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    Endangered Species Day Youth Art winners announced

    Posted by Steve Davies at 10:53 pm Daily Links
    Apr 192012

    These kids are remarkably talented. A screenshot of the 40 semifinalists’ work is below. Their creations will be exhibited at the Ogden Museum of Southern Art/University of New Orleans starting June 14.

    Here’s the news release announcing the winners. The grand prize winner “will be honored at the Association of Zoos and Aquariums’ Congressional Reception in Washington, D.C. on May 9, 2012 and have his/her name engraved on a special trophy. In addition, the winner will receive an art lesson from Wyland, a plaque, and art supplies. First-place category winners will receive a plaque and art supplies.”

    No surprises in polar bear special rule proposed by FWS

    Posted by Steve Davies at 5:51 pm Daily Links, ESA, Fish and Wildlife Service, Listings, Recent actions
    Apr 192012

    Activities outside the range of the polar bear, including emissions of greenhouse gases, won’t be considered in determining the “take” of the bears under the Endangered Species Act, if a Fish and Wildlife Service proposal published April 19 becomes final.

    “None of the prohibitions in § 17.31 of this part apply to any taking of polar bears that is incidental to, but not the purpose of, carrying out an otherwise lawful activity within the United States, except for any incidental taking caused by activities in areas subject to the jurisdiction or sovereign rights of the United States within the current range of the polar bear,” the proposed regulatory language says

    Here’s the explanation of that paragraph (Paragraph 4) in the proposal, which summarizes the service’s thinking:

    [W]e find that for activities outside the current range of the polar bear (including vast areas within the State of Alaska that do not coincide with the polar bear’s range), overlay of the incidental take prohibitions under 50 CFR 17.31 is not necessary and advisable for polar bear management and conservation. The Service finds the provisions of paragraph (4) to be consistent with the conservation of the polar bear because: (1) The potential for citizen suits alleging take resulting from activities outside of the range of the polar bear is significant; (2) the likelihood of such suits prevailing in establishing take of polar bears is remote, and (3) defending against such suits will divert available staff and funding away from productive polar bear conservation efforts. Even though incidental take of polar bears from activities outside the current range of the species would not be prohibited under this proposed special rule, the consultation requirements under section 7 of the ESA would remain fully in effect. Any biological opinion associated with a consultation will identify any incidental take that is reasonably certain to occur. Any incidental take, identified through a biological opinion or otherwise, remains a violation of the MMPA unless appropriately authorized. In addition, the citizen suit provision under section 11 of the ESA would be unaffected by Alternative 2 for challenges to Federal agencies that are alleged to be in violation of the consultation requirement under section 7 of the ESA. Further, the Service will pursue any violation under the MMPA for incidental take that has not been authorized, and all MMPA penalties would apply. As such, we have determined that not having the additional overlay of incidental take prohibitions under 50 CFR 17.31 resulting from activities outside the current range of the polar bear (including some areas within the State of Alaska) would be consistent with the conservation of the species. The Secretary has the discretion to prohibit by regulation with respect to polar bears any act prohibited in section 9(a)(1) of the ESA.

    Environmental groups expressed their displeasure with the proposal.

    “The proposed rule severely undermines protection for polar bears by exempting from portions of the Endangered Species Act all activities that occur outside of the bears’ range. But the species is endangered precisely because of activities occurring outside the Arctic — namely the emission of greenhouse gases and resulting warming that is leading to the rapid disappearance of summer sea ice,” the Center for Biological Diversity said in a news release (linked above).

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    Bald/golden eagle take regs proposed; ice seal peer reviews released

    Posted by Steve Davies at 6:14 pm Daily Links, Fish and Wildlife Service, Listings, NMFS, Recent actions
    Apr 162012

    FWS has proposed new regulations that would extend from five to 30 years the duration of programmatic permits that allow the taking of bald or golden eagles.

    In the proposal, published Friday, April 13, FWS said:

    In February 2011, we published draft Eagle Conservation Plan Guidance that provided information on how to prepare Eagle Conservation Plans and apply for eagle take permits. Many commenters recommended that we extend the term of the permit, as we are proposing to do with this rule. Since publication of the 2009 final rule, we have reviewed applications from proponents of renewable energy projects, such as wind and solar power facilities, for programmatic permits to authorize eagle take that may result from both the construction and ongoing operations of renewable energy projects. During our review, it became evident that the 5-year term limit imposed by the 2009 regulations (see 50 CFR 22.26(h)) needed to be extended to better correspond to the timeframe of renewable energy projects. We propose to amend the regulations to provide for terms of up to 30 years for programmatic permits. The maximum permit tenure for standard Sec. 22.26 permits would remain at 5 years.

    “Programmatic take” of eagles “is defined at 50 CFR 22.3 as ‘take that is recurring, is not caused solely by indirect effects, and that occurs over the long term or in a location or locations that cannot be specifically identified,’ ” the service noted.

