Aug 052015

Editor's note: We're posting the full text of this press release because FWS has yet to post it on its web page (which it now has). Some context: The service was threatened with a lawsuit not too long ago by Public Employees for Environmental Responsibility, which alleged that "swim-with" tours violated the ESA, MMPA and National Wildlife Refuge Act. Here's coverage of FWS emails expressing concern that people were becoming too cozy with the manatees.

Update: PEER says the FWS action is not part of any settlement with the group; PEER is now looking at its legal options, executive director Jeff Ruch said.

FWS news release

Crystal River NWR Complex
1502 SE Kings Bay Dr.
Crystal River, FL 34429


August 5, 2015

Media Contacts: Ivan Vicente, 352-563-2088 x211,
Tom MacKenzie, 404-679-7291,

Fish and Wildlife Service Proposes Winter Restrictions on Swimming, Paddling with Manatees at Florida’s Three Sisters Springs

Public Invited to comment on proposed changes to maintain safe environment for wintering manatees and people

New long-term management steps are being proposed to address record numbers of manatees wintering in Three Sisters Springs and substantial increases in the number of people wanting to see these endangered animals in their natural habitat.

The Service outlined three management alternatives in a draft Environmental Assessment (draft EA) it released today ranging from no change to current practices, to limiting swimming opportunities, and halting all in-water viewing. The draft EA examines protection measures under each alternative and proposes to move forward with Alternative C - an option that significantly limits, but does not altogether prohibit swimming with manatees.  These rules would be in effect each year from November 15 to March 31.

One of the additional measures being proposed to further protect manatees reduces the number of commercial special use permit holders allowed to access Three Sisters Springs from the current 44 to five beginning this fall.  A competitive process for applicants would be established as outlined in the appendices to the draft EA.  An annual administrative fee is being proposed for the five tour operators who could access the springs and would range between $970 and $1,200.  The additional proposed management steps would only apply to the 57-acre Three Sisters Springs cooperatively managed by the Service, the City of Crystal River, and the Southwest Florida Water Management District.

The public is invited to comment on these proposals within a 30-day comment period ending September 4.  Comments may be e-mailed to

“Three Sisters Springs is among the top three most frequented springs by manatees in the world,” said Andrew Gude, manager of Crystal River National Wildlife Refuge.  “It is also the only confined-water body in the United States open to the public while wintering manatees are present.”

“Understandably, more manatees in the springs attract more people who wish to experience them up close,” Gude continued. “We need to ensure human-to-manatee interactions occur in ways that limits potential viewing-related disturbance, while also making the most of this unique opportunity to strengthen support for these gentle and giant animals.”

Manatees are protected under the Endangered Species Act and Marine Mammal Protection Act, both of which prohibit ‘take’ – a term broadly meaning harm, including killing, injuring, and harassing.

During winter months, manatees gather in large numbers (sometimes exceeding 500), taking advantage of the warmer waters at Three Sisters Springs, part of the Service’s Crystal River National Wildlife Refuge.  Crowding paddlers and snorkelers taking the opportunity to get close to the manatees in the confined habitat of the springs may unintentionally displace manatees or otherwise affect their natural behaviors.

Additional steps outlined in Alternative C would provide a safer environment for manatees and people alike by limiting the number of people allowed to be in the water with the manatees in the springs at any one time, further restricting interactions with the animals, and reducing the number of tour operators permitted to lead swimming tours within the refuge.

Specifically, the new measures proposed in the draft EA’s preferred alternative (Alternative C) include:

  • Reducing the number of special use permits issued to in-water tour operators from 44 to five at Three Sisters Springs with each permit limiting the number of swimmers to four plus a certified guide per allotted time per visit. This means that no more than 29 swimmers will be allowed in the springs at a time.  This may include: 20 swimmers supervised by five guides. It also provides for two photographers supervised by two guides.  As manager of the springs, the Service may authorize additional in-water access for research and management purposes on a case-by-case basis.
  • Requiring special use permits for commercial photography and videography at Three Sisters Springs.  Flash photography would be prohibited.
  • Barring any swimming into the Three Sisters Springs using the narrow spring run during manatee season.  Kayaks, rafts, canoes or other floating craft will not be allowed into Three Sisters Springs.
  • Requiring swimmers to enter the springs only from a new floating platform attached to the boardwalk.
  • Requiring all in-water visitors to only wear black wet suits and barring the use of fins.
  • Instituting a standard of conduct for all in-water visitors to promote responsible, sustainable wildlife viewing.
  • Barring swimmers from using the Pretty Sister and Little Sister areas of the water.  Only manatees will be allowed in those two lobes.
  • Requiring all special use permits holders to have a City of Crystal River business license.
  • Prohibiting pets on the boardwalk.
  • Building an elevated viewing platform to enhance wildlife viewing and make the boardwalk compliant with the Americans with Disabilities Act.
  • Supporting the upcoming Southwest Florida Water Management District bioengineering project to stabilize the spring’s shoreline.

To provide the public an opportunity to learn more about the proposed measures, ask questions, and submit their written comments in person, the Service will hold an informational meeting on August 12, 2015, from 6:00 p.m. to 8:00 p.m. at Plantation Inn (Sable Room), 9301 W. Fort Island Trail, Crystal River, Florida, 34429.

The draft EA and related Appendices can be found at:

Mar 092015

Public Employees for Environmental Responsibility is planning to file a lawsuit to stop tours that allow people to swim with and touch "otherwise resting manatees," the group said.

The group sent a Notice of Intent to Sue today to Interior Secretary Sally Jewell, FWS Director Dan Ashe, and FWS Southeast Regional Director Cindy Dohner,  contending that FWS has been violating the Endangered Species, Marine Mammal Protection, and National Wildlife Refuge Administration acts "by actively facilitating significant physical harassment of manatees through issuing Special Use Pcrmits ("SUPs") to commercial dive shops for "swim with" programs within the Crystal River National Wildlife Refuge (''NWR''). Additionally, FWS has violated the law by failing to designate Kings Bay, Three Sister Springs, and Homosassa Springs as critical habitat for the Florida manatee under Section 4(b)(2) of the ESA, and by failing to provide sufficient sanctuary and refuge protection areas as mandated by the ESA and MMPA."

"Visitation at the refuge has increased dramatically in recent years, from 67,000 recorded visitors in 2010 to over 265,000 in-water visitors in 2014," PEER said. More than 30 dive shops have Special Use Permits and operate commercial "swim-with" programs at Crystal River, "with tourists touching and otherwise harassing the manatees."

Scroll down for PEER's links. Here is a link to one of the tour companies.



Posted on Mar 09, 2015

Washington, DC — Safeguards for the endangered Florida manatee need to be significantly strengthened, according to a Notice of Intent to Sue filed today by Public Employees for Environmental Responsibility (PEER). One principal objective of the action is to prohibit so-called “swim-with” tours that bring hundreds of swimmers into small shallow warm-water lagoons to touch otherwise resting manatees.The Florida manatee is one of the most endangered marine mammals in our coastal waters. Despite their size, they have low levels of body fat and a very slow metabolism, making them extremely vulnerable to cold and unable to survive long in water colder than 68ºF. Yet, the rare shallow warm-water springs manatees need in the winter are precisely those targeted by these increasingly popular swim-with tours.

Together with a group of naturalists and eco-tourist professionals, PEER charges the U.S. Fish & Wildlife Service with violating the Endangered Species Act, Marine Mammal Protection Act, and the Refuge Administration Act, which governs management of federal wildlife refuges. Today’s notice gives the Service 60 days to take action before the PEER-group is eligible to file suit in federal district court.

“Five years ago, we served a similar notice but agreed to hold off suing because the Service promised to make improvements,” stated PEER Counsel Laura Dumais who filed today’s notice. “In the succeeding years, the problems have only gotten worse and it has become clear that the Service has no intention of taking meaningful corrective action.”

