistence as the disease, white-nose syndrome (WNS).... WNS is currently the predominant threat to the species, and if WNS had not emerged or was not affecting the northern long-eared bat populations to the level that it has, we presume the species’ would not be experiencing the dramatic declines that it has since WNS emerged."

"Seven species of North American hibernating bats have been confirmed with WNS to
date: big brown bat, gray bat, eastern small-footed bat, little brown bat, northern long-eared bat,
Indiana bat, and tricolored bat. The effect of WNS appears to vary greatly by species, with

several species exhibiting high mortality and others showing low or no appreciable population-level effects (Turner et al. 2011, p. 13). The fungus that causes WNS has been detected on five additional species, but with no evidence of the infection characteristic of the disease; these include Rafinesque’s big-eared bat (Corynorhinus rafinesquii), Virginia big-eared bat (C. townsendii virginianus), silver-haired bat (Lasionycteris noctivagans), eastern red bat (Lasiurus borealis), and southeastern bat (Myotis austroriparius).

"The impacts of WNS on North American bat populations have been substantial. Service and State biologists estimate that at least 5.7 million to 6.7 million bats of several species have died from WNS (Service 2012, p. 1). Dzal et al. (2011, p. 393) documented a 78 percent decline in the summer activity of little brown bats in New York State, coinciding with the arrival and spread of WNS, suggesting large-scale population effects. Turner et al. (2011, p. 22) reported an 88 percent decline in the number of all hibernating bats at 42 sites across New York, Pennsylvania, Vermont, Virginia, and West Virginia. Furthermore, Frick et al. (2010a, p. 681) concluded that the little brown bat, formerly the most common bat in the northeastern United States, is undergoing catastrophic declines in the region due to WNS, and is at risk of regional extirpation in the near future. Similarly, Thogmartin et al. (2013, p. 171) predicted that WNS is likely to extirpate the federally endangered Indiana bat over large parts of its range. While recent models by Ingersoll et al. (2013, p. 8) have raised some questions about the status of bat populations prior to the arrival of WNS, the empirical evidence from surveys of six species of hibernating bats in New York State, revealed populations that were likely stable or increasing prior to the emergence of WNS (Service 2011, p. 1). Subsequent to the emergence of WNS, decreases in some species of bats at affected hibernacula have ranged from 30 to 100 percent (Frick et al. 2010a, p. 680; Turner et al. 2011, pp. 16–19, 22)."

Changes from proposed rule (which would have listed bat as endangered)

(1) Based on our analyses of the potential threats to the species, we have determined that the northern long-eared bat does not meet the definition of an endangered species, contrary to our proposed rule published on October 2, 2013 (78 FR 61046).

(2) Based on our analyses, we have determined that the species meets the definition of a threatened species. Therefore, on the effective date of this final listing rule, the species will be listed as a threatened species in the List of Endangered and Threatened Wildlife at 50 CFR 17.11(h).

(3) We have further refined the estimated timeframe during which Pd (the fungus that causes white-nose syndrome) is expected to spread throughout the range of the northern long-eared bat.

(4) We have expanded the discussion of white-nose syndrome and the effects of whitenose syndrome on the northern long-eared bat under Factor C.

(5) We have included additional (most recent available) survey data for the species in the Distribution and Relative Abundance section.

Mar 312015

The resolution supporting delisting is below.

Here's the press release about the meeting, held this past weekend.

Restoring State Management of the Gray Wolf in the Western Great Lakes States

WHEREAS, the National Wildlife Federation is a strong supporter of scientific and professional management of wildlife species including the recovery of the gray wolf under the federal and state Endangered Species Acts; and

WHEREAS, gray wolf populations in Minnesota, Michigan and Wisconsin have exceeded their recovery targets by a factor of ten; and

WHEREAS, the Minnesota, Michigan and Wisconsin Departments of Natural Resources developed wolf management recovery plans that were approved by the U.S. Fish and Wildlife Service and were successfully implemented by the respective state agencies; and

WHEREAS, as a result of this successful restoration of the gray wolf in the Western Great Lakes, the U.S. Fish and Wildlife Service, by federal rule, attempted to delist the gray wolf in the states of Minnesota, Michigan and Wisconsin four times between 2003 and 2011; and

WHEREAS, each such delisting of the gray wolf was challenged in Federal Court on technical grounds, not based on its recovery status but on administrative or legal technicalities, which resulted in Federal Court decisions returning the gray wolf to the Federal Endangered Species list and removing state management of the species; and

WHEREAS, the latest Federal Court decision relisting the gray wolf on the Federal Endangered Species list occurred on December 19, 2014 with the court ruling that the gray wolf could not be removed from the Federal Endangered Species list until it had been fully recovered in its full historic range in 29 Eastern and Central states; and

WHEREAS, as a result of this latest court decision, state permits authorizing lethal control of wolves depredating livestock are no longer authorized, state laws authorizing land owners to kill wolves in the act of attacking domestic animals are no longer valid and state laws allowing management of wolf populations through harvest regulation no longer are valid; and

WHEREAS, based on recent and extensive experience, without state lethal methods of management, wolves will continue to cause significant depredation of domestic animals in the states of Minnesota, Michigan and Wisconsin; and

NOW, THEREFORE, BE IT RESOLVED, that the National Wildlife Federation, at its annual meeting assembled March 27-29, 2015 in Shepherdstown, West Virginia, hereby supports the delisting of the gray wolf in the states of Minnesota, Michigan and Wisconsin consistent with the professional scientific judgment of the U.S. Fish and Wildlife Service.

Mar 302015

Comments nonetheless requested on "interim final revised rules"

From the Public Inspection transom comes this: USDA, DOI and NOAA are issuing new rules for resolving factual disputes over conditions in FERC hydro licenses. Got all that?

Hydro rule from NOAA, USDA, Interior: "The Departments of Agriculture, the Interior, and Commerce are jointly revising the procedures they established in November 2005 for expedited trial-type hearings required by the Energy Policy Act of 2005. The hearings are conducted to expeditiously resolve disputed issues of material fact with respect to conditions or prescriptions developed for inclusion in a hydropower license issued by the Federal Energy Regulatory Commission under the Federal Power Act. The Departments are also revising the procedures for considering alternative conditions and prescriptions submitted by a party to a license proceeding."

The Departments are promulgating three substantially similar rules—one for each agency—with a common preamble. The rules and preamble address a few issues that were left open in the 2005 rulemaking, such as who has the burden of proof in a trial-type hearing and whether a trial-type hearing is an administrative remedy that a party must exhaust before challenging conditions or prescriptions in court. In addition, the rules and preamble respond to the public comments we received on the 2005 rules, and they make a number of changes reflecting our experience in implementing those rules.


Matters of policy are also not appropriate for a trial-type hearing. Examples of such matters include what types and levels of adverse effects to a species from a project would be “acceptable,” or what kinds of mitigation measures may be desirable or “necessary” to protect a resource. These are not matters of fact, but rather matters of policy judgment committed to the discretion of the  Departments, in light of their management objectives for the resource. Under EPAct and these regulations, the Departments retain the prerogative to make these ultimate decisions in light of their policies; the ALJ may not appropriately address those issues. See 7 CFR 1.660(b)(3), 43 CFR 45.60(b)(3), 50 CFR 221.60(b)(3).

Related?: Press release from last week: 'The U.S. Department of Energy, U.S. Department of the Interior and U.S. Department of the Army for Civil Works announced today that the three agencies have extended their partnership to advance hydropower development for an additional five years."