    The proposal was immediately attacked by the American Bird Conservancy, which said it would result in the deaths of more eagles from wind turbines. In a news release, ABC Wind Campaign Coordinator Kelly Fuller said, “It is simply irresponsible of [FWS] to propose granting 30-year take permits for birds such as eagles, which have populations that are still in a precarious state. Just three years ago, the FWS concluded in a published rulemaking that they shouldn’t grant permits for longer than five years ‘because factors may change over a longer period of time such that a take authorized much earlier would later be incompatible with the preservation of the bald eagle or the golden eagle.’ The underlying science has not changed, and there is no proven method for fixing a wind farm so that it no longer kills eagles, short of turning off the turbines.”

    The proposal’s comment period ends May 14, but we wouldn’t be surprised to see that extended.

    Links

    US/Russia ice seal survey to begin as NMFS ponders peer reviews

    The United States and Russia will conduct surveys for ice seals, the National Marine Fisheries Service has announced. In addition, the agency is asking for comments on peer reviews of the service’s December 2010 proposal to list four subspecies of ringed seals and two distinct population segments (DPS) of bearded seals, including the Arctic ringed seal and the Beringia DPS of bearded seals, as threatened under the ESA.

    NMFS “found substantial scientific disagreements in some peer and public comments received on the listing proposals, particularly relating to the sufficiency or accuracy of the model projections and analysis of future sea ice habitat for Arctic ringed seals and the Beringia DPS of bearded seals,” the agency said in an April 5 press release.

    Ice seal page (Go here for peer reviews)

    AP story (“US, Russia to begin Bering Sea seal survey”)

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    Miami blue butterfly alights on endangered species list

    Posted by Steve Davies at 4:03 pm Daily Links, Fish and Wildlife Service, Listings, Recent actions
    Apr 112012

    The woeful record of this site in recording the addition of species to the threatened and endangered species list should not prevent us from noting a new member from Florida. Twelve years after it received a petition, the Fish and Wildlife Service placed the Miami blue butterfly on the list of endangered species.

    The butterfly was emergency-listed in August — Aug. 10, 2011, to be precise — but that protection expired April 4, the day before the final listing was announced. The rule was published in the Federal Register April 6.

    In addition, FWS designated as threatened, due to similarity of appearance to the Miami blue, the cassius blue butterfly (Leptotes cassius theonus), ceraunus blue butterfly (Hemiargus ceraunus antibubastus), and nickerbean blue butterfly (Cyclargus ammon).

    Those species were listed “in portions of their ranges,” FWS said.

    Nabokov was right on taxonomy

    Nabokov and friend

    Here’s an interesting tidbit from the final rule on the species’ genetic makeup that supports novelist and lepidopterist Vladimir Nabokov’s view on the proper genus for the Miami blue:

    Although some authors continue to use Hemiargus, Nabokov (1945, p. 14) instituted Cyclargus for some species, which has been supported by more recent research…

    Kurt Johnson (in litt. 2002), who has published most of the existing literature since 1950 on the blue butterflies of the tribe Polyommatini, reaffirmed that thomasi belongs in the genus Cyclargus (Nabokov 1945, p. 14), not Hemiargus. Accordingly, Cyclargus thomasi bethunebakeri (Pelham 2008, p. 21) and its taxonomic standing is accepted (Integrated Taxonomic Information System 2011, p. 1).

    The reference is to Nabokov’s 1945 paper, Cyclargus n.g. Notes on Neotropical Plebejinæ (Lycaenidae, Lepidoptera). Psyche 52:1-61.

    The subject of Nabokov’s research has been discussed at length before. In the New York Times last year, Carl Zimmer wrote

    Nabokov’s reputation as a scientist languished until the 1990s. Kurt Johnson, an entomologist then at the American Museum of Natural History, examined the genitals of the [Polyommatus] blues and was surprised at their diversity. Searching the literature for help, he came across Nabokov’s work. As he later described in the 2000 book “Nabokov’s Blues,” written with Steve Coates, Dr. Johnson set about reviving Nabokov’s classification. Working with Zsolt Balint of the Hungarian Museum of Natural History and Dubi Benyamini, an Israeli collector, he collected new blues and carefully examined them. In the end, they decided Nabokov was right in his classification. Along the way, they even named some new species in his honor, like Nabokovia cuzquenha.

    The article also discusses how Nabokov “envisioned [the blues] coming to the New World from Asia over millions of years in a series of waves.”

    Few professional lepidopterists took these ideas seriously during Nabokov’s lifetime. But in the years since his death in 1977, his scientific reputation has grown. And over the past 10 years, a team of scientists has been applying gene-sequencing technology to his hypothesis about how Polyommatus blues evolved. Last week in The Proceedings of the Royal Society of London, they reported that Nabokov was absolutely right.

    “It’s really quite a marvel,” said Naomi Pierce of Harvard, a co-author of the paper.