Last week, the Fish & Wildlife Service issued a Final Environmental Assessment for Manatee Wildlife Viewing on Crystal River National Wildlife Refuge, Three Sisters Springs which contains very limited restrictions on human access and will likely make matters worse by concentrating the hordes of flailing swimmers in areas that the manatees must traverse to reach the limited protected zones. By contrast, the PEER action would –

• Ban “swim-with” programs and all other contacts that would put humans within 10 feet of a manatee, not just at Crystal [River] National Wildlife Refuge but all across the state;

• Expand no-human-access sanctuary areas so that manatees would have unimpeded access to Crystal Springs and Three Sisters Springs throughout the winter; and

• Designate the entire Kings Bay, Three Sister Springs, and Homosassa Springs as critical manatee habitat – something the Service has long admitted was warranted but has yet to do.

“People do not need to pet manatees to learn about or appreciate them,” added Dumais, noting that the Service recently issued a news release threatening fines for harassment of manatees by drones flying high above refuge waters while ignoring daily harassment by swimmers in the water directly on top of them. “We aim to ensure that the Service can no longer avoid addressing this widespread, obvious, and illegal harassment of endangered marine mammals.”


Feb 262015

News Release (2/26/15 and below))


Three Sisters Springs map: Proactive Precautionary
Management Measures of Three Sisters Springs:
In-spring Manatee closures. Credit: USFWS
Higher Quality Version of Image

U.S. Fish and Wildlife Service to Enact Additional Manatee Protection Measures at Three Sisters Springs

The U.S. Fish and Wildlife Service published its Final Environmental Assessment “Manatee Wildlife Viewing on Crystal River National Wildlife Refuge, Three Sisters Springs, Citrus County, Florida.”

“We appreciate the public’s support for our mission, and we carefully considered everyone’s comments,” said Andrew Gude, who manages Crystal River National Wildlife Refuge, as well as Lower Suwannee, Cedar Keys, and Chassahowitzka National Wildlife Refuges. “Thanks to that input, we hope we have reached the best way to protect manatees, and provide for positive experiences for people wanting to swim with these gentle giants.”

This allows the Service to implement the precautionary measures to avert disturbance of manatees from watercraft and manatee viewing activities for the remainder of the 2014 – 2015 manatee season.

“We will continue to study this complex issue as we plan for long term management in the upcoming Comprehensive Conservation Plan for the entire refuge,” said Gude.

After receiving input from the public, a proposal to restrict in-water visitation only between the hours of 10:00 a.m. to 5:00 p.m. was not adopted.  Due to the tidal influence on manatee movements, it was determined that limiting visitor use to these hours was overly restrictive and unsubstantiated.  The refuge will instead flexibly-manage opening and closing the springs on an intra-day basis using observations of tidal cycles and manatee numbers in Three Sisters Springs.

The following actions will now take effect for this season:

  1. Continue to implement temporary full closures to prohibit visitation inside the warm water springs located at Three Sisters Springs during extreme cold weather events and violations of the 12 prohibitions identified by the Kings Bay Manatee Protection Area Rule.
  2. Install an in-water, non-motorized vessel tie-up/disembarking area east of the warm water springs located at Three Sisters Springs, and allow management flexibility to prohibit vessels and large inflatable floats within the spring heads as well as the spring run in order to prevent manatee disturbance and potentially unsafe encounters with swimmers. Refuge staff and volunteers may use non-motorized vessels inside Three Sisters Springs to monitor human-manatee interactions. In-water access by non-motorized vessels for mobility-impaired individuals to Three Sisters Springs during manatee season will be provided through special use permit only.
  3. Guide the public to use the western half of the spring run extending into the warm water spring heads located at Three Sisters Springs to maintain an open channel for manatee ingress and egress.
  4. Create two expanded no-public entry areas within the spring heads by closing the eastern and western lobes known as Pretty Sister and Little Sister located on Three Sisters Springs.
  5. Require a Special Use Permit for the use of any type of flash photography inside the warm water springs at Three Sisters Springs.  Special Use Permits for diffused flash photography will only be issued for educational or research purposes. U.S. Fish and Wildlife Service Department of Management Authority Special Use Permits will be recognized by Crystal River National Wildlife Refuge for use of flash photography if photographers are a minimum of 20 feet from all manatees.
  6. Amend Special Use Permit conditions for Commercial Wildlife Observation Guides using the warm water springs at Three Sisters Springs to require the following specific stipulations: a City of Crystal River business license or exemption letter, in-water insurance for their clients, and an in-water guide to accompany the clients into the Three Sisters Springs.
  7. Implement an expedited communication plan to actively inform visitors and stakeholders of the proposed action.

