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.

Mar 232015

In our haste to get this posted on the Web, we neglected to mention that the District Judge sitting by designation on the panel dissented "from the Majority’s decision to remand without vacatur." (If we had actually read the entire opinion, we would've seen the dissent. It took the environmental groups' press release today to alert us to this minor oversight.)

U.S. District Judge Amy Totenberg (yes, sister of the NPR journalist and commentator), said that "the significance of the Corps’ error is plainly discernible from counsel’s argument and the statutory and regulatory requirements governing the issuance of nationwide permits."

She did not agree with the majority, which said, "we cannot say that the Corps’ ultimate conclusion —that NWP 21 will have minimal effects — was unlawful.”

"The underestimation of the actual impacts to the waters of the United States is central to the issue of whether the Corps’ minimal impacts determination was “arbitrary, capricious . . . or otherwise not in accordance with law.' " she wrote. "The Corps’ issuance of NWP 21 based on its admitted failure to 'fully take into account the potential impacts of the activities authorized by NWP 21(a) [the grandfather provision in dispute on this appeal] when concluding that the impacts of NWP 21 would be minimal' violated § 404 of the Clean Water Act."

In a footnote, she said:

While it is true that the Court may not know the exact scope of the Corps’ error, it is crystal clear that the Corps failed to include reauthorized projects in its impacts analysis as required by 40 C.F.R. § 1508.7. The Court therefore has a duty to set aside the Corps’ action when it evades its NEPA obligation to “adequately consider[] and disclose[] the environmental impact of its actions.” Balt. Gas & Elec. Co., 462 U.S. at 98. Because the Corps failed to comply with the NEPA regulations’ requirements, I would vacate the Corps’ reauthorization of NWP 21 as arbitrary and capricious pursuant to 5 U.S.C. § 706(2)(A).

Story from yesterday (3/23/15)

After first finding that a district court had "abused its considerable discretion" in barring a challenge to nationwide permit 21, the 11th Circuit Court of Appeals agreed that the Corps should go back and "reconsider its conclusion that the environmental impacts of NWP 21 are minimal in light of all of the relevant data" (Black Warrior Riverkeeper v. U.S. Army Corps of Engineers, 14-12357).

Saying the task should take no more than a year, the court also specified that the data must include "the Corps’ recalculated figure for the acreage of waters affected by NWP 21."

The case was brought by Black Warrior Riverkeeper and Defenders of Wildlife.

The appeals court remanded the case to the district court "with instructions to remand the matter to the Corps, and to determine whether any further relief may be required."

The judges on the opinion are Circuit Judges Frank M. Hull and Stanley Marcus, and Amy Totenberg, United States District Judge for the Northern District of Georgia, sitting by designation.


D.C. Docket No. 2:13-cv-02136-WMA (N.D. Ala.)

Mar 202015

March 20 -- Federal judge Ralph Beistline in Alaska has ruled for the Forest Service in a challenge to the 2008 plan for the Tongass National Forest (In Re Big Thorne Project and 2008 Tongass Forest Plan, 14-13-RRB, D. Alaska).

Claims were brought against the Forest Service for violating NEPA and NFMA and the terms of their own forest plan.

Plaintiffs are the Southeast Alaska Conservation Council, Alaska Wilderness League, National Audubon Society, Natural Resources Defense Council, Sierra Club, Cascadia Wildlands, Center for Biological Diversity, Greater Southeast Alaska Conservation Community, Greenpeace, and The Boat Company.

Joining the Forest Service in opposition are the Alaska Forest Association, the State of Alaska, the city of Craig, and
Viking Lumber Inc.


In response to the Ninth Circuit's decision in Natural Resources Defense Council, et al. v. United States Forest Service, et al., the 1997 Forest Plan was subsequently amended through a Record of Decision (“ROD”) issued on January 23, 2008, ("2008 Forest Plan"). Relevant to the present matter, two local species are identified within the 2008 Forest Plan as management indicator species (“MIS”): the Sitka black-tailed deer (“deer”) and the Alexander Archipelago wolf (“wolf”). Using MIS the 2008 Forest Plan requires the Forest Service to “[p]rovide the abundance and distribution of habitat necessary to maintain viable populations of existing native and desirable introduced species well distributed in the planning area.”