    LINKS

    Cyclargus thomasi bethunebakeri

     

     

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    Roundup: Permit needed to shoot captive-bred listed species in Texas; Supreme Court to take up Arkansas flooding takings case; investigation of wolf trapping sought

    Posted by Steve Davies at 6:54 pm Army Corps of Engineers, Court calls, Daily Links, ESA, Fish and Wildlife Service, Listings, Supreme Court
    Apr 042012

    A federal judge has ruled against requests that would allow continued hunting without a permit of three non-native, privately bred antelope species on game farms in Texas (Safari Club International v. Salazar, 11-1564-BAH; Exotic Wildlife Association v. U.S. 12-340-BAH, D.D.C).

    Safari Club International and the Exotic Wildlife Association had asked U.S. District Judge Beryl Howell for separate injunctions. SCI sought to enjoin enforcement of endangered status for the scimitar-horned oryx, dama gazelle, and addax, Howell noted in her April 3 opinion. EWA and co-plaintiffs “are seeking more narrow relief” to prohibit the Fish and Wildlife Service from enforcing a final rule removing a regulation “that has, since 2005, exempted U.S. non-native captive populations of the three antelope species from many of the prohibitions, restrictions, and requirements attendant to their classification as endangered species.”

    That rule, which goes into effect today (April 4, 2012), was promulgated in response to a previous federal court decision (Friends of Animals v. Salazar, 626 F. Supp. 2d 102, D.D.C. 2009) that found FWS had illegally allowed the hunting of the antelope species, which are native to Africa but are raised on game farms in Texas. The “captive-bred exemption” was included in a rule listing the species as endangered. District Court Judge Henry Kennedy determined that the rule had been issued without proper public notice and comment.

    In her decision, Howell said then plaintiffs had not demonstrated a likelihood of success on the merits, because FWS’s listing decision “was issued only after years of consultation and research, and appears to be consistent with the policy and practice of the FWS as well as with the purpose of the ESA.”

    The judge said that examples cited by SCI where FWS treated captive and wild animals differently “are just that, examples.” She continued:

    “An agency decision to treat the wild and captive antelope together in the listing decision came only after consideration over the period from 1991 to 2005. The fact that the FWS has over time differentiated between wild and captive animals in the case of other animal species does not, on its own, suggest to the court that the decision not to do so in this case was arbitrary and capricious.”

    The judge also said SCI had not been able to show that FWS “ignored the conservation mandates of the ESA.”

    “Indeed, by listing both the captive and wild populations of the three antelope species as endangered, the FWS has ensured that prohibitions against taking, importing, and exporting will apply to all members of the three antelope species. There will be no confusion about whether a party is attempting to ‘take’ a captive-bred antelope or a wild antelope as there might be if only some of the three antelope species were considered ‘endangered.’ ”

    EWA argued that FWS should have considered delisting the species, and that removing the captive-bred exemption will harm conservation efforts. Indeed, EWA had argued that “[t]he draconian effect of this new rule is easy to predict [because], since publication of the proposed rule last summer, many owners have already disposed of half or all of their oryx, addax and dama gazelles.”

    “These claims about the adverse impact on the U.S. herds of these endangered species from the final rule, even before it becomes effective, are obviously disturbing,” Howell said. “Neither SCI nor the EWA plaintiffs have shown, however, that they are entitled to a preliminary injunction because they will suffer irreparable harm. In the case of both SCI and the EWA plaintiffs, the harm alleged is (1) primarily economic and (2) in any case, remedied by the permit practice that is already in place.”

    “The court does not underestimate the significance of the economic loss to individual ranchers resulting from the depreciation in the value of the animals,” the judge wrote. “Nevertheless, the standard for showing irreparable harm in this jurisdiction is strict, and economic harm alone is generally not sufficient to warrant this court’s granting of a motion for a preliminary injunction. The D.C. Circuit has made it clear that ‘economic loss does not, in and of itself, constitute irreparable harm.’ Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985).”

    Said the judge: “The regulations in place after the final rule goes into effect on April 4 . . . should allow plaintiffs to continue raising the [antelopes]. First, the ESA does not regulate ‘purely intrastate activities (with the exception of take).’ 77 Fed. Reg. at 433. Thus, plaintiffs will be able to continue to possess animals, transport them within the state, or sell them to another party within the state without a permit. Beyond those activities, permits will be available for many of the other activities currently engaged in by the plaintiffs.”

    Supreme Court to take up takings case involving flooding in Arkansas

    The Supreme Court granted a petition for writ of certiorari in a case involving the Army Corp of Engineers’ flooding of a wildlife management area in Arkansas (Ark. Game & Fish Commission v. U.S., 11-597).

    The question is “whether government actions that impose recurring flood invasions must continue permanently to take property within the meaning of the Takings Clause.”

    Links

    Investigation demanded of trapping, killing of Idaho wolf by Forest Service employee

    The Center for Biological Diversity has asked the Forest Service and Idaho Attorney General to investigate the actions of a Forest Service employee “who posted photos of a wolf he had trapped in northern Idaho that had been maliciously and non-fatally shot by people who spotted the animal from a nearby road.”

