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.

Sep 302014

The Bureau of Land Management must look closely at the impact of grazing on greater sage-grouse, U.S. District Judge B. Lynn Winmill ruled Monday, Sept. 29 (Western Watersheds Project v. Jewell, 08-435-BLW, D. Id.).

Western Watersheds Project called the decision a “big win” and said it’s significant for a few reasons.

Judge Winmill found that the BLM violated the National Environmental Policy Act (NEPA) by failing to properly disclose the cumulative impacts of its decisions and by failing to consider ending grazing on the allotments in any of the alternatives to proposed management,” WWP said in its press release.

Moreover, Judge Winmill ruled that the BLM must include mandatory terms and conditions to protect sage-grouse, including specific restrictions to address such things as stubble height, stream bank alteration, and utilization. Voluntary measures will not serve.”

The judge also said BLM cannot avoid evaluating grazing permits under the Federal Land Policy and Management Act, notwithstanding the passage of a congressional rider that exempts permit renewals from NEPA review.

“While § 325 [the congressional rider] tolls the BLM’s obligation to proceed with environmental obligations imposed by laws like NEPA, it carves out an exception for FLPMA and requires a continuing obligation to follow that statute,” Winmill wrote.

“BLM is still obliged to consider ongoing environmental degradation and comply with the Fundamentals of Rangeland Health,” said WWP. “This is an important precedent because the BLM has a bad habit of allowing harmful status quo grazing to continue while it defers NEPA analysis.”

Winmill did not halt grazing while BLM “makes the changes dictated by this decision.”


Cumulative impacts  Page 14

“The cumulative impacts analysis in the EA at issue in round two suffers from the same flaws. Once again the sage grouse habitat is degraded – three of the four allotments violated the FRH Standard 8, the Sensitive Species Standard. The cumulative impacts section contains no real discussion of the conditions of sage-grouse in these surrounding allotments.

“This failure is all the more acute because, as will be discussed further below, the BLM is avoiding environmental reviews for many permit renewals. For permits renewed under the 2003 grazing rider, the BLM has taken the position that it need not do any NEPA or FLPMA review. The BLM has now renewed over 150 permits under the rider without any environmental review. The effect of unexamined permit renewals in the area would be critical to determining cumulative impacts.

“The Court recognizes that it must scour the entire EA to determine if the cumulative impact analysis could be enhanced by reading the EA in its entirety and not just focusing on the section labeled “Cumulative Impacts.” See Ctr. for Envtl. Law & Policy v. U.S. BOR, 655 F.3d 1000 (9th Cir. 2011). But the necessary cumulative impacts discussion cannot be found anywhere in the EA.

“For all of these reasons the Court finds that the EA evaluating the four allotments at issue here violated NEPA by failing to contain an adequate cumulative impacts analysis.

NEPA – Failure to Consider Alternatives Including No-Action Alternative Page 15

“This Court held in its decision on the first round of motions that the failure to consider alternatives to the existing grazing levels, and the failure to evaluate a no-grazing alternative, violates NEPA. WWP v. Salazar, supra.

“In this case, the EA failed to identify reasonable alternatives. The existing grazing levels were contributing to sage grouse habitat degradation and yet the EA evaluated no alternative that would have reduced grazing levels and/or increased restrictions on grazing. The Ninth Circuit has recently struck down a NEPA analysis where each alternative permitted grazing at the same level. WWP v. Abbey, 719 F.3d 1035 (9th Cir. 2013). For the same reason, the EA in this case violated NEPA.”

Grazing rider – page 18

The parties identify 9 permits that were renewed under the terms of the 2003 grazing rider contained in § 325 of Public Law 108-108. All of these permits govern grazing on allotments outside the Jim Sage allotments. The BLM’s Burley Field Office has used the grazing rider to renew grazing permits without doing any NEPA or FLPMA review in 168 of 200 allotments since 2005.