[T]he Court finds that USFS's assessment of the timber market demand, including reliance on the Brackley Report and the Morse methodology, was reasonable and does not render the decision approving the Big Thorne project to be arbitrary and capricious.

Plaintiffs argue that a current wolf population estimate for the area was designated as a "critical need” by USFS in the Big Thorne SIR. However, this indication was with regard to the development of a Wolf Habitat Management Plan under the 2008 Forest Plan, not the Big Thorne project. While beneficial, a Wolf Habitat Management Plan is not required by NEPA, NFMA, or even the 2008 Forest Plan prior to a site-specific project.

[T]he Wolf Task Force conclusions do not undermine USFS's determination that current wolf population estimate was not essential. While part of the Wolf Task Force felt that there was a need for additional information, it only recommended USFS consider actions to reduce the risk until that information was available. Moreover, the Court must uphold an agency’s reasonable decision “even if the administrative record contains evidence for and against its decision.” Differing opinions from individuals in sister agencies or even from within the agency do not require deference from USFS in reaching its final determination, nor do they change the Court's review of the final action. USFS fully considered the various viewpoints from the task force and the draft [supplemental information report (SIR)] before reaching its final decision.

USFS not only identified the incomplete and missing current wolf population estimates, but also provided explanation as to why that information was not considered essential to a reasoned choice among the alternatives in the Big Thorne FEIS. USFS has met the regulatory requirements for incomplete information. Therefore, the Court finds that USFS did not violate section 1502.22 of NEPA.

Wolf population sustainability is only provided for in Standard and Guideline WILD1.XIV.A.2, as discussed above. However, the standard and guideline in paragraph A.2 provides for flexibility and discretion. In providing deer habitat capability, USFS is to first look at whether it is possible to provide for sufficient deer habitat capability to maintain sustainable wolf populations. Then USFS is to consider providing enough deer habitat capability to meet human harvest needs. Additionally, the habitat capability to support 18 deer per square mile represents the required density to meet both sustainable wolf populations and all human harvest needs.

Based on the plain language of the 2008 Forest Plan, the deer habitat capability provision is a guideline to ensure consideration and evaluation of deer habitat needs in USFS’s exercise of discretion, not a bare minimum deer density requirement for all agency actions. This interpretation  comports with USFS’s duty to balance conflicting objectives in pursuing its multiple-use mandate under NFMA and the 2008 Forest Plan.

The record reflects that USFS did not disregard or easily dismiss Dr. Person’s statement. On the contrary, project implementation was placed on hold and a task force was convened to thoroughly evaluate the information he raised. The Wolf Task Force acknowledged the concerns raised by Dr. Person, but ultimately concluded that the complex interactions at play in the project area “were evaluated in the USFS EIS and Record of Decision.” Ultimately, USFS utilized a task force and SIR to take a hard look at Dr. Person’s statement and determined that the new impacts he suggested were not significantly different from those already considered, which kept USFS fully compliant with NEPA. The Court finds that USFS’s use of the SIR and determination of no significant new information was appropriate. A SEIS was therefore not required and USFS did not violate NEPA.

The Court finds that the 2008 Forest Plan FEIS did provide sufficient discussion of the impact and effects to the wolf population, including the effects of timber harvest and addressing the cumulative impacts. Additionally, USFS also provided sufficient information and reasonable discussion regarding wolf population viability under the 2008 Forest Plan and was not required to explain how the 2008 Forest Plan would provide for sustainable wolf populations which was not a required agency standard or statutory mandate. The Court finds that the 2008 Forest Plan FEIS discussion was “reasonably thorough” and took the requisite hard look at the environmental consequence consistent with the requirements of NEPA.

Plaintiffs repeatedly draw an incorrect connection between the statutory obligation to preserve a viable wolf population and the deer habitat capability necessary for a sustainable wolf population. As the Court has alluded to earlier in discussing the Big Thorne project, the meaning of a viable population and a sustainable population are distinct and not interchangeable.