    The photos were originally posted on the trapperman.com website but havre since been taken down. [Editor's note: The Center for Biological Diversity also had posted a photo to which we linked earlier, but CBD has removed that picture, as well as a letter it sent to the Idaho Attorney General.]

    “A year ago, that wolf was protected as a member of an endangered species, but last month he was trapped, tortured and killed thanks to an underhanded congressional rider that’s also responsible for the deaths of hundreds of other wolves in the northern Rocky Mountains,” said the Center’s Michael Robinson. “A lack of respect for the balance of nature is leading to a war on wolves in the northern Rocky Mountains.”

    Bransford with the wolf before he shot it (pic downloaded from Idaho Statesman page; I have no intention of removing it.)

    According to the Boise Weekly,” a spokesman for [Idaho Fish and Game's] Clearwater Region said the wolf was legally trapped by Bransford and subsequently checked by department officials.”

    Bransford works in the Nez Perce National Forest, but there has been no suggestion that the incident occurred while he was on the job.

    Here’s the Earth Island Journal account.

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    Senators float bill to kill EPA-Corps 404 guidance

    Posted by Steve Davies at 7:35 pm Daily Links
    Mar 292012

    Congress is out to stop EPA and the Army Corps of Engineers from issuing their final guidance on the scope of the agencies’ regulatory authority under Section 404 of the Clean Water Act.

    Sen. John Barrasso (R-Wyo.) and 30 other senators are co-sponsoring the “Preserve the Waters of the U.S. Act” (S. 2245), which Barrasso said would “prevent[] the EPA and the [Corps] from using their overreaching ‘guidance’ to change legal responsibilities under the [CWA]” (press release).

    The guidance is currently in draft form. It’s unclear whether the agencies will issue a final version this year.

    Sen. James Inhofe (R-Okla.), a co-sponsor and the chairman of the Senate Environment and Public Works Committee, said the guidance would result in “an increase in Army Corps jurisdictional determinations of as much as 17 percent,” but also would change the way states and individual citizens deal with the Clean Water Act.

    “These kinds of changes, and passing along more unfunded mandates to state and local governments, should never be done via a guidance document,” Inhofe said. “I call on my colleagues from both the Senate and the House to join us in stopping EPA and the Army Corps from making these unprecedented regulatory changes through a guidance document. I look forward to swift action on this bill.”

    All of the bill’s co-sponsors are Republicans. Environmentalists had been working in recent weeks on Capitol Hill to urge Democrats not to sign on.

    In addition to Inhofe and Barrasso, co-sponsors of the bill include Sens. Jeff Sessions (Ala.), Dean Heller (Nev.), Mitch McConnell (Ky.), Mike Enzi (Wyo.), David Vitter (La.), John Boozman (Ark.), Mike Crapo (Idaho), Pat Roberts (Kansas), John Thune (S.D.), Roger Wicker (Miss.), Jim Risch (Idaho), John Cornyn (Texas), Richard Lugar (Ind.), Chuck Grassley (Iowa), Tom Coburn (Okla.), Roy Blunt (Mo.), Marco Rubio (Fla.), Jon Kyl (Ariz.), Pat Toomey (Pa.), Dan Coats (Ind.), Rand Paul (Ky.), Mike Johanns (Neb.), Saxby Chambliss (Ga.), John Hoeven (N.D.), Jerry Moran (Kansas), Johnny Isakson (Ga.), Ron Johnson (Wis.). Jerry Moran (Kansas) and Thad Cochran (Miss.).

    Speaking of “navigable waters,” here’s an interesting opinion from the Second Circuit Court of Appeals finding that the Federal Power Act does not pre-empt regulation of navigable waterways (Niagara Mohawk Power Corp. v. Hudson River-Black River Regulating Dist., 10-4402).

    The FPA “does not supplant the hydropower-licensing powers of state actors except in those areas where state and federal agencies both attempt to make a final decision on ‘the same issue’ — that is, where a state-federal conflict arises,” the court said. (Opinion from ESWR site)

    Niagara Mohawk, doing business as National Grid, challenged the Hudson River-Black River Regulating District’s authority to levy assessments against it “for benefits that its property along the Hudson River receives from a dam and reservoir that the District operates,” the court noted.

    But the lands at issue are not involved in the production of hydropower.

    “In the present case, the district’s assessment powers over vacant, non-licensee, non-hydropower plots of land does [sic] not overlap FERC’s powers in any way. Thus, while the FPA does indeed preempt some state and local laws, its scope is far narrower than National Grid suggests, and does not affect the district’s challenged assessments,” the court said in its March 7 opinion.

    Here’s more from the opinion:

    National Grid argues that the FPA “wholly pre-empted regulation of navigable waterways in the United States, except with respect to State regulation of irrigation or municipal uses” or, in the alternative, “all matters regarding navigable waterways,” and that, because the District is a FERC licensee, the FPA limits the District’s “assessments for matters other than irrigation and municipal purposes . . . to ‘headwater benefit assessments, as determined by FERC.’” Because the FPA does not contain express preemption language, and because the District’s actions fall within the powers traditionally exercised by states, we begin with a strong presumption against finding that the District’s powers are federally preempted, see Clarkstown, 612 F.3d at 104 – a presumption that National Grid fails to overcome.

    . . .

    The Supreme Court recognized in First Iowa [Hydro-Elec. Coop. v. FERC, 328 U.S. 152, 171 (1946)] that the FPA “was distinctly an effort to provide federal control over and give federal encouragement to water power development.” Id. at 180 n.23 (emphasis added). The case concerned a hydroelectric project that, unlike National Grid’s vacant parcels of land, was “clearly within the jurisdiction of [FERC] under the Federal Power Act.” Id. at 163. And although the Court described the FPA as an “enactment of a complete scheme of national regulation which would promote the comprehensive development of the water resources of the nation,” id. at 180, the context of the controversy makes clear that the “water resources” in question are hydroelectric power resources. Nothing in the opinion suggests that Congress intended to federalize anything more than the licensing of hydropower projects; the opinion does not indicate that the FPA, as National Grid contends, renders state actors powerless to engage in other forms of regulation of navigable waters, including assessing vacant, non-FERC-licensed, non-hydropower parcels within their jurisdiction for benefits from water-control projects not related to power production.

    On the contrary, the Court noted that the FPA recognizes “a separation of those subjects which remain under the jurisdiction of the states from those subjects which the Constitution delegates to the United States and over which Congress vests the Federal Power Commission [FERC’s predecessor] with authority to act.”

    Longfin smelt designated candidate species

    Posted by Steve Davies at 2:15 pm Daily Links
    Mar 292012

    Apropos of the NRC report released today (see post below), FWS has concluded that “the San Francisco Bay-Delta Distinct Population Segment (DPS) of longfin smelt warrants consideration for protection” under the ESA,” but that it is “precluded at this time from drafting a formal listing rule by the need to address other higher priority species.”

    More information here at FWS’s longfin smelt page

    Juvenile longfin smelt (Photo by Bureau of Reclamation)

    Bay-Delta report released by National Research Council

    Posted by Steve Davies at 2:01 pm Biological Opinions, Daily Links, ESA, Fish and Wildlife Service, Fisheries, NMFS
    Mar 292012

    The news release is here (and reprinted below) and the full report is here.


    Date:  March 29, 2012
    FOR IMMEDIATE RELEASE

    Increasing Water Scarcity in California’s Bay-Delta Will Necessitate Trade-offs;
    ‘Hard Decisions’ Needed to Balance Various Environmental Risks

    WASHINGTON — Simultaneously attaining a reliable water supply for California and protecting and rehabilitating its Bay-Delta ecosystem cannot be realized until better planning can identify how trade-offs between these two goals will be managed when water is limited, says a new report from the National Research Council.  Recent efforts have been ineffective in meeting these goals because management is distributed among many agencies and organizations, which hinders development and implementation of an integrated, comprehensive plan.  Additionally, it is impossible to restore the delta habitat to its pre-disturbance state because of the extensive physical and ecological changes that have already taken place and are still occurring, including those due to multiple environmental stressors.

    The delta region receives fresh water from the Sacramento and San Joaquin rivers and their tributaries, and ultimately flows into San Francisco Bay and the Pacific Ocean.  Water-pumping stations divert water from the delta, primarily to supply Central Valley agriculture and metropolitan areas in southern California, the Bay Area, and the delta itself.  An increasing population and the operation of the engineered water-control system have substantially altered the delta ecosystem, including its fish species.  Conflicts among various water users have grown, and there are sharp differences of opinion concerning the timing and amount of water that can be diverted from the delta for agricultural, municipal, and industrial purposes and how much water, and of what quality, is needed to protect the delta ecosystem.  The U.S. departments of the Interior and Commerce asked the Research Council to identify the factors affecting fish species in the delta, review future water supply and delivery options, determine gaps in knowledge, and advise on the degree of delta restoration that is attainable while maintaining both an environmentally sustainable ecosystem and a reliable water supply.

    It is likely that water scarcity in the delta will become increasingly severe, the report says.  Failure to acknowledge this problem and craft plans and policies that address water scarcity for all needs has made delta water management more difficult than is necessary.  The committee that wrote the report suggested establishing priorities for water use, accounting for trade-offs in decision making, optimizing the availability of existing water supplies, enforcing California’s constitutional prohibition against non-beneficial and wasteful water use, and practicing water conservation, among other principles and guidelines.

    Multiple environmental stressors — such as dams; water pumping stations; introduced and invasive species; and changes in nitrogen and phosphorus concentrations and amounts, water flow, and habitat — negatively affect five delta fishes listed as endangered or threatened, the committee said.  Successfully rehabilitating the delta ecosystem by targeting how an individual stressor impacts a particular species seems doubtful.  Therefore, hard decisions will need to be made about balancing risks for different water uses, such as allocating water to support economic activity, sanitation, or other needs.  In addition, alleviating any one stressor alone is unlikely to reverse declines in these species, but opportunities exist to mitigate or reverse the effects of many stressors.  To increase the likelihood that actions to rehabilitate the ecosystem are cost-effective, continued analyses, modeling, and monitoring will be needed, the committee noted.

    Climate change is one of the most challenging and important issues confronting the management and rehabilitation of the delta ecosystem.  It is expected to affect the physical and ecological structure and functioning of the delta as well as the availability of water in the state.  For instance, assessments suggest that many species will be affected by changes in runoff from precipitation and snowmelt, which would likely occur earlier in the year than currently.  In addition, projected sea-level rise and extremes of precipitation could increase the frequency of levee failure and the inundation of islands.  Sea-level rise also has the potential to move more salt water into the delta and alter water quality.  The committee recommended that future planning should include a climate change-based risk model, analysis that incorporates data on the actual changes in delta conditions, and alternative future climate scenarios and their probability.

    Additionally, the instability of levees and potential of one levee failure to affect others are liable to be major issues for achieving any measure of water supply reliability or ecosystem rehabilitation.  Continuing the status quo of improving levees will not always be the most environmentally sustainable or economically defensible response in the years ahead, the committee noted.

    The lack of integrated, comprehensive planning has made science less useful in decision making for the delta, the committee said.  It recommended that California review water planning and management in anticipation of future circumstances.  This review should devote attention to water scarcity, balanced consideration of all statewide water uses and the practices that govern them, and available engineering alternatives.  In the absence of a review, it would be difficult to resolve delta water management problems in other than a piecemeal fashion.

    “Science is necessary to inform actions and proposals, but it does not provide the entire overview and integration that the committee recommends,” said committee member Henry J. Vaux Jr., professor emeritus of resource economics at the University of California.  “Societal and political considerations are also integral factors in determining the most appropriate policies toward managing the water resources in the delta and balancing the needs of all water users.”

    The study was sponsored by the U.S. Department of the Interior and U.S. Department of Commerce.  The National Academy of Sciences, National Academy of Engineering, Institute of Medicine, and National Research Council make up the National Academies.  They are independent, nonprofit institutions that provide science, technology, and health policy advice under an 1863 congressional charter.  Committee members, who serve pro bono as volunteers, are chosen by the Academies for each study based on their expertise and experience and must satisfy the Academies’ conflict-of-interest standards.  The resulting consensus reports undergo external peer review before completion.  For more information, visit http://national-academies.org/studycommitteprocess.pdf.  A committee roster follows.

    Contacts: 

    Jennifer Walsh, Media Relations Officer
    Luwam Yeibio, Media Relations Assistant
    Office of News and Public Information
    202-334-2138; e-mail news@nas.edu

    NATIONAL RESEARCH COUNCIL

    Division on Earth and Life Studies
    Water Science and Technology Board
    Committee on Sustainable Water and Environmental Management in the California Bay-Delta

    Robert J. Huggett (chair)
    Professor Emeritus
    College of William and Mary
    Seaford, Va.

    James J. Anderson
    Research Professor and Co-Director of Columbia Basin Research
    School of Aquatic and Fishery Sciences
    University of Washington
    Seattle

    Michael E. Campana
    Professor
    Department of Geosciences
    Oregon State University
    Corvallis

    Thomas Dunne [1]
    Professor
    Donald Bren School of Environmental Science and Management
    University of California
    Santa Barbara

    Jerome B. Gilbert [2]
    Consulting Engineer
    Orinda, Calif.

    Albert E. Giorgi
    President and Senior Fisheries Scientist
    BioAnalysts Inc.
    Redmond, Wash.

    Christine A. Klein
    Chesterfield Smith Professor of Law
    College of Law
    University of Florida
    Gainesville

    Samuel N. Luoma
    Emeritus
    U.S. Geological Survey
    Menlo Park, Calif.

    Thomas Miller
    Professor
    Chesapeake Biological Laboratory
    Center for Environmental Science
    University of Maryland
    Solomons

    Stephen G. Monismith
    Associate Professor
    Civil Engineering Department
    Terman Engineering Center
    Stanford University
    Stanford, Calif.

    Jayantha Obeysekera
    Director of Hydrologic and Environmental Systems Modeling
    South Florida Water Management District
    West Palm Beach

    Hans W. Paerl
    Distinguished Professor
    Institute of Marine Sciences
    University of North Carolina
    Morehead City

    Max J. Pfeffer
    Professor
    Department of Rural Sociology
    Cornell University
    Ithaca, N.Y.

    Denise Janet Reed
    Professor
    Department of Earth and Environmental Sciences
    Pontchartrain Institute for Environmental Sciences
    University of New Orleans
    New Orleans

    Kenneth A. Rose
    E.L. Abraham Distinguished Professor
    Department of Oceanography and Coastal Sciences
    Louisiana State University
    Baton Rouge

    Desiree D. Tullos
    Assistant Professor
    Department of Biological and Ecological Engineering
    Oregon State University
    Corvallis

    Henry J. Vaux Jr.
    Professor Emeritus of Resource Economics
    University of California
    El Cerrito

    STAFF

    David Policansky
    Study Director
    ____________________________________

    1 Member, National Academy of Sciences
    2 Member, National Academy of Engineering

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    Roundup: Supreme Court rejects CBD attorney fees petition and challenge to Wash. shoreline buffer law; wind energy guidelines released; 404 decision from D.C. District Court slams EPA; NRC report on Bay-Delta on the way, more

    Posted by Steve Davies at 10:00 pm Clean Water Act, Court calls, Daily Links, EPA, ESA, Supreme Court, Wetlands
    Mar 272012

    The Supreme Court declined yesterday (March 26) to review a Ninth Circuit decision which found that attorney fees were due the plaintiff even though the legal issue was found moot (Marina Point Development Co. v. Center for Biological Diversity, 11-782). The question posed by the petition was “whether courts can properly award attorney’s fees and costs under fee-shifting statutes that limit such awards to “appropriate” circumstances when, as here, the matter becomes moot on appeal, the judgment of this district court is vacated and undone, and the plaintiff ultimately accomplishes nothing?”

    The fee-shifting provision is contained in the ESA. CBD’s attorney fee award amounted to $1.1 million, after being reduced by more than $500,000 when the Ninth Circuit determined that it was not due fees for its Clean Water Act claim. (See SCOTUSBlog link for more documents.)

    The high court also said no to a petition challenging shoreline buffers in Washington state.

    Links in Kitsap Alliance of Property Owners v. Central Puget Growth Management Hearings Board (11-457)

    • Challenge goes to Supreme Court (Article on Pacific Legal Foundation website)
    • Amicus brief filed by Citizens’ Alliance for Property Rights
    • Opposition brief (Hood Canal Environmental Council, Futurewise, People for Puget Sound, Kitsap Citizens for Responsible Planning, and West Sound Conservation Council)

    SCOTUSBlog also informs that the court’s March 30 conference will include consideration of Arkansas Game & Fish Commission v. United States, which raises the question of whether purposefully flooding land is a Fifth Amendment taking.

    Interior announces final voluntary onshore wind energy guidelines

    They were released Friday (March 23). (FWS press release) (Fact sheet) (FWS wind energy page)

    Mingo Logan wins in D.C.

    In the district court in Washington, D.C., Friday, Judge Amy Berman Jackson found conclusively for Mingo Logan Coal Company in its challenge to EPA’s invalidation of a 404 permit granted by the Corps for the Spruce No. 1 mine.

    Jackson concluded

    that EPA exceeded its authority under section 404(c) of the Clean Water Act when it attempted to invalidate an existing permit by withdrawing the specification of certain areas as disposal sites after a permit had been issued by the Corps under section 404(a). Based upon a consideration of the provision in question, the language and structure of the entire statutory scheme, and the legislative history, the Court concludes that the statute does not give EPA the power to render a permit invalid once it has been issued by the Corps. EPA’s view of its authority is inconsistent with clear provisions in the statute, which deem compliance with a permit to be compliance with the Act, and with the legislative history of section 404. Indeed, it is the Court’s view that it could deem EPA’s action to be unlawful without venturing beyond the first step of the analysis called for by Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). But it is undeniable that the provision in question is awkwardly written and extremely unclear. So, the Court will go on to rule as well that even if the absence of a clear grant of authority to EPA to invalidate a permit is seen as a gap or ambiguity in the statute, and even if the Court accords the agency some deference, EPA’s interpretation of the statute to confer this power on itself is not reasonable. Neither the statute nor the Memorandum of Agreement between EPA and the Corps makes any provision for a post-permit veto, and the agency was completely unable to articulate what the practical consequence of its action would be. Therefore, the Court will grant plaintiff Mingo Logan’s motion for summary judgment [Dkt. # 26] and deny defendant’s cross-motion [Dkt. # 46].

    CAA climate change case advances

    Here’s an excerpt from another decision from the federal court in D.C., this one issued by U.S. District Judge Frederick J. Scullin Jr., a senior U.S. District Judge sitting in Syracuse. The complaint in Center for Biological Diversity v. EPA (10-985 FJS, D.D.C.) claims EPA violated the Clean Air Act by failing to determine whether greenhouse gas and black carbon emissions from marine vessels and engines, aircraft engines, and non-road vehicles and engines “cause or contribute to dangerous air pollution.”

    Having carefully reviewed the entire record in this matter, the parties’ submissions and oral arguments, as well as the applicable law, and for the reasons stated at oral argument, the Court hereby ORDERS that the parties’ cross-motions for summary judgment are DENIED as moot with regard to Plaintiffs’ first claim because Defendant EPA has agreed in both its motion papers and during oral argument that it will respond to Plaintiffs’ three outstanding rulemaking petitions within ninety days of the date of this Order; and Defendant EPA is hereby ORDERED to do the same; and the Court further ORDERS that Defendant EPA’s motion for summary judgment is GRANTED and Plaintiffs’ motion for summary judgment is DENIED with regard to Plaintiffs’ fourth claim because Plaintiffs have not shown that Defendant EPA has unreasonably delayed in determining whether aircraft engine emissions cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare;1 and the Court further 1 The Court reminds Defendant EPA that the degree to which it is entitled deference and discretion is neither unlimited nor unchecked; and, although the Court finds that Defendant EPA has not yet unreasonably delayed in making an endangerment determination under section 231 of the CAA regarding emissions from aircraft engines, such a finding does not entitle Defendant EPA to delay unduly in taking the appropriate agency action.

    Plaintiffs are Center for Biological Diversity, Center for Food Safety, Friends of the Earth, International Center for Technology Assessment and Oceana.

    Scullin ordered that a telephone conference take place on June 26.

    FOIA opinion (Public Employees for Environmental Responsibility v. United States Section, International Boundary and Water Commission, U.S.-Mexico, 11-261-BJR, D.D.C.)

    Coming up Thursday . . . the long-awaited report from the NRC on the Bay-Delta.

    New Report Examines Water and Environmental Management in Calif. Bay-Delta

    On Thursday, March 29, the National Research Council will hold a one-hour telephone news conference to release its new report, SUSTAINABLE WATER AND ENVIRONMENTAL MANAGEMENT IN CALIFORNIA’S BAY-DELTA.

    Supplied by the Sacramento and San Joaquin rivers and their tributaries, the California Bay-Delta ultimately flows into San Francisco Bay and the Pacific Ocean.  Water-pumping stations divert water from the delta, primarily to supply Central Valley agriculture and metropolitan areas in southern California, the Bay Area, and in the delta region.  An increasing population and the operation of the engineered water-control system have substantially altered the delta ecosystem, including its fish species.  In addition, conflicts among various water users have grown, and there are sharp differences of opinion concerning the timing and amount of water that can be diverted from the delta for agriculture and municipal and industrial purposes and how much water, and of what quality, is needed to protect the delta ecosystem.

    The new report examines the factors affecting fish species in the delta, reviews future water-supply and delivery options, identifies gaps in knowledge, and advises on the degree of delta restoration that is likely attainable, while maintaining both an environmentally sustainable ecosystem and a reliable water supply.

    From SCI v. Salazar: “For the reasons explained below, the motions for intervention are granted in part as to FOA and DOW, and denied as to HSUS and Born Free USA.”

    Sacketts prevail unanimously in Supreme Court

    Posted by Steve Davies at 12:51 am Clean Water Act, Court calls, Daily Links, EPA, Supreme Court, Wetlands
    Mar 232012

    Chantell and Michael Sackett have won their Supreme Court case with nary a dissent. All nine justices agreed that the Idaho landowners should be allowed to challenge the Environmental Protection Agency’s Compliance Order in court.

    There were, however, two concurrences, from the left and the right of the court.

    Justice Ruth Bader Ginsburg said she was with her colleagues so long as it was clear they were not taking any position on whether the Sacketts can challenge the terms and conditions of the Compliance Order itself. Considering that the court was saying that the landowners can contest EPA’s jurisdictional call, it’s not clear how that helps the agency, but here’s what she said:

    JUSTICE GINSBURG, concurring.

    Faced with an EPA administrative compliance order threatening tens of thousands of dollars in civil penalties per day, the Sacketts sued “to contest the jurisdictional bases for the order.” Brief for Petitioners 9. “As a logical prerequisite to the issuance of the challenged compliance order,” the Sacketts contend, “EPA had to determine that it has regulatory authority over [our] property.” Id., at 54–55. The Court holds that the Sacketts may immediately litigate their jurisdictional challenge in federal court. I agree, for the Agency has ruled definitively on that question. Whether the Sacketts could challenge not only the EPA’s authority to regulate their land under the Clean Water Act, but also, at this pre-enforcement stage, the terms and conditions of the compliance order, is a question today’s opinion does not reach out to resolve. Not raised by the Sacketts here, the question remains open for another day and case. On that understanding, I join the Court’s opinion.

    Then Justice Samuel Alito weighed in, using language that, at least to this casual observer of the Supreme Court, seemed to be more politically minded than one usually sees:

    The Court’s decision provides a modest measure of relief. At least, property owners like petitioners will have the right to challenge the EPA’s jurisdictional determination under the Administrative Procedure Act. But the combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA’s tune.

    Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act.

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