More quotes from decision

Winmill noted that BLM’s 2001 Special Status Species Policy requires that “sensitive” species “be afforded, at a minimum, the same protections as candidate species for listing under the ESA, and makes BLM Field Office managers responsible for implementing the policy.” (page 7)

Greater sage grouse populations have been declining for at least 25 years. The 2004 Conservation Assessment, prepared by the leading scientific experts, concluded that every major metric in sage grouse population abundance has declined over the last 50 years. The declining populations are occurring as sage brush habitat disappears. The leading experts concluded in the Idaho Conservation Plan that “[t]he loss and fragmentation of sage-grouse habitat in some parts of Idaho are of major concern.” See Conservation Plan at p. 3-3. The top four causes of this habitat loss and fragmentation in Idaho are (1) wildfire, (2) infrastructure, (3) annual grasses, and (4) livestock impacts. Id. at p. 4-3.” (page 6)


Sep 252014

Update (Sept. 26): Judge Jackson has given the federal government and plaintiffs in the case until Monday to respond to the state’s request. Here’s the docket entry for her order, issued Sept. 26:

MINUTE ORDER. It is ORDERED that the federal defendants shall respond to the State of Wyoming’s September 24, 2014 motions by 2:00 p.m. Eastern time, Monday, September 29, 2014. The response to the motion to alter judgment [69] shall address the question of whether a Rule 59(e) motion can properly be based on “new evidence” in an Administrative Procedures Act case, which necessarily involves the review of an agency decision based upon the administrative record that was before the agency at the time the decision was made. The response shall also address whether the new evidence cited by the State can be found to be “not previously available” when the state could have acted at any point prior to the issuance of the Court’s opinion. It is further ORDERED that plaintiffs shall address these issues in the response they have indicated they plan to file by 2:00 p.m., September 29, 2014. Finally, the State of Wyoming may file an additional submission responding to these questions by 2:00 pm, September 29, 2014., if it chooses to do so. Signed by Judge Amy Berman Jackson on 9/26/14. (DMK)

Attempting to regain management of gray wolves, Wyoming has asked federal judge Amy Berman Jackson to amend her opinion finding that the Fish and Wildlife Service had improperly relied on what amounted to promises by the state when FWS delisted the wolf in Wyoming in 2012.

In a motion to alter or amend, the state pointed to an emergency rule adopted by the Wyoming Game and Fish Commission yesterday, shortly after Jackson’s opinion was issued, and “hold that the state’s existing wolf management scheme satisfies the requirements for delisting under the Endangered Species Act” (Defenders of Wildlife v. Jewell, 12-133, D.D.C.).

The commission “adopted an emergency rule to give the Gray Wolf Management Plan and the Addendum [to that plan] the status of commission rules with the force and effect of law,” the state said in its court filing. “This emergency rule took effect when it was filed with the Wyoming Secretary of State on September 24, 2014.”

Emergency rules can remain in effect for a maximum of 240 days, but the state said the commission “expects to have the permanent rule in place by mid-November before the emergency rule expires.”

Said the state:

The emergency rule also impacts this court’s analysis of the adequate regulatory mechanisms issue. This court set aside and vacated the 2012 Wyoming delisting rule because this court believes the Wolf Management Plan and the Addendum are not legally enforceable. (Doc. 68 at 23, 26) The emergency rule makes the Wolf Management Plan and the Addendum commission rules and, as such, they have the force and effect of law. See Johnson v. City of Laramie, 2008 WY 73, ¶7, 187 P.3d 355, 357 (Wyo. 2008) (in Wyoming, “[p]roperly promulgated rules and regulations have the force and effect of law”). As a result, the legal basis for this court’s decision to set aside and vacate the 2012 Wyoming delisting rule no longer exists.

The effect of the ruling was to prevent any hunting of wolves in Wyoming. As WGFD director Scott Talbott noted in a news release Sept. 23, “Today, we want all wolf hunters and landowners to know that the take of wolves in Wyoming – hunting and lethal take provisions in Wyoming statute – are suspended because of the federal court ruling.”

The environmental plaintiffs are expected to oppose the motion. Earthjustice attorney Tim Preso told Greenwire, “Wyoming’s sudden and strategic acceptance of the need for regulatory wolf protections does not justify any change in the court’s judgment. We will explain that to the court.” Preso represents Defenders of Wildlife, Sierra Club, Natural Resources Defense Council and Center for Biological Diversity. The Humane Society and Fund for Animals filed a separate case, which has been consolidated with the Defenders lawsuit.


ESWR story (9/24)

Wyoming reacts (press release from WGFD)

Sep 242014

Two projects calling for prescribed burns, timber harvesting and thinning in the Flathead National Forest stayed on track after the Ninth Circuit said environmental groups did not present enough evidence to warrant halting them (Friends of the Wild Swan v. Weber. 13-35817, and Friends of the Wild Swan v. Christiansen, 13-35819).

Technically, the appeals court affirmed a district court judge’s rejection of a request for injunctive relief to stop the neighboring projects — the Spotted Bear River Project and the Soldier Addition II Project.

The district court decisions are Friends of the Wild Swan v. Weber, 955 F. Supp. 2d 1191 (D. Mont. 2013) and Friends of the Wild Swan v. Christiansen, 955 F. Supp. 2d 1197 (D. Mont. 2013).

In each case, the plaintiffs claimed that the Forest Service violated the National Environmental Policy Act, the National Forest Management Act and the Endangered Species Act. Species adversely affected by the projects include the westslope cutthroat trout, grizzly bear, Canada lynx, and bull trout, the groups said.

The selection of particular geographic areas for considering cumulative effects on lynx “was neither arbitrary nor capricious, and Wild Swan has not demonstrated a likelihood of success or serious questions
going to its NEPA claim with respect to lynx,” the court said. It reached a similar conclusion with regard to the effects on grizzlies.

Regarding fisheries, the court said, in part:

Wild Swan correctly points out that the EAs did not specifically consider the impact to the main channel of South Fork if the “worst-case” scenario for both projects occurred and delivered sediment to the main channel simultaneously. However, even assuming Wild Swan has shown a possibility of success on this issue or at least serious questions on the merits, we nonetheless affirm the denial of the preliminary injunction because Wild Swan has not established a likelihood of irreparable harm to the fisheries in the absence of an injunction. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (“[P]laintiffs must establish that irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.”). Both [Environmental Assessments] indicate it is highly unlikely that the “worst-case scenario” event (intense storm following prescribed burn) for either project would ever occur because of the seasonal timing of the burns, and thus it appears doubly unlikely that all potential sediment discharge from both projects would occur simultaneously.



Wolves in Wyoming back on the list

 Posted by on September 24, 2014
Sep 242014

Gray wolves in Wyoming are back on the endangered species list after a federal judge in Washington, D.C., said the Fish and Wildlife Service could not “rely on nonbinding and unenforceable representations when it concluded that the state’s plan was adequate to ensure that the state will in fact maintain the necessary number of breeding pairs and individual wolves” (Defenders of Wildlife v. Jewell, 12-1833 ABJ, D.D.C.).

U.S. District Judge Amy Berman Jackson’s opinion

Said Jackson:

“This opinion does not go so far as to hold that the FWS may not ever consider nonbinding statements as part of the mix when assessing the adequacy of a set of regulatory mechanisms as a whole; it finds that it was unreasonable in this instance for FWS to determine that it was necessary for Wyoming to manage for more than ten breeding pairs and 100 wolves as a condition for delisting but then accept a plan that did not commit to that.”

Earthjustice, et al. press release on decision

More coming on this story…

Excerpts from opinion:

Since the decision to delist is expressly premised on the state’s intention to manage to maintain a buffer above 10/100, the next question for the Court to resolve is whether it was proper for FWS to rely on nonbinding and unenforceable representations when it concluded that the state’s plan was adequate to ensure that the state will in fact maintain the necessary number of breeding pairs and individual wolves.

In this case, the agency did not merely consider the nonbinding statements in the Addendum as one aspect of the state’s overall regulatory scheme: two out of five of the original peer reviewers found the regulatory mechanisms to be inadequate in the absence of a buffer, and the Addendum was submitted by the state in response. The record reflects that FWS specifically relied on the representations in the Addendum as the basis for its conclusion that Wyoming would do what the agency had determined that it must do: manage above the 10/100 minimum. The Court finds that under those circumstances, the reliance on mere assurances was inappropriate, and it rendered the FWS decision arbitrary and capricious. This opinion does not go so far as to hold that the FWS may not ever consider nonbinding statements as part of the mix when assessing the adequacy of a set of regulatory mechanisms as a whole; it finds that it was unreasonable in this instance for FWS to determine that it was necessary for Wyoming to manage for more than ten breeding pairs and 100 wolves as a condition for delisting but then accept a plan that did not commit to that. See Colorado River Cutthroat Trout v. Salazar, 898 F. Supp. 2d 191, 207–08 (D.D.C. 2012) (“while the FWS cannot rely on promised and unenforceable conservation agreements in evaluating regulatory mechanisms . . . its consideration of the Conservation Strategy as part of its overall assessment of ongoing management practices is not inappropriate.”). Accordingly, the Court holds that the Service’s determination that Wyoming’s regulatory scheme was adequate under the ESA was arbitrary and capricious.

Footnote 8: In Greater Yellowstone Coalition, Inc., v. Servheen, 665 F. 3d 1015, 1030–31 (9th. Cir. 2011), the plaintiffs raised concerns similar to those here that the Service had relied upon too many measures that were not legally binding when delisting the grizzly bear. But the court declined to reach the question of whether a voluntary, unenforceable measure could constitute a “regulatory mechanism” under §1533(a)(1)(D); instead it ruled that even if the Service’s consideration of the voluntary and unenforceable components of the multi-state conservation plan was error, the determination could be upheld based upon legally binding components alone. That option is not available here since the delisting decision depends expressly upon the state’s commitment to manage above the 10/100 minimum number.


Wyoming wolf delisting challenged in federal court (EJ release, 12/17/13)

FWS gray wolf page

Service Declares Wyoming Gray Wolf Recovered Under the ESA and Returns Management Authority to the State (8/31/2012)

Sep 192014

The Fish and Wildlife Service said the Delmarva fox squirrel has recovered enough to justify its removal from the list of endangered species.

DOI Secretary Sally Jewell made the announcement today (Sept. 19), calling the pending proposal “a perfect example of how the Endangered Species Act works not only to pull plants and animals back from the brink of extinction but can also provide flexibility to states and private landowners to help with recovery efforts while at the same time supporting important economic activity.”

The squirrel was one of the first species to be listed under the ESA. In fact, it was listed in 1967 under the act’s predecessor, the Endangered Species Preservation Act.

It did not take long for the Center for Biological Diversity to take issue with Jewell’s rosy pronouncement.

CBD said Climate Change would result in the inundation of half of the squirrel’s habitat.

Here’s FWS’s tweet and one from ESWR after the center posted its press release:

FWS news release (text reprinted below)

ECOS profile for the squirrel

News release

Secretary Jewell Announces Conservation Success Story
in Recovery of Delmarva Fox Squirrel

Delmarva Fox Squirrel Now Proposed for Removal from Endangered Species List;
Near Half Decade of Conservation Efforts by Landowners, Other Partners Key to Rebound

September 19, 2014


Jessica Kershaw (DOI),
Megan Racey (FWS), 413-253-8558

CAMBRIDGE, Md. – Secretary of the Interior Sally Jewell today announced that due to concerted conservation efforts by landowners and other partners, the Delmarva Peninsula fox squirrel, one of the animals included on the first list of endangered species nearly a half century ago, has recovered across many parts of its historic range and the U.S. Fish and Wildlife Service is proposing to remove it from the Endangered Species List.

“The Delmarva fox squirrel is a perfect example of how the Endangered Species Act works not only to pull plants and animals back from the brink of extinction but can also provide flexibility to states and private landowners to help with recovery efforts while at the same time supporting important economic activity,” Secretary Jewell said. “This success story is the result of a partnership with several state wildlife agencies, conservation groups, landowners and countless other stakeholders working hand in hand with U.S. Fish and Wildlife Service biologists to protect the Delmarva fox squirrel. This is a model for how the Act is designed to work.”

“Today’s announcement shows that through dedication, hard work and successful partnerships, together, we can accomplish great things,” said Maryland Governor Martin O’Malley. “Not only did federal and state agencies join forces, the citizens of Maryland and Delaware were also paramount to the recovery of the Delmarva fox squirrel, providing habitat for the endangered species on their own private land.”

The ESA has been successful in conserving imperiled wildlife, preventing the extinction of more than 99 percent of the species listed as threatened or endangered since 1973. In addition, 29 species have been delisted due to recovery, including the bald eagle, American alligator and peregrine falcon. Others, such as the whooping crane and the California condor, have been pulled back from the edge of extinction. Under the ESA, a species is considered endangered when it is at risk of extinction throughout all or a significant portion of its range. It is considered threatened when it is at risk of becoming endangered throughout all or a significant portion of its range.

“This not-so-little squirrel is emblematic of the big things possible when we work together to realize our commitments to restoring the health of the Chesapeake Bay’s ecosystem for fish, wildlife, and people too,” said U.S. Senator Ben Cardin, Chairman of the Senate Environment and Public Works Water and Wildlife Subcommittee. “A combination of coordinated conservation efforts among our farmers, private foresters, public land managers and field biologists made this effort a success. When we replicate this process of partnership, and coordinate conservation action over and over again, our communities and ecosystems across the watershed will benefit tremendously.”

Larger than other squirrel species and generally not found in urban areas, the Delmarva fox squirrel ranged throughout the Delmarva (Delaware, Maryland, Virginia) Peninsula before experiencing a sharp decline in the mid-20th century due to clearing of forest for agriculture and development, short-rotation timber harvest and over-hunting. With its range reduced more than 90 percent, the squirrel was one of 67 species listed under the Endangered Species Preservation Act in 1967, the predecessor law of the Endangered Species Act, which was enacted six years later. With more than 80 percent of this squirrel’s home on private land, Delmarva residents played a major role in the recovery of this species with many providing habitat for squirrels on private lands across the range. The squirrel has thrived on the rural, working landscapes of the peninsula where mature forests mix with agricultural fields.

“The Delmarva fox squirrel joins the bald eagle, the peregrine falcon and the American alligator as symbols of ESA recovery success,” added U.S. Fish and Wildlife Service Director Dan Ashe. “The recovery of this ‘class of ‘67’ species marks a major milestone in decades of endangered species recovery efforts. We thank our conservation partners, particularly the private landowners and state wildlife agencies, whose continued commitment to the species will ensure it continues to thrive.”

Since listing, the squirrel’s range has increased from four to 10 counties, with a current population of up to 20,000 squirrels covering 28 percent of the Delmarva Peninsula. Efforts contributing to recovery include translocation of animals to establish new populations, closing of the targeted hunting season, growth and dispersal of the population, and protection of large forested areas for habitat.  The Blackwater (Maryland), Chincoteague (Virginia) and Prime Hook (Delaware) national wildlife refuges provide unique opportunities to see this animal.

“Delaware biologists have worked hard to improve much-needed habitat that has helped the fox squirrel move from imminent risk of extinction to recovery,” said Delaware Department of Natural Resources and Environmental Control (DNREC) Secretary David Small. “While the species is still rare in Delaware with only two known populations, DNREC’s Division of Fish and Wildlife will continue to advance its management and conservation plan aimed at making the species common enough in Delaware to be removed from the state’s endangered species list as well.”

“In the past seven years, the Virginia Department of Game and Inland Fisheries has set the stage for expanding native Delmarva fox squirrel populations on Virginia’s Eastern Shore by identifying suitable translocation sites that meet the squirrel’s ecological needs,” said David Whitehurst, Director of the Virginia Bureau of Wildlife Resources. “The federal delisting of the species will ease the process of performing future translocations in the state and will help garner interest among private landowners with established habitat to have squirrels released on their lands.  We commend the U.S. Fish and Wildlife Service on its decision to delist the species and look forward to assisting with continued efforts to increase fox squirrel populations throughout the Delmarva Peninsula.”

The Service followed a rigorous and detailed process to assess Delmarva fox squirrel’s extinction risk in its 2012 five-year review, which recommended delisting the species because it is no longer in danger of extinction. The review focused on new information obtained since a 2007 five-year review, analyzed the status of the populations, habitat and threats, and considered the delisting criteria from the 1993 recovery plan (PDF). The proposed rule further describes this analysis and will be available for public comment from Tuesday, September 23, 2014, to November 24, 2014 at, under docket no. FWS–R5–ES–2014–0021. The proposal will be available September 22 at

The species remains protected under the ESA until the Service reviews all public comments on its proposal and makes a final decision to remove the species from the List of Threatened and Endangered Wildlife. If the Delmarva fox squirrel is delisted, a post-delisting monitoring plan would ensure the squirrel remains secure from extinction.

More information on the Delmarva fox squirrel can be found through the following resources:


# # #

Sep 172014

See ESWR‘s Federal Register page for more

Public Inspection (scheduled for publication in FR)

FWS says listing Eriogonum kelloggii (Red Mountain buckwheat) and Sedum eastwoodiae (Red Mountain stonecrop) is not warranted at this time.  Species were first identified as candidates in 1975 and 1980, respectively. They occur in Mendocino County, California.

“[T]he location, distribution, and abundance of E. kelloggii and S. eastwoodiae populations coincide with their known historical distribution and have remained stable relative to their distribution over at least the past 30 years. Both species have a relatively long lifespan, and thus their stable distribution and the persistence of the populations over time (1975–2014) allow us to predict to some degree their persistence into the future. We have determined that the risk of threats acting on these populations are minimal: the fire frequency for the area is low (2 recorded and one unrecorded fire over the past 90 years) and the impacts of those fires have been minimal due to the open nature of the habitat being less prone to intense habitat destruction (Service 2014, pp. 23–25). OHV use has decreased due to the designation of the area as ACEC and Wilderness. Mining interests have also greatly diminished due to numerous factors and no existing claims are currently active or anticipated in the future.”

Listing S. georgianum (Georgia aster) is not warranted, FWS concludes

FWS releases CCP and EA/FONSI for the Rose Atoll National Wildlife Refuge

FWS releases CCP and EA/FONSI  for the Sonny Bono Salton Sea National Wildlife Refuge (NWR) Complex, which includes the Sonny Bono Salton Sea NWR and Coachella Valley NWR.

NMFS issues Incidental Harassment Authorization (IHA) to Glacier Bay National Park to take marine mammals, by Level B harassment, incidental to conducting seabird monitoring and research activities in Alaska, September 2014.

Forest Service is preparing the El Yunque National Forest’s revised land management plan (forest plan) and will also prepare an EIS for this revised forest plan

Sep 112014

A challenge to development of part of the Rosebud Mine in Montana has been rejected as unripe by the Ninth Circuit Court of Appeals (Montana Environmental Information Center (MEIC) and Sierra Club v. Stone-Manning, 13-35107).

The circuit judges on the panel were Diarmuid F. O’Scannlain, Andrew J. Kleinfeld and Marsha S. Berzon. O’Scannlain wrote the opinion. The named defendant is Tracy Stone-Manning, director of the Montana Department of Environmental Quality.

According to a summary prepared by court staff, the panel “held that the plaintiffs lacked standing, and their claims for declaratory and injunctive relief were not ripe. The panel concluded that the plaintiffs’ alleged injury was not imminent because, even assuming arguendo that the Director would not do a proper cumulative hydrologic impact assessment under the Act, the plaintiffs’ allegations did not establish a substantial risk that the Director would grant the permit application at all. Without deciding whether the firm prediction rule applied under the circumstances of this case, the panel held that the rule’s standards for ripeness were not met because the panel could not make a firm prediction that the Director would grant the mining permit application.”

“Even if we assume that MEIC can bring this suit on behalf of its members, see Laidlaw, 528 U.S. at 181, its members do not have standing. They have not suffered an ‘actual or imminent’ injury in fact. Id. at 180,” the court said, adding in the next sentence, “Analyzing the sufficiency of MEIC’s complaint under the constitutional ripeness standard yields the same answer for
the same reasons.”


Western Environmental Law Center page

WELC press release on filing of lawsuit  | Complaint


Sep 112014

A GAO review of 203 rules classified as “major,” “significant” and “economically significant” found that the federal agencies could do a better job of explaining why those classifications were justified. (Full report) (HTML)

From a summary of the report, issued Sept. 11:

GAO’s review also found that for the majority of the 109 significant rules reviewed, the rulemaking process is not as transparent as it could be. This is because 72 percent of these rules included no language to explain why the rule was designated as significant. Some agency officials indicated that the Office of Management and Budget’s Office of Information and Regulatory Affairs did not always provide a reason for changing a rule’s designation to significant. The rulemaking process could be more transparent if significance designations were explained and communicated.

GAO “reviewed 109 significant rules and 57 economically significant rules. Estimates of these populations are based on these sample data and are subject to sampling error. To supplement the rule review and to answer our second objective, we conducted roundtable discussions with 17 of the 32 independent We also reviewed the population of all 37 major rules issued by independent regulatory agencies within the same time frame.”

Included in the review were the following rules:


Revision of critical habitat designation for the Southwestern Willow Flycatcher, 78 Fed. Reg. 344

Migratory Bird Hunting; 2011-12 Migratory Game Bird Hunting Regulations, 76 Fed. Reg. 58,682

Migratory Bird Hunting; 2011-12 Migratory Game Bird Hunting Regulations, 76 Fed. Reg. 59,271

Migratory Bird Hunting; 2012-2013 Migratory Game Bird Hunting Regulations, 77 Fed. Reg. 58,444

Migratory Bird Hunting; 2012-2013 Migratory Game Bird Hunting Regulations, 77 Fed. Reg. 58,628

DOI Bureau of Safety and Environmental Enforcement

Increased Safety Measures for Oil and Gas Operations on the Outer Continental Shelf, 77 Fed. Reg. 50,856


High Seas Driftnet Fishing Moratorium Protection Act; Identification and Certification Procedures to Address Shark Conservation, 78 Fed. Reg. 3338

Revision of Critical Habitat Designation for the Endangered Leatherback Sea Turtle, 77 Fed. Reg. 4170


Regulation To Establish No-Discharge Zone in California State Waters Under CWA 312(f)(4)(A), 77 Fed. Reg. 11,401

Sep 112014

FWS has revised its critical habitat designation for Canada lynx, and changed the Distinct Population Segment boundaries to “where found” in the lower 48. The service took the actions to comply with a couple of settlement agreement. See for the relevant Federal Register notices, filed on Public Inspection.

FWS also has listed as threatened a plant from Georgia and Alabama — Georgia rockcress. The service also designated 723 acres in the two states as critical habitat for the plant. Go to the same link above for FR notices.

Lastly, today’s date makes me think of Rich Guadagno, a Fish and Wildlife Service wildlife refuge manager (and enforcement agent) who was on Flight 93. Click the link for a two-year-old piece I posted on this website.

Rich Guadagno (from

Some more links

USFWS remembers Rich Guadagno

United Flight 93 heroes

National Park Service link

San Francisco Bay Area Flight 93 memorial page

Jacksonville father remembers son killed in 9/11 attacks (by Lewis Turner)

Sep 102014

Thirty-five Democrats joined 227 Republicans in approving a bill (H.R. 5078) to block an EPA/Corps proposal to define “waters of the United States” under the Clean Water Act. The final vote was 262-152.

One Republican, Chris Smith of New Jersey, voted against the bill, which will give its supporters the ability to claim in their re-election campaigns that they are looking out for farmers and others who say the proposed regulation would hurt them economically. A similar bill introduced in the Senate by Sen. John Barrasso (R-Wyo.) has 38 co-sponsors.

Many of the Democrats backing the bill are not normally considered environmentalists, but some, like Rep. Sam Farr (D-Calif.), are usually found on the green side of such issues. Farr has a lifetime 95 percent score from the League of Conservation Voters.

Adam Russell, spokesman for the congressman, said in an email that Farr “is a strong supporter of good environmental policy and smart environmental regulations. His vote on this bill was an attempt to compel competing interests to find a middle ground on a long standing dispute. That matter has been deadlocked for years. A vote on this bill was the only way to advance the issue so the two rival camps would have a legislative vehicle to act upon and move toward consensuses. Regulations that satisfy only one camp and a bill that satisfies only another is not the answer. We have to move to the middle.”

Specifically, the legislation prohibits either agency from “developing, finalizing, adopting, implementing, applying, administering, or enforcing

(i) the proposed rule described in the notice of proposed rule published in the Federal Register entitled `Definition of `Waters of the United States’ Under the Clean Water Act’ (79 Fed. Reg. 22188 (April 21, 2014)); or

(ii) the proposed guidance submitted to the Office of Information and Regulatory Affairs of the Office of Management and Budget for regulatory review under Executive Order 12866, entitled `Guidance on Identifying Waters Protected By the Clean Water Act’ and dated February 17, 2012 (referred to as `Clean Water Protection Guidance’, Regulatory Identifier Number (RIN) 2040-ZA11, received February 21, 2012); or

(B) using the proposed rule or proposed guidance described in subparagraph (A), any successor document, or any substantially similar proposed rule or guidance, as the basis for any rulemaking or decision regarding the scope or enforcement of the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.).”


Barrow (GA)
Bishop (GA)
Green, Gene
Hastings (FL)
Kelly (IL)
Negrete McLeod
Scott, David
Thompson (MS)