In seeking to meet the minimum requirement of viability, the 2008 Forest Plan actually maintains a heightened goal for wolf population: sustainability. Rather than set a minimum floor for the wolf population, the deer habitat capability provision in WILD1.XIV.A.2 sets the high mark for the deer habitat capability USFS wants to meet the needs of wolves and humans alike. The addition of the qualifier “where possible” and inclusion of factors beyond modeling, act to put the plain language of the 2008 Forest Plan in line with the overarching spirit of NFMA. Under the 2008 Forest Plan, the Standard and Guideline WILD1.XIV.A no longer binds USFS to a heightened standard for deer density—that was unattainable, conflicted with competing objectives, and beyond the statutory requirement—but still preserved the agency’s aspirations for future wolf population.

It is clear that Plaintiffs desire the 2008 Forest Plan to include an explicit value for the minimum deer habitat capability necessary to support viability of wolf populations, as well as a numerical value for road density. Indeed, the Court agrees that fixed metrics throughout USFS’s wolf conservation strategy would make future challenges based to timber decisions which impact wolf populations—and their review by the courts—simpler. However, Plaintiffs have not pointed to any specific statutory requirement for such an explicit minimum threshold, nor does this Court find there to be any. This is because “NFMA does not ‘specify precisely how’ the Forest Service must demonstrate that it has met the objectives of the pertinent forest plan. Again, this is congruent with the sort of flexibility necessary to balance the objectives of NFMA.

The Court does not, however, intend for this flexibility to be construed as unenforceability. Agency actions under the 2008 Forest Plan are still subject to evaluation for their impact on wolf population viability and compliance with USFS’s wolf conservation strategy, which do set limits on just how flexible the agency can be. However, in the present case the challenge was for the failure to meet a flexible guideline rather than a statutory requirement. Accordingly, the Court finds that the 2008 Forest Plan does not violate NFMA.

Mar 202015

The Interior Department is holding a teleconference now (when this was written, about 11:30 am) to announce a new rule covering fracking on public lands (link from ESWR).

Here's another link to the rule from DOI.

In the teleconference, Jewell called the rule "common sense" and said it would require operators to disclose the chemicals they use, build sound wells, and successfully handle and dispose of waste water.

Blog post:

As Secretary of the Interior, I am fortunate to oversee American treasures like the Grand Canyon, the Statue of Liberty, and the Everglades. These are places owned by each and every American. They are central to our national character, and it is an honor to support their long-term stewardship for the benefit of all.

As manager of 700 million acres of public subsurface estate and our offshore outer continental shelf resources, it is also my responsibility to oversee a significant portion of American energy production, including oil and natural gas, coal, and renewable resources. Just as much as any national park, these resources belong to each and every American. Their responsible development helps drive our economy and our way of life, and it is my duty to ensure that as they are developed, it is done in a balanced and thoughtful way for the public good.

This is no small task. Last year, lands under the stewardship of the Interior Department produced over 200 million barrels of oil and close to 3 trillion cubic feet of natural gas. There are currently over 100,000 wells on federally managed lands across the country, with close to 3,000 new wells drilled each year. Of wells currently being drilled, over 90 percent use hydraulic fracturing.

As it happens, I have some experience in this business. As a young petroleum engineer, I personally fracked wells in the Oklahoma oil patch. Later in my career, I managed oilfield investments for a regional bank, analyzing risk based on resource and market assessments. So I understand both the risks of development and the potential rewards, if it is done responsibly.

Unfortunately, many of the regulations on the books at the Interior Department have not kept pace with advances in technology and modern drilling methods. Many are the same ones from when I was working on drilling and fracking operations in Oklahoma over 30 years ago. Our decades-old regulations do not contemplate current techniques in which hydraulic fracturing is increasingly complex and is coupled with relatively new horizontal drilling technology in larger-scale operations that reach greater depths.

We need to put in place standards that encourage innovation, that help define the rules of the road for the industry, and that help protect communities. We need to modernize our regulations to make sure they can keep up with evolving technologies.

That is why today the Interior Department is releasing a final rule to update and strengthen regulations governing hydraulic fracturing on public and American Indian lands. The rule is informed by an enormous amount of public input from a transparent, four-year process. It is based on the best advice of experts and engineers as well as community, state and industry leaders.