The alternatives and scope of the affected environment for this Environmental Assessment were compiled after considering public comments and meetings for the Crystal River National Wildlife Refuge Comprehensive Conservation Plan.  They included public meetings on February 6, 2008; November 16, 18, and 20, 2010; December 2, 2010; January 4, 2011; July 7, 2011; March 19, 2013; and July 11, 2013.

The public provided about 5,000 written comments during the comment period.  The majority of the comments were non-governmental organizations’ form letters or petitions with multiple signatures.  Comments came from individuals, conservation organizations, property owners, tour operators, business owners, local officials, and other stakeholders.  The majority of the comments expressed support to protect manatees at Three Sisters Springs through varying levels of management.  A few opposed the interim measures, but did not provide substantive data or information for the Service to consider at this time.

Those expressing support generally either supported the interim measures as proposed with some minor modifications, or expressed concerns that it was not extensive enough.  The varying levels of management suggested ranged from complete closure of the springs to time allotments for visitors.

Some comments that were outside the scope of this Environmental Assessment were not responded to, but were noted for future reference during the formulation of the Crystal River National Wildlife Refuge Comprehensive Conservation Plan.   The Service expects to complete that planning effort with the support and input from the community in 2015.

The Final Environmental Assessment (PDF, 2.1MB)
Finding of No Significant Impact to Manatee (PDF, 300KB)

Jun 272013

The U.S. Supreme Court, led by Justice Samuel Alito, roamed far beyond the bounds of previous takings decisions to issue a decision Tuesday that "will result in long-lasting harm to America’s communities," law professor and takings expert John Echeverria predicted in an op-ed published yesterday by the New York Times.

The 5-4 ruling in Koontz v. St. Johns River Water Management District "creates a perverse incentive for municipal governments to reject applications from developers rather than attempt to negotiate project designs that might advance both public and private goals — and it makes it hard for communities to get property owners to pay to mitigate any environmental damage they may cause," Echeverria, who teaches at Vermont Law School, wrote in his op-ed.

The court's ruling came as a surprise, coming as it did after oral arguments where justices seemed to express " a spreading fear that maybe the entire regulatory apparatus of government might be at risk," longtime court reporter Lyle Denniston wrote in January.

"Credit lawyers for a state agency and the federal government for deepening this anxiety," Denniston said in a piece entitled "An ever-shrinking 'takings' claim."

The venerated precedents of Nollan and Dolan "did not seem to be working as the property owner’s shield, and a 'sky is falling' argument by government lawyers had been taken quite seriously on the bench," Denniston wrote. "The combination was obviously threatening to the claim of the landowner, Coy A. Koontz Jr., who had kept up the legal fight after his father had died."

The elder Koontz wanted to develop his land, but because it contained wetlands, the St. Johns River Management District said he could not move forward as planned. As Echeverria wrote, the district

"den[ied] an application by Coy A. Koontz Sr. to fill more than three acres of wetlands in order to build a small shopping center. The district made clear that it was willing to grant the permit if Mr. Koontz agreed to reduce the size of the development or spend money on any of a variety of wetlands-restoration projects designed to offset the project’s environmental effects. Because Mr. Koontz declined to pursue any of these options, the district denied the permit.

Naturally, attorneys for Koontz hailed the ruling.

“The Koontz family was challenging permit demands that were wildly excessive and had no connection to their land use proposal," said Pacific Legal Foundation attorney Paul J. Beard II. "Today, the court recognized that the Koontz family was the victim of an unconstitutional taking. The court’s message is clear: Government can’t turn the land use permitting process into an extortion machine."


Excerpt from SCOTUSblog:

Koontz found the District’s demands unreasonable, and he sued under a state law that permits property owners to recover money damages in the event of an unconstitutional taking. He argued that under the Supreme Court’s decisions in Nollan v. California Coastal Commission and Dolan v. City of Tigard, the District’s demands did not have the requisite “nexus” and “rough proportionality” to the effect his proposal would have on land use. After a trial and appeal, the Florida Supreme Court held that the suit must be dismissed because a takings claim was not an appropriate response to the District’s conduct. Specifically, the court held that Nollan and Dolan do not apply in this case for two reasons: first, those cases dealt with conditions on land use accompanying a permit that was approved, while in this case, the permit was denied; second, this case did not involve a taking of a particular property interest – for example, a piece of land – but instead only a demand for money (to pay the contractors).

The Supreme Court reversed. The Court first explained that the “unconstitutional conditions” doctrine, which prohibits the government from coercing people into giving up their constitutional rights, applies in this case because the conditions the District sought to place on the permits would constitute an unconstitutional “taking” without “just compensation.” The Court explained that Nollan and Dolan establish that the Fifth Amendment protects property owners from takings that occur in connection with applications for land-use permits, while permitting the government to obtain concessions that offset the public harms caused by certain land uses. Thus, “[u]nder Nollan and Dolan the government may choose whether and how a permit applicant is required to mitigate the impacts of a proposed development, but it may not leverage its legitimate interest in mitigation to pursue governmental ends that lack an essential nexus and rough proportionality to those impacts.”

Aug 082012

Scroll down for the article as prepared for the next issue of Endangered Species & Wetlands Report (

A Naples, Fla., man received 60 days of home confinement and three years' probation, and will have to pay fines totaling $10,000, including a community service payment of $5,000, for killing an endangered Florida panther. (Judgment) (Plea agreement)

When he finishes home confinement, Todd Alan Benfield will spend 15 weekends in a row (i.e., 30 days) in "intermittent incarceration" at the Collier County Jail.

He pled guilty this spring to having killed the cat two and a half years earlier, using a compound bow and a 3-blade broadhead-tipped arrow. The day after shooting it (Oct. 9, 2009), "Benfield and an associate moved the panther into the Woodland Grade area, in an attempt to conceal the animal," according to the Justice Department:

According to court documents, on October 8, 2009, Benfield was bow hunting along Woodland Grade, in the Golden Gate Estates area of Collier County. On that day, he used a tree stand to hunt for deer. From his tree stand, Benfield knowingly shot and killed a Florida Panther with his compound bow and a 3-blade broadhead-tipped arrow. The following day, Benfield and an associate moved the panther into the Woodland Grade area, in an attempt to conceal the animal. On October 10, 2009, Benfield removed his tree stand from the area in an effort to conceal the fact that he had killed the panther. On the same date, a Florida Fish and Wildlife Conservation Commission officer located the dead panther in a section of thick vegetation, in the Woodland Grade area. The officer determined that the dead panther had been dragged approximately 50 yards.

Don't shoot me

Story as prepared for ESWR

By Steve Davies

A Naples, Fla., man who killed a Florida panther with a crossbow was sentenced to 60 days of home confinement and ordered to pay a fine of $5,000 and a community service payment of $5,000.

Todd Alan Benfield also received three years of probation and must perform 200 hours of community service at the Florida Panther National Wildlife Refuge or the Rookery Bay National Estuarine Research Reserve.

In addition, Benfield must issue a public apology to be published in the Naples Daily News, and will not be allowed to hunt while on probation. He must take a hunter safety course and has been ordered to forfeit the compound bow, arrows, ladder tree stand, and accessories he used to shoot the panther, listed as an endangered species.

Benfield pled guilty on May 18. In a statement attached to the plea agreement, he apologized and said he shot the panther because he thought it “was competing and interfering with my hunting. I was wrong to have shot and killed a Florida panther.”

“I apologize to my local and national community and friends for my illegal activity and the negative [publicity that it may have brought to hunting. Please remember that local, state and federal wildlife officials are aggressive and on the lookout for these types of criminal violations. Learn from my mistake. Don’t repeat them.”

When confronted initially by Fish and Wildlife Service and FWC investigators, Benfield denied he had anything to do with the panther’s death. Shortly afterwards, however, law enforcement officials turned up evidence of the crime in his home and vehicle.

The Florida Wildlife Federation said the penalty should have been more severe. FWF President Manley Fuller said Benfield should have received the maximum fine called for in the Endangered Species Act, $100,000, and a lifetime revocation his hunting license.

On Oct. 8, 2009, Benfield was hunting deer from a tree stand in the Golden Gate Estates area of Collier County when he saw the panther. The next day, he and his associate moved it, and the day after that, he went back and removed his tree stand “in an effort to conceal the fact that he had killed the panther,” according to a news release from the U.S. Attorney’s Office of the Middle District of Florida.

The same day Benfield removed the tree stand, a Florida Fish and Wildlife Conservation Commission officer “located the dead panther in a section of thick vegetation, in the Woodland Grade area. The officer determined that the dead panther had been dragged approximately 50 yards.”

Jun 282012

Here's some Supreme Court news we overlooked: On Monday, the court, by not granting petitions for writs of certiorari filed by Alabama, Florida and Southeastern Federal Power Customers, essentially validated Atlanta's right to water from Lake Lanier (Docket).

The 11th Circuit Court of Appeals last year reversed a district court ruling, finding:

ACT and ACF basins

First, the district court erred in finding that it had jurisdiction to hear Alabama, SeFPC, and Apalachicola because the Corps has not taken final agency action. The three cases therefore must be remanded to the Corps in order to take a final agency action. Second, the district court and the Corps erred in concluding that water supply was not an authorized purpose of the Buford Project under the [Rivers and Harbors Act]. The Corps’ denial of Georgia’s 2000 water-supply request is therefore not entitled to Chevron deference, and the request must be remanded to the Corps for reconsideration. Third, the district court erred in finding that the 1956 Act, which authorized the Corps to contract with Gwinnett County to withdraw 10 million gallons of water per day, expired after 50 years. Gwinnett County’s contractual and just-compensation claims are without merit. Fourth, we also provide certain instructions to the Corps on remand. And finally, the Corps shall have one year to make a final determination of its authority to operate the Buford Project under the RHA and [1958 Water Supply Act].

Coverage of the non-decision decision can be found here, here and here (scroll over those links to see the sources).


More legal background, courtesy of SCOTUSBlog

These documents concern the D.C. Circuit's decision in Feb. 5, 2008, that an agreement to reallocate Lake Lanier’s storage space "constitutes a major operational change on its face and has not been authorized by Congress." The court reversed the district court's decision. Litigation continued in the 11th Circuit.

Docket: 08-199
Title: Georgia v. Florida, et al.
Issue: The validity of, and ability of Florida and Alabama to challenge, a settlement agreement involving water allocation from Lake Lanier in Georgia.

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.


Cyclargus thomasi bethunebakeri



Nov 292011

Opinion is here

Corps didn't properly review Fla. mall's effects: D.C. Cir. (from page 1)

The Army Corps of Engineers should have looked more closely at the expected impact on the threatened Eastern indigo snake from construction of a large shopping mall, the D.C. Circuit Court of Appeals has ruled (Sierra Club v. Van Antwerp, 10-5284).

The currently dormant Cypress Creek Town Center project, located outside Tampa, would result in displacement of more than 50 acres of wetlands, including habitat for the snake and the endangered wood stork.

In its Nov. 29 decision, the circuit court essentially did the opposite of U.S. District Judge Royce Lamberth, who had issued a scathing opinion finding against the Corps on the plaintiffs’ NEPA and Clean Water Act claims (Sierra Club v. Van  Antwerp, 719 F.Supp.2d 58 (D.D.C. 2010) (07-1756 RCL).

Instead, Circuit Judges Stephen Williams, Brett Kavanaugh and Merrick Garland upheld the Corps’ evaluation of alternatives as required by Section 404 under the CWA. The proposed mitigation is enough to compensate for the loss of the wetlands, which lack “uniqueness,” the court said, using the Corps’ word.

