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.

Aug 262015
 

Earthjustice press release:

A federal judge today refused a request by a coalition of California Central Valley agribusiness and irrigators to turn off the water in northern California’s Trinity River. The Trinity is a tributary of the Klamath River, where major salmon runs are currently facing the threat of a major fish kill due to the drought.

Source: Judge Rejects Latest Water Grab on California's Trinity River

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NOAA releases climate science strategy

 Posted by on August 25, 2015
Aug 252015
 

The National Marine Fisheries Service, also known as NOAA Fisheries, has released its first climate science strategy, which says that "without adequately incorporating climate change, NOAA Fisheries conservation and management efforts are likely to be ineffective, produce negative results, or miss opportunities."

Press release  ||  Full report

The strategy "identifies seven key steps to increase production, delivery, and use of climate-related information to support the management of fish stocks, fisheries, and protected species," NMFS said. "The steps focus on how a changing climate affects living marine resources, ecosystems, and the communities that depend on them, and how to respond to those changes."

Excerpts:

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Aug 242015
 

Aug. 24 -- The Environmental Protection Agency's search for communications on its Pebble Mine deliberations complied with the Freedom of Information Act, a federal judge ruled today (Pebble Limited Partnership v. U.S. EPA, 14-199-HRH, D. Alaska).

"The court finds that the EPA’s search parameters were adequate and the search has been ongoing," U.S. District Judge H. Russel Holland said in his 7-page order.

He added, however, that he would examine disputed documents in camera -- in his chambers -- to determine which, if any, portions of them should be released. He will first look at 118 documents that are the subject of a production request in a different case filed by Pebble (but also overseen by Holland) alleging violations of the Federal Advisory Committee Act.

"The court supposes that there will surely be a substantial number of documents as to which defendant claims FOIA Exemption 5. Therefore, counsel shall confer and, no later than the date on which documents are to be delivered to the court in camera for review, propose a briefing schedule for resolution of the FOIA Exemption 5 claims."

Exemption 5 covers communications within or between agencies.

Holland also asked the parties to discuss a Pebble proposal that he examine a sample of documents redacted  in their entirety, "with a view to including in defendant’s submission of documents for in camera review (and briefing) a representative number of such documents that have been withheld on the basis of FOIA Exemption 5."

The full order is below.

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Aug 212015
 

Full decision below

The Ninth Circuit has affirmed a district court opinion concluding that discharges from the Klamath Straits Drain into the Klamath River did not violate the Clean Water Act (ONRC Action v. U.S. Bureau of Reclamation, 12-35831).

The case attracted a great deal of interest because of the nature of the legal issue, which has been before the Supreme Court, most notably in Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, ___ U.S. ___, 133 S. Ct. 710 (2013), which the appeals court panel said "provid[ed] a simpler path to resolving this appeal." The court continued:

In that case, the Supreme Court considered the question of whether "the flow of water out of a concrete channel within a river rank[s] as a 'discharge of a pollutant' " under the CWA. Id. at 711. The Court answered that question in the negative. It held that "pumping polluted water from one part of a water body into another part of the same body is not a discharge of pollutants under the CWA," id. at 711, citing to its prior decision in South Florida Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95, 109–12 (2004). The L.A. County Flood Control decision acknowledged that 'storm water is often heavily polluted.' 133 S. Ct. at 712. Nonetheless, it is the addition of pollutants from a point source that is prohibited under the CWA, and the Court held that "no pollutants are 'added' to a water body when water is merely transferred between different portions of that water body." Id. at 713. A water transfer counts as a discharge of pollutants under the CWA only if the two separate bodies of water are "meaningfully distinct water bodies." Id. (quoting Miccosukee, 541 U.S. at 112).

The court found that "The record in this case demonstrates that the waters of the KSD are not meaningfully distinct from those of the Klamath River."

Summary prepared by court staff (which constitutes no part of the opinion)

The panel affirmed the district court’s summary judgment in favor of the United States Bureau of Reclamation and other defendants in a citizen suit brought by an environmental group under the Clean Water Act, alleging defendants violated the Act by discharging pollutants from the Klamath Straits Drain into the Klamath River without a permit.

The Clean Water Act limits the “discharge of pollutants,” and makes unlawful the addition from a point source of any pollutant to navigable waters without a permit. The Klamath River is a navigable water. The Klamath Straits Drain moves water from Lower Klamath Lake back to the Klamath River, and is part of the Klamath Irrigation Project operated by the Bureau of Reclamation in parts of Oregon and California.

The panel held that because the waters flowing into the Klamath River from the Klamath Straits Drain were not “meaningfully distinct,” as that term was used in L.A. Cnty. Flood Dist. v. Natural Resources Defense Council, 133 S. Ct. 710, 713 (2013) (holding that “no pollutants are ‘added’ to a water body when water is merely transferred between different portions of that water body”), a permit was not required under the Clean Water Act.

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Aug 192015
 

Company in bankruptcy pleads guilty to felony violation. Press release from DOJ follows. DOJ's link here.

dojseal
______________________________________________________________________________

FOR IMMEDIATE RELEASE                                                                                             ENRD

WEDNESDAY, AUGUST 19, 2015

(202) 514-2007

WWW.JUSTICE.GOV                                                                                    TTY (866) 544-5309

MISSISSIPPI PHOSPHATES CORP. PLEADS GUILTY TO CLEAN WATER ACT VIOLATION
AND AGREES TO TRANSFER 320 ACRES TO GRAND BAY NATIONAL ESTUARY

WASHINGTON — Mississippi Phosphates Corp. (MPC), a Mississippi corporation which owned and operated a fertilizer manufacturing facility located on Bayou Casotte in Pascagoula, Mississippi, pleaded guilty today to a felony information charging the company with a criminal violation of the Clean Water Act, announced Principal Deputy Assistant Attorney General Sam Hirsch of the Justice Department’s Environment and Natural Resources Division and U.S. Attorney Gregory K. Davis for the Southern District of Mississippi.

As part of the guilty plea, MPC admitted discharging more than 38 million gallons of acidic wastewater in August 2013.  The discharge contained pollutants in amounts greatly exceeding MPC’s permit limits, resulting in the death of more than 47,000 fish and the closing of Bayou Casotte.  MPC also admitted that, in February 2014, MPC discharged oily wastewater from an open gate on a storm water culvert into Bayou Casotte, creating an oily sheen that extended approximately one mile down the bayou from MPC.

MPC entered its guilty plea before Chief Judge Louis Guirola Jr. of the U.S. District Court for the Southern District of Mississippi.  Because MPC is in bankruptcy and is obligated to assist in funding the estimated $120 million cleanup of its site, the court accepted the parties’ agreement for MPCto transfer 320 acres of property near to its Pascagoula plant to become a part of the Grand Bay National Estuarine Research Reserve, which is managed by the Mississippi Department of Marine Resources as part of the National Oceanic and Atmospheric Administration’s National Estuarine Research Reserve System.

“With this plea, Mississippi Phosphates has accepted responsibility for having discharged millions of gallons of industrial pollutants that killed tens of thousands of fish, damaged marine habitats and polluted recreational waterways,” said Principal Deputy Assistant Attorney General Hirsch.  “Mississippi Phosphates has acknowledged its misconduct and has been sentenced to transfer property it owns that is adjacent to the Grand Bay National Estuary, thus protecting and potentially rehabilitating a vital marine resource that this company’s pollutant discharges had severely damaged.”

As the felony information describes, when it was in full production, MPC manufactured diammonium phosphate fertilizers from phosphate rock which it received by ship and rail and from sulphur which was piped to its facility from a neighboring oil refinery.  In its production of fertilizer, MPC generated a variety of pollutants and hazardous wastes.  MPC has been regulated under a number of environmental statutes that govern the production, storage and release of a variety of air and water pollutants as well as hazardous wastes.  In the manufacturing process, strong acids and ammonia were produced.  If improperly discharged, acids and ammonia can be highly toxic to fish and to other forms of marine life.  MPC was obligated to comply with permits issued by the Mississippi Department of Environmental Quality (MDEQ) under the authority of the Environmental Protection Agency (EPA) as prescribed by the Clean Water Act.  These permits regulated the storage and discharge of MPC’s stormwater and wastewater, prescribing the circumstances under which they could be discharged into Bayou Casotte and limiting the concentration and quantity of the pollutants they could contain.

As detailed in the felony information, since January 2000, MPC has been cited by MDEQ in numerous notices for hundreds of violations of its Clean Water Act permit for discharging wastewater exceeding its pollutant limits.  MPC was also cited for its failure to maintain adequate wastewater storage capacity, its discharge of untreated wastewater from its sulfuric acid plant directly through MPC’s main outfall, its combined release of untreated and undertreated stormwater and process wastewater from other outfalls, and its failure to implement required remedial measures to prevent the pollutant discharges and environmental harm it has caused for decades.

An April 2005 discharge resulted in the release of more than 17 million gallons of highly acidic wastewater into waterways adjacent to its facility, including Bayou Casotte, Tillman Creek and Bangs Lake of the Grand Bay National Estuarine Research Reserve.  These waters are some of the most productive nurseries for aquatic species on the Gulf Coast.  MPC’s massive discharge of pollutants resulted in the death of thousands of fish and other forms of marine life as well as the destruction of marsh grass, trees and shrubs. In the years following this environmental catastrophe, in spite of MDEQ’s orders and MPC’s remedial proposals, MPC never implemented the measures necessary to prevent the release of pollutants from its facility and the discharge of an even larger torrent of wastewater destroying even more marine life.

U.S. Attorney Davis praised the efforts of EPA’s Criminal Investigation Division, for its diligent work in the investigation of this matter.  Senior Trial Attorney Jeremy F. Korzenik of the Department of Justice’s Environmental Crimes Section and Assistant U.S. Attorney Gaines Cleveland are the prosecutors in charge of the case.

# # #

15-1026

Aug 122015
 

The Fish and Wildlife Service illegally skirted the requirements of the National Environmental Policy Act when it extended issued a rule that would allow wind energy facilities to obtain permits covering the take of bald and golden eagle permits for 30 years, a federal judge ruled Tuesday (Shearwater v. Ashe, 14-2830-LHK, Cal. N.D.).

Less than two years after its final rule was published, U.S. District Judge Lucy Koh found that FWS ignored its own experts when it decided it could rely on a previously completed Environmental Assessment to sextuple the length of permits.

Update 8/12/15: FWS has not issued any 30-year permits as yet. About a dozen companies have applied, but NEPA compliance with programmatic permits is required, so approval takes time. Industry may be waiting for FWS, which is reviewing its permit regulations, to clear up any uncertainties in the regulatory picture.

Among the reasons for FWS to take a closer look at the extended permit term, said Koh:

  • "There is no serious dispute that a sixfold increase in the maximum duration of programmatic eagle take permits will have the effect of reducing public participation in permitting decisions"
  • "At the very least, there is substantial evidence in the record indicating that the Final 30-Year Rule’s increase in the maximum duration for programmatic take permits may have 'highly controversial environmental effects' on bald and golden eagles."
  • "Under the new thirty-year regime, ... the burden shifts to FWS to determine every five years whether any changes to the permit are necessary."

"At bottom, FWS issued the proposed 30-Year Rule '[b]ecause industry has indicated that it desires a longer permit,' ” Kh said, quoting the proposal.

"While promoting renewable energy projects may well be a 'worthy goal, it is no substitute for the [agency’s] obligations to comply with NEPA and to conduct a studied review and response to concerns about the environmental implications of major agency action,' ” Koh said, quoting Western Watersheds Project v. Kraayenbrink (9th Cir. 2011), 632 F.3d at 492.

FWS, she said, "has not adequately explained why the environmental effects of the final 30-year rule are 'too broad, speculative, or conjectural to lend themselves to meaningful analysis.' In fact, FWS, as far as the Court can tell, did not offer any explanation in the final 30-year rule itself beyond the assertion that the rule 'will be broadly implemented.' "

The judge also ruled against the plaintiffs on their claim that FWS also should have consulted under Section 7 of the Endangered Species Act. She said there was not enough in the record to "provide the Court with a basis for setting aside as arbitrary and capricious FWS’s conclusion that the Final 30-Year Rule 'will not affect endangered or threatened species or designated critical habitat.' "

FWS Director Dan Ashe decided against further NEPA analysis in a meeting with FWS staff in October 2012, 14 months before the final rule was published. Recounted Koh:

Prior to that meeting, FWS had drafted a memo to the Director advising that the agency “prepare an environmental impact statement” before increasing the maximum duration of programmatic eagle take permits from five to thirty years, and that preparing an EIS “would result in a significantly improved, legally defensible regulation.” At the meeting itself, the staff’s “[b]ottomline” recommendation to the Director was to “shelve the tenure rule and do an EIS.” The Director disagreed. Finding the Proposed 30-Year Rule “administrative in nature,” and believing it was “[u]nlikely we’ll be sued by NGOs,” the Director instructed the staff to “[g]o ahead with finalizing the tenure rule.” The final outcome of the meeting pursuant to the Director was: “Don’t do more NEPA. Don’t do an EA, they will only want an EIS.”

The final rule was published Dec. 9, 2013. The lawsuit challenging it was filed June 19, 2014, and amended Sept. 25, 2014. Only four days after the complaint was filed, FWS announced it would conduct a scoping process to determine whether more NEPA analysis was required. (Regulatory docket)

Plaintiffs are Debra Shearwater, an American Bird Conservancy member who owns and operates a private birdwatching company; Dr. Carolyn Crockett, Michael Dee, Robert M. Ferris, executive director of Cascadia Wildlands, and American Bird Conservancy. (Initial complaint with descriptions of plaintiffs.)

Links

Aug 102015
 

Klamath-Siskiyou Wildlands Center's notice of intent to sue was sufficient to create subject matter jurisdiction for its lawsuit challenging approval of suction dredge mining projects in the Rogue River-Siskiyou National Forest (Klamath-Siskiyou Wildlands Center v.MacWhorter, 13-35453).

That was the ruling of the Ninth Circuit, which reversed a decision from District Judge Owen Panner in Oregon

Summary of decision (prepared by court staff; not part of the official opinion):

The panel reversed the district court’s dismissal for lack of subject matter jurisdiction of an Endangered Species Act claim brought by Klamath-Siskiyou Wildlands Center against the U.S. Forest Service concerning its approval of suction dredge mining projects in the Rogue River-Siskiyou National ForestUnder the citizen suit provision of the Endangered Species Act, a private citizen may bring suit to remedy a violation of the Act, provided that the private citizen gives written notice of the alleged violation or violations upon which the suit is based at least sixty days before suit is filed.

The panel held that the Klamath-Siskiyou Wildlands Center’s June 2012 notice letter was sufficient notice under the citizen suit notice provision of the Endangered Species Act. The panel also held that there was subject matter jurisdiction in the district court over the Center’s suit to enforce the Forest Service’s obligations under Section 7 of the Endangered Species Act. The panel left other questions in the suit to be addressed by the district court on remand.

The judges on the opinion were Circuit Judge William A. Fletcher and Andrew D. Hurwitz. Donald E. Walter, Senior District Judge for the U.S. District Court for the Western District of Louisiana, sat by designation.

Aug 102015
 

The Ninth Circuit has ordered the Environmental Protection Agency to respond by Oct. 31 to a petition seeking a ban on chlorpyrifos (Pesticide Action Network v. U.S. EPA, 14-72794). (Opinion)

Excerpts:

Although filibustering may be a venerable tradition in the United States Senate, it is frowned upon in administrative agencies tasked with protecting human health. Pesticide Action Network North America and the Natural Resources
Defense Council have been waiting for years for the United States Environmental Protection Agency to respond to their administrative petition requesting a ban on the pesticide chlorpyrifos. Instead, they’ve received a litany of partial status reports, missed deadlines, and vague promises of future action. We recognize the scientific complexity inherent in evaluating the safety of pesticides and the competing interests that the agency must juggle. However, EPA’s ambiguous plan to possibly issue a proposed rule nearly nine years after receiving the administrative petition is too little, too late. This delay is egregious and warrants mandamus relief. We order EPA to issue a full and final response to the petition no later than October 31, 2015.

***

When EPA failed to issue a final response to the administrative petition in February 2014 as promised, Pesticide Action Network filed a renewed petition for a writ of mandamus in September 2014, which is the subject of this
opinion. While that petition was pending, EPA issued a preliminary final denial of the administrative petition on January 14, 2015. 80 Fed. Reg. 1909–11 (Jan. 14 2015). EPA initially informed us that it would finalize its response to the administrative petition in “summer 2015,” but later backtracked and cautioned that it was unlikely to meet that deadline.

We heard oral argument on June 4, 2015. In response to questioning regarding when EPA intended to issue a final response to the administrative petition, counsel for EPA was unable to offer a firm date. However, counsel stated that EPA would know by June 30 whether the public comments received in response to its preliminary final denial of the administrative petition necessitated further proceedings. We thus ordered EPA to inform the court of the date by
which it intended to either “finalize the preliminary denial of [the] administrative petition” or issue any other “final ruling” in this matter. In Re Pesticide Action Network N. Am., 790 F.3d 875 (9th Cir. June 10, 2015).

In response to that order, EPA asserted that its concerns about contamination of drinking water had convinced it to take more aggressive action to restrict chlorpyrifos. EPA stated that its current plan is to publish, before April 15, 2016, a proposed rule to “revoke all chlorpyrifos tolerances”—in essence, to impose an outright ban on the pesticide. In that update, however, EPA also noted that certain labeling changes could render such action “unnecessary.” Dissatisfied with the uncertainty of EPA’s response, Pesticide Action Network reiterated its request that we issue a writ of mandamus compelling EPA to issue a “final” ruling on the administrative petition.

Aug 102015
 

The Fish and Wildlife Service has designated about 5,755 acres in Santa Barbara County as critical habitat for the endangered Vandenberg monkeyflower. The final rule went on Public Inspection today and will be published in the Federal Register Aug. 11.

Center for Biological Diversity link of a USFWS pic. Links to CBD release on the proposal to list the plant.

More links on the plant from Google. And see below for maps from FWS.

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