The rule being released today includes measures to protect our nation’s groundwater – requiring operators to construct sound wells, to disclose the chemicals they use, and to safely recover and handle fluids used in the process. This rule will move our nation forward as we ensure responsible development while protecting public land resources. That is good for the public and good for industry. It is also good government.

As we continue to offer millions of acres of America’s public lands -- your lands -- for oil and gas development, it is critical that the public has confidence that robust safety and environmental protections are in place. Some have already labeled these baseline, proven standards as overly burdensome to industry. Others have said they do not go far enough. I think most Americans would call them common-sense.

While these standards represent an important step, they apply only to activity on public and tribal lands. The majority of oil and gas development remains on state and private lands. So, the responsibility for developing this energy safely must now be taken up in state capitals, engineering labs, and boardrooms all across the country.

If we get this right, we can continue to grow our economy while protecting our water, our air, and our communities. We owe it to our kids and grandkids to do just that.




Mar 192015

U.S. District Judge Richard Leon has upheld the Fish and Wildlife Service's issuance of an incidental take permit for the Buckeye Wind Power Project in Urbana, Ohio (Union Neighbors United v. S.M.R. Jewell, 13-1435 RJL, D.D.C.).

The opinion turns in part on an interpretation of the Section 10 requirement that FWS "minimize" take as much as possible before applying mitigation measures. Leon said the ESA "does not compel" the plaintiff's interpetation.

The opinion follows:

Mar 172015

For about two minutes, we had "AFWA wish list" in the headline. But it is no longer a wish list, as FWS has generously "awarded all the grants" from the Association of Fish and Wildlife Agencies'  Fiscal Year 2015 priority list of wildlife and sport fish conservation projects.

The announcement was made in a Federal Register notice due for publication tomorrow but put on Public Inspection today.

See for more from the FR.

"As required by the Wildlife and Sport Fish Restoration Programs Improvement Act of 2000, AFWA submits a list of projects to us each year to consider for funding under the Multistate Conservation Grant Program," FWS said in the notice.

PR stands for "Pittman-Robertson" and DJ stands for "Dingell-Johnson"

Mar 172015

At 2 p.m. today, St. Patrick's Day. Though the subject has nothing to do with St. Patrick's Day, unless you count green water.

Related: McCarthy speaks to National Farmers Union (coverage by P.J. Griekspoor, Farm Futures)


Panel 1

The Honorable Jeff M. Witte, Director/Secretary, New Mexico Department of Agriculture, on behalf of the National Association of State Departments of Agriculture, Las Cruces, New Mexico

The Honorable Robert ‘Pete’ Smeltz, Clinton County Commissioner, on behalf of the National Association of Counties, McElhattan, PA

Mr. Joseph S. Fox, Arkansas Forestry Commission, on behalf of the National Association of State Foresters, Little Rock, AR

The Honorable Martha Clark Mettler, Deputy Assistant Commissioner, Office of Water Quality, Indiana Department of Environmental Management, on behalf of the Association of Clean Water Administrators, Indianapolis, IN

Panel 2

Ms. Ellen Steen, General Counsel & Secretary, American Farm Bureau Federation, Washington, D.C.

Mr. Jonathan Gledhill, President, Policy Navigation Group, on behalf of the Waters Advocacy Coalition, Annandale, VA

Mr. Russ Biggica, Director of Government, Legislative and Economic Development, Pennsylvania Rural Electric Association (PREA), Harrisburg, PA

Mr. Sledge Taylor, cotton, corn, soybean, wheat, sorghum, and peanut producer, Como, MS

Mr. Steve Foglesong, livestock producer, Astoria, IL

Mar 162015

Here's the quick and dirty. If I had more time, I'd actually try to read the entire decision and give you the lowdown, but the U.S. District Court for D.C. ruled today in a challenge to the use of pesticides and genetically modified organisms in farming on five national wildlife refuges.