The plaintiffs had argued that the court should be skeptical about the value of wetlands creation as mitigation, given its often lackluster results. But the court said “the ultimate CCTC plan called for creation and preservation of substantial substitute wetlands, the sort of mitigation measures that we have found ‘sufficiently reduce the impact to a minimum.’ Michigan Gambling Opposition v. Kempthorne, 525 F.3d 23, 29 (D.C. Cir. 2008) (quoting TOMAC, 433 F.3d at 861).”

The court had no problem with the Corps’ acceptance of the developer’s reason for having more parking spaces than nearby malls, because there are more restaurants.

“[B]oth sides agree that CCTC’s parking ratio exceeds that of nearby malls,” the court said. “But CCTC defends its above-average ratio by pointing to the above-average proportion of restaurants in its project. While the Sierra Club does not contest the restaurant-parking link, it argues that there is no reason for so many restaurants. CCTC, in turn, seeks to justify the high proportion by saying that it aims to create more than a traditional mall. Whereas traditional malls use 4.8 percent of their square footage for restaurants, ‘lifestyle centers’ use 11.3 percent; CCTC, a self-described ‘town center,’ is between these two figures at 8.08 percent.”

“The Corps’ acceptance of CCTC’s parking ratio was not arbitrary or capricious in light of the practicability regulations,” which require the Corps to evaluate whether alternatives are practicable “in light of overall project purposes.” 40 C.F.R. § 230.10(a)(2). The regulations provide that “it will generally be assumed that appropriate economic evaluations have been completed, the proposal is economically viable, and is needed in the market place.”

The Corps also properly concluded that the impacts to the wood stork were not significant enough to warrant formal consultation, the court said. “[T]he Corps’ conclusions rested on the project’s mitigation measures, which will bring about a net gain of wood stork foraging habitat.”

Sierra Club, however, contended in its opening brief that the government did not “address near term adverse impacts on breeding colonies while off-site mitigation is being implemented.”

“Given the relatively marginal role of the lost habitat, it does not seem arbitrary or in contravention of its statutory mandate for the Corps to find that the mitigation’s more than ‘one-to-one replacement ratio’ made up for the temporary deprivation.” The court concluded.

Snake needed more scrutiny, court says

However, “[i]n both ESA and NEPA contexts, we . . . find that the Corps failed to adequately address indications of an adverse effect on the indigo snake.”

In both of its findings of no significant impact, the Corps did not address possible the fragmentation of snake habitat. The second time, it was after submission of a declaration by Dr. Kenneth Dodd,  who as  Staff Herpetologist for FWS’s Office of Endangered Species had written the rule listing the snake as threatened. Dodd said “the project site was an important ‘wildlife corridor’ linking protected areas to the north and south, [and] noted that ‘movements over large areas of fragmented habitats expose Eastern Indigo Snakes to increased road mortality,’ and that ‘the more edge there is in relation to protected habitat [i.e., ratio of perimeter to surface area], the less likely large snakes can be maintained.’ ”

Nevertheless, “In its second FONSI, issued in August 2009, the Corps again did not address the impacts of habitat fragmentation.”

Said the court: “Given Dr. Dodd’s expertise and experience, and the seeming logic of his analysis, as well as CCTC’s own acknowledgment of the snake’s vulnerability to fragmentation risk, we think his comment qualifies as the sort of ‘relevant and significant’ public comment to which an agency must respond, lest its action be arbitrary and capricious.  See Cape Cod Hospital v. Sebelius, 630 F.3d 203, 211 (D.C. Cir. 2011). Accordingly, we must remand for further explanation by the Corps of its determination that the project was ‘not likely to adversely affect’ the indigo snake.  We do not reach the issue of whether formal consultation is required, but the Corps must make some determination on the issue of habitat fragmentation, both for ESA and NEPA purposes.”



Sep 222011

A federal appeals court panel closely questioned a Justice Department attorney this morning about the Army Corps of Engineers ' decision to approve a permit in Pasco County, Florida, for a shopping center that would destroy more than 50 acres of wetlands, including habitat for the endangered Wood stork and threatened Indigo snake (Sierra Club v. Van Antwerp, 10-5284).

Snake in the grass (Photo of Drymarchon corais courtesy U-Georgia)

Two of the three judges appeared skeptical of the reasoning behind the Corps' May 2007 approval of the permit application from Sierra Properties, which wants to develop what it calls Cypress Creek Town Center. The project would include more than 2 million square feet of retail and commercial space, 630 multifamily housing units, and enough parking for up to 14,000 cars.

"One of three acres of wetlands on site – over 50 acres – and almost 10 acres of surface waters will be destroyed outright, nearly half to provide for parking alone," the brief filed by Sierra Club, Clean Water Action and Gulf Restoration Network said. Plaintiffs Chris Loy and Richard Somerville also sued the Corps.

The government is appealing a decision by U.S. District Judge Royce Lamberth (Sierra Club v. Van Antwerp, 07-1756 RCL, D.D.C.). "The Corps failed to prepare a required EIS for the project site pursuant to NEPA and failed to require the applicant to demonstrate that practicable alternatives were not available pursuant to CWA," Lamberth wrote in his June 30, 2010, opinion. He called the Corps' "[failure] to fulfill its statutory duties under NEPA and the CWA . . . a familiar course of action for the Corps when processing permit applications."

DOJ attorney Lane McFadden got some difficult questions from Circuit Judges Merrick Garland and Stephen Williams. Their fellow panelist, Circuit Judge Brett Kavanaugh, did not say much during the arguments.

Wood stork (FWS pic)

Garland focused on the Corps' failure to respond to comments from Dr. C. Kenneth Dodd, the staff herpetologist in the Fish and Wildlife Service's Office of Endangered Species at the time the snake was listed (and who, in fact, wrote the rule to list the snake).

"No one seems to dispute that he is the world's foremost expert on the Eastern Indigo snake," Garland said. Yet, "I don't see a response to the problem of destruction of the wildlife corridor or the fragmentation of its habitat."

The snake, McFadden replied, "has done very well in suburban settings."

The requirement for the service, he continued, "is not to respond to all comments but to make a reasoned decision." Garland ended McFadden's initial turn at the podium by saying he wanted to know more about connectivity.

Eric Glitzenstein argued for the plaintiffs/appellants/cross-appellees, so designated because while they essentially won at the district court level, they also were appealing Lamberth's determination that the FWS had complied with the ESA.

He started by highlighting what his clients considered a particularly egregious oversight: the Corps' alleged failure to adequately consider a critical question for wetlands on the site -- whether the parking envisioned was too much. In their brief, the environmental groups said that "even modestly reducing or consolidating some of the parking could have enormous benefits for the federally protected resources at issue."

In their appellate brief , the environmental groups pointed to a comment from the Simon Property Group, "at the applicant’s request," advising the Corps that the “entire center should park at 4.5 spaces per 1,000 square feet of leasable floor space.” The actual ratio is above 5 spaces per 1,000 square feet of retail space.

The brief went on to say, "Another company that has developed major malls in the same area and whose views were also solicited by Sierra Properties confirmed that this would be a 'typical' ratio for such a project. The Corps, however, never addressed this evidence."

"This is exactly the kind of point the Corps should have responded to in the record," Glitzenstein told the judges.


In their brief, the environmental groups and individuals who sued the Corps summarized the district court opinion:

Based on its review of the Record and pertinent legal standards, the district court held that the Corps violated the CWA by allowing Sierra Properties to skew the economic analysis so that practicable alternatives minimizing wetlands destruction would appear impracticable. In addition, the court held that the extensive CCTC development requires an EIS because it will impair important wildlife habitat and other federally protected resources, and because it has already resulted in unlawful pollution of a valuable water body despite the developer’s insistence that this would not occur. The court rejected Plaintiffs’ claim that formal consultation under the ESA is required, although the Court recognized that the project will likely have adverse effects on the habitat of the threatened Indigo Snake and the endangered Wood stork.

Here's more from that brief

As the district court held, the notion that it was genuinely “impracticable” within the meaning of the CWA regulations to save wetlands by eliminating some of the more than 12,200 individual paved parking spaces or to consolidate them in garages is unsupported by the record, contrary to the 404 Guidelines, and would render the CWA’s impracticability analysis a meaningless exercise.

Appellate briefs