Here's the court's summary, which says nothing about the substance of the claims:

[W]ith respect to the NEPA claims regarding the farming of genetically modified crops, the Court DENIES Plaintiffs’ Motion and GRANTS Defendants’ Motion with respect to the Iowa Wetland Management District, and the Court GRANTS Plaintiffs’ Motion and DENIES Defendants’ Motion with respect to the Detroit Lakes Wetland Management District. With respect to the NEPA claims regarding pesticide use, the Court GRANTS Plaintiffs’ Motion and DENIES Defendants’ Motion regarding the use of neonicotinoid pesticides at all five refuges, and the Court DENIES Plaintiffs’ Motion and GRANTS Defendants’ Motion regarding other pesticide use at those refuges. With respect to the Refuge Act claim regarding the updating of the Cypress Creek National Wildlife Refuge Comprehensive Conservation Plan, the Court DENIES Plaintiffs’ Motion and GRANTS Defendants’ Motion.

In sum, the Court GRANTS Plaintiffs’ Motion (and denies Defendants’ Motion) with respect to the use of genetically modified crops at the Detroit Lakes Wetland Management District and with respect to the use of neonicotinoid pesticides but DENIES it (and grants Defendants’ Motion) in all other respects.


Mar 162015

Let's not do the Time Warp again.

That was the message from U.S. District Judge Edward Lodge, who said on March 11 that the Forest Service did not rely on the best available science when it updated its travel management plan (Friends of the Clearwater v. U.S. Forest Service, 13-515 EJL, D. Idaho).

A press release announcing the decision is below. Here's an excerpt:

The Forest Service issued a memo on May 2, 2011 providing its interpretation and reasoning for applying the guidelines for measuring [Elk Habitat Effectiveness] as those used in the Forest Plan to include roads but not motorized trails. (AR5750-51.) The memo discusses the model used in the Forest Plan as being limited to roads and states that although “the model has evolved over the years and now includes factors for trails, the test for Forest Plan standards must be made using the model as it existed at the time of the forest plan. Otherwise the standards in the Plan become a moving target. It is appropriate to utilize the current model to consider trail effects for the purpose of comparing alternatives to each other but not as a test for Forest Plan compliance.” (AR5751.)

Plaintiffs maintain this memo does not satisfy 36 C.F.R. § 219.35(a) because it does not substantively consider the best science found in the 1997 guidelines nor does it discuss science in any form. (Dkt. 38 at 8 n. 10.) Plaintiffs further dispute this conclusion arguing it is “an exercise in management convenience” that fails to satisfy the requirements of NFMA. (Dkt. 38 at 8 n. 10.) Plaintiffs assert that once the Forest Service became aware of the 1997 Guidelines they were required to either 1) alter the Travel Plan or 2) amend the Forest Plan. (Dkt. 38 at 7 n. 9.) The Court agrees with the Plaintiffs.

To accept the Forest Service’s conclusion would be to allow analysis and reasoning be made in a time-warp as if nothing has changed since 1987 when the guidelines for measuring the very data at issue have clearly and undisputably changed. While the Court agrees that generally data should be measured using the same yardstick, the Forest Service here takes that logic too far in order to conclude that the Travel Plan complies with the Forest Plan.

Judge rules in favor of plaintiffs against agency travel plan


March 12, 2015

Contacts: Gary Macfarlane or Brett Haverstick, Friends of the Clearwater (208) 882-9755

Al Poplawsky, Palouse Group-Sierra Club (208) 669-1065
Mike Garrity, Alliance for the Wild Rockies (406) 459-5936
Dave Bahr, Bahr Law Offices (541) 556-6439

MOSCOW, ID-Yesterday afternoon, the honorable Judge Edward Lodge ruled on the legal challenge brought forth by Friends of the Clearwater, Palouse Group-Sierra Club and Alliance for the Wild Rockies on the Clearwater National Forest Travel Plan. The plaintiffs challenged the sufficiency of the federal agencies’ analysis and the lack of compliance with executive orders on minimizing off-road vehicle impacts. Judge Lodge ruled that the Forest Service failed to adequately protect wildlife habitat and, indeed, had not minimized impacts from off-road vehicles.

Attorney for the groups, David Bahr, said, “We are pleased that the judge agreed with us that the travel plan does not use the best available science to protect elk and does not minimize motorized use impacts as the law requires.”

The 38-page ruling clearly addresses the failings of the Forest Service’s decision. The plaintiffs believe that the ruling will result in greater protection for wildlands and wildlife on the Clearwater National Forest.

Gary Macfarlane, of Friends of the Clearwater, stated, “This is great news for the public wildlands on the Clearwater National Forest. Places like Cayuse Creek and Fish & Hungery Creeks deserve protection and the ruling reflects that.”

“This is an important ruling for wildlife in the Clearwater. Wildlife habitat needs to be adequately protected from motorized intrusion, whether its via roads or trails,” added Al Poplawsky with the Palouse-Group Sierra Club.

Judge Lodge ruled that the agency did not use the best available science in making its decision, as outlined in the 1997 Interagency Guidelines for Evaluating and Managing Elk Habitats and Populations in Central Idaho.

The Forest Service needs to implement the best available science in measuring off-road vehicle impacts to species like elk,” said Brett Haverstick with Friends of the Clearwater. “The agency failed to apply the appropriate measures in order to comply with 100% Elk Habitat Effectiveness.”

Besides negative impacts to terrestrial species like elk, plaintiffs were also concerned about off-road vehicle impacts to aquatic species on the forest.

“Thanks to the members of Friends of the Clearwater for working hard to bring stronger protections to Clearwater Country,” said Mike Garrity with the Alliance for the Wild Rockies. “It’s important that the Forest Service follow the law and protect critical habitat for species like bull trout, too.”

Mar 162015

Environmental groups in North Carolina have won a court challenge to the Garden Parkway, a proposed 21-mile toll highway project near Charlotte. (Order)

The Federal Highway Administration and North Carolina DOT "violated [the National Environmental Policy Act] and the [Administrative Procedure Act] by using the same set of socioeconomic data that assumed construction of the Garden Parkway to assess the environmental impacts of the Build and No Build alternatives," U.S. District Judge James Dever said (Catawba Riverkeeper Foundation and Clean Air Carolina v. N.C. Dep't of Transportation, 15-29-D, E.D. N.C.).

"The ruling comes after the legislature has stripped the nearly $1 billion road of its earmarked funding. Construction of the project is now extremely unlikely," the Southern Environmental Law Center, which represented the plaintiffs, said.

Dever relied heavily on a Fourth Circuit decision, North Carolina Wildlife Federation v. North Carolina Dep't of Transportation, 677 F.3d 596 (4th Cir. 2012), in which, Dever said, "the Fourth Circuit strongly suggested that assuming the construction of the proposed project when analyzing the No Build baseline was clear error." 677 F.3d at 603.

Said the judge:

"In sum, defendants made an unsupported assumption that growth in the Metrolina region would remain constant regardless of whether the Garden Parkway was built. In so doing, they failed to take a "hard look" at the environmental impacts of the proposed Garden Parkway and violated NEPA and the APA by preparing an inadequate EIS. Accordingly, the court grants plaintiffs' motion for summary judgment and vacates the Record of Decision for the Garden Parkway project."

He denied the groups' motion for injunctive relief, but said he "expects defendants to comply with all applicable regulations, including, should they choose to move forward with the project, the issuance of a supplemental EIS that corrects the above-discussed error by constructing an appropriate No Build scenario, with socioeconomic data that do not assume construction of the Garden Parkway, and also a new Record of Decision, before taking any action that would violate section 1506.1. Should defendants take actions inconsistent with this order, the court will reconsider whether to issue an injunction."

Mar 122015

Eleven scientists are worried that conservation measures being considered for the greater sage-grouse are not protective enough.

In a letter to Interior Secretary Sally Jewell and Agriculture Secretary Tom Vilsack, they said:

We are concerned that federal agencies appear to be abandoning science-based conservation measures reflected in the published scientific literature as well as in the [National Technical Team Report] in favor of more elastic, subjective measures identified in the U.S. Fish and Wildlife Service’s Conservation Objectives Team Report (COT Report). The COT Report adequately identifies the threats to sage-grouse populations, but it does not include adequate conservation measures to address these threats. This report was largely a review of previously published information. It also introduced ambiguous concepts (representation, redundancy, and resilience) to guide conservation actions. Unfortunately, these parameters are not measured by state wildlife agencies when assessing sage-grouse populations (in fact, no information was provided on how to measure them or even if they could be adequately measured), and their use may further confuse the issue. Thus, the COT Report cannot reasonably serve as either a guide or gauge for planning and assessing the adequacy of federal sage-grouse conservation plans.

Letter follows: