Jul 092014

July 9 — In his opening statement at a markup of the Interior and Environment spending bill, subcommittee chairman Ken Calvert (R-Calif.) made a point of addressing some of the ESA provisions:


Rep. Ken Calvert (R-Calif.), before subcommittee hearing on FY 2015 Interior-Environment appropriations bill (Click for video of Calvert)

“This subcommittee has no interest in forcing any species to go extinct. What we’re concerned about is federal regulatory action based more on arbitrary legal deadlines than on common sense. Nowhere is this more evident than with sage-grouse.

“States are rightfully concerned that a federal takeover of sage-grouse will jeopardize existing conservation partnerships with states and private landowners which are necessary to save sage-grouse. This takeover would eliminate jobs and curtail future job growth; devastate state and local economies; and undermine the nation’s ability to develop conventional and renewable resources for energy independence.

“So long as sage-grouse are not under imminent threat of extinction, cooperative conservation must be given a chance to work. That is why this bill includes a one-year delay on any decision to list sage-grouse along with a strong cross-cutting budget to help implement these collaborative conservation plans.”



SEC. 116. None of the funds made available by this Act or any other Act may be used before October 1, 2015, for any study, nor to withdraw or finalize any rule, with regard to the valley elderberry longhorn beetle under the Endangered Species Act of 1973 (16 U.S.C. 1351 et seq.), except that the Secretary of the Interior shall accept for the record additional public comments on the Peer Review of the Scientific Findings in the Proposed Rule to Delist the Valley Elderberry Longhorn Beetle, dated January 2013, for a period of no less than 180 days following the date of the enactment of this Act.


SEC. 117. None of the funds made available by this or any other Act may be used by the Secretary of the Interior to write or issue pursuant to section 4 of the Endangered Species Act of 1973 (16 U.S.C. 1533)—

(1) a proposed rule for greater sage-grouse (Centrocercus urophasianus);
(2) a proposed rule for the Columbia basin distinct population segment of greater sage-grouse;
(3) a final rule for the bi-state distinct population segment of greater sage-grouse; or (4) a final rule for Gunnison sage-grouse (Centrocercus minimus).


SEC. 118. The United States Fish and Wildlife Service shall release for public comment and submit for scientific peer review not later than December 30, 2015, individual or multi-species recovery plans for the Sierra Nevada yellow-legged frog; the northern distinct population segment of the mountain yellow-legged frog; and the Yosemite toad. The plans shall include analyses of social and economic impacts of implementing recovery actions as well as efforts to minimize such impacts as required by the policy published on July 1, 1994 (59 Fed. Reg. 34272 et seq.).


SEC. 429. None of the funds made available in this Act or any other Act for any fiscal year may be used to develop, adopt, implement, administer, or enforce any change to the regulations and guidance in effect on October 1, 2012, pertaining to the definition of waters under the jurisdiction of the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.), including the provisions of the rules dated November 13, 1986 and August 25, 1993, relating to said jurisdiction, and the guidance documents dated January 15, 2003 and December 2, 2008, relating to said jurisdiction.


SEC. 430. None of the funds made available by this Act may be used to develop, carry out or implement (1) guidance, policy, or directive to reinterpret or change the historic interpretation of 30 C.F.R. § 816.57, which was promulgated on June 30, 1983 by the Office of Surface Mining Reclamation and Enforcement of the Department of the Interior (48 Fed. Reg. 30,312); or (2) proposed regulations or supporting materials described in the Federal Register notice published on June 18, 2010 (75 Fed. Reg. 34,667) by the Office of Surface Mining Reclamation and Enforcement of the Department of the Interior.


SEC. 432. None of the funds made available by this Act may be used to develop, propose, finalize, administer, or implement the National Ocean Policy developed under Executive Order 13547. Not later than 60 days after the date on which the President’s fiscal year 2016 budget request is submitted to the Congress, the President shall submit a report to the Committees on Appropriations of the House of Representatives and the Senate identifying all Federal expenditures by fiscal year since 2011, by agency, account, and any pertinent subaccounts, for the development,  administration, or implementation of such National Ocean Policy. The President’s budget submission for fiscal year 2016 shall identify all funding proposed for the implementation of such National Ocean Policy.


SEC. 439. None of the funds made available in this Act or any other Act may be used by the Environmental Protection Agency to develop, adopt, implement, administer, or enforce any change to the regulations in effect on October 1, 2012, pertaining to the definitions of the terms “fill material” or “discharge of fill material” for the purposes of the Federal Water Pollution Control Act (33 U.S.C. 1251, et seq.).

A few quotes

Rep. Harold Rogers (R-Ky.), chairman of the full appropriations committee, also spoke. A couple of highlights:

Administration “has tried to find new regulations that hamper economic activity.”

On waters of the U.S. proposal: “EPA seeks to gain jurisdiction over most of the country.”

On getting requested information from agencies. No agency, he says, is worse than EPA; “they just simply will not respond to inquiries.” EPA’s congressional affairs and budget office funding cut by 50 percent. Funding for EPA Administrator’s office also cut by half. “So let the word go forth. We want info.”

Moran: “Obviously there are going to be amendments at the full committee level. This is as good a bill … as we could have gotten out of subcommittee.” The issues “will be fully debated at the full committee level.”

Nov 182011

The D.C. Circuit Court of Appeals today affirmed a lower court decision finding that BLM complied with NEPA and FLPMA when it prepared an Environmental Impact Statement for the Pinedale Anticline natural gas project in Wyoming (Theodore Roosevelt Conservation Partnership v. Salazar, 10-5386, 11/18/2011).

Sage-grouse on the Pinedale Anticline (pic from operators' web page)

Circuit Judges David B. Sentelle (author), Judith W. Rogers and Thomas B. Griffith determined that BLM reasonably defined its objective, examined an adequate range of alternatives, and rationally balanced competing interests when it approved an increase in wells and year-round drilling in certain areas, instead of seasonal restrictions to protect wildlife.

The nearly 200,000 acres of the PAPA (the Pinedale Anticline Project Area) include the third-largest natural gas field in the United States. But it also includes habitat for Greater sage-grouse, a candidate species under the Endangered Species Act, as well as for mule deer and pronghorn. TRCP contended that BLM should not have abandoned the seasonal restrictions and should have provided larger buffer zones to mitigate for the effects on sage-grouse.

The court said, however, that “even where TRCP offers evidence that a particular mitigation measure likely will be ineffective, it fails to provide any other solution that still would permit significant recovery of natural gas—a use [the Federal Land Policy Management Act (FLPMA)] requires the Bureau to balance with conservation. Specifically, TRCP argues that there is no evidence that the Bureau’s one-quarter-mile buffer for greater sage-grouse leks will prevent the sage-grouses from abandoning their leks or attending in smaller numbers. The Bureau concedes that one-quarter-mile buffers ‘will not avoid adverse consequences to the greater sage grouse,’ but the record shows that TRCP’s recommended two-mile buffer would prevent natural gas extraction in nearly the entire PAPA. Again, FLPMA prohibits only unnecessary or undue degradation, not all degradation.”

As to the goals of the project, “Nothing in the record demonstrates that preventing all declines in wildlife populations was ever the Bureau’s management objective,” the opinion says. “TRCP calls the Bureau’s stated objective ‘unreasonably narrow’ because it focuses only on the operators’ need to increase production, but TRCP misreads the Bureau’s explicit statement of purpose and need,” the court said. ” The Bureau does not state a purpose to enact or adopt the operators’ proposal to some degree; rather, its purpose is to ‘act upon’ that proposal.  The former language might be unreasonably narrow to the extent it presupposes approval of the proposal, thereby limiting the alternatives to be analyzed to only those that would enact the proposal.”

BLM also adequately examined the impact of the proposed drilling on hunting and wildlife populations the court said. Here’s an excerpt:

“The Bureau also engages in detailed analysis of the proposed development’s effects on the wildlife the TRCP members hunt, including mule deer and greater sage-grouse.  This analysis concludes that surface disturbance and loss of habitat function are likely to adversely impact the populations of several game species.  Given the direct and intuitive link between a decrease in game species and a corresponding decrease in opportunities to hunt those species, such an analysis reasonably supports the Bureau’s conclusion that hunting opportunities are likely to decrease.  Taken as a whole, the Bureau’s analysis of the proposed development’s impact on game species and hunting opportunities is ‘tolerably terse’ rather than ‘intolerably mute.’  See City of Alexandria, 198 F.3d at 870-71. We conclude that the Bureau’s discussion satisfies its hard-look mandate.”

Nor did BLM fail to look closely at whether the drilling would cause “unnecessary or undue degradation,” one of the standards in FLPMA.

Opined the court: “[B]y following FLPMA’s multiple-use and sustained-yield mandates, the Bureau will often, if not always, fulfill FLPMA’s requirement that it prevent environmental degradation because the former principles already require the Bureau to balance potentially degrading uses—e.g., mineral extraction, grazing, or timber harvesting—with conservation of the natural environment.  If the Bureau appropriately balances those uses and follows principles of sustained yield, then generally it will have taken the steps necessary to prevent unnecessary or undue degradation.”

“In adopting the 2008 Record of Decision, the Bureau recognized the primary competing uses of the PAPA: the recovery of natural gas from the third-largest natural gas field in the continental United States and recreational use of the PAPA’s other natural resources. Pursuant to its multiple-use mandate, the Bureau decided to allow additional natural gas extraction in the PAPA while implementing significant measures to mitigate the degradation the Bureau conceded would be necessary to allow significant recovery. The record supports the Bureau’s determination that these mitigation measures would be adequate to prevent degradation that is unnecessary to, or undue in proportion to, the natural gas development that the 2008 Record of Decision permits.”

The case was argued before the appeals court panel Sept. 20, nearly a year after U.S. District Judge Richard J. Leon issued his decision below.

Background (from the decision)

The PAPA encompasses just over 198,000 acres of federal, state, and private land in western Wyoming.  It contains what is now considered the third-largest natural gas field in the United States (Pinedale Field).  The PAPA also provides other natural resources, including recreational opportunities and wildlife habitat.  In particular, the PAPA supports part of the “winter range” for mule deer and pronghorn, which serves as survival habitat during harsh winter conditions.  The PAPA also provides year-round habitat for part of a significant population of the greater sage-grouse. This habitat includes mating-display grounds called leks as well as brood-rearing areas and wintering areas.  Mule deer, pronghorn, and sage-grouse are game species of particular interest to this region’s hunters.

The Bureau manages the roughly 80 percent of the federally owned land and resources in the PAPA.  The government has leased most of its mineral resources, including most of the Pinedale Field, to oil and gas companies (the Operators). Energy development in the PAPA remained negligible until the 1990s, when new drilling technology allowed for commercially practicable recovery of the PAPA’s natural gas.

More info

District court citation: Theodore Roosevelt Conservation P’ship v. Salazar, 744 F. Supp. 2d 151 (D.D.C. 2010)

Theodore Roosevelt Conservation Partnership page

TRCP FAQ on litigation

Complaint in district court (10-1047, D.D.C.)

TRCP appeals district court decision (press release, 12/15/2010)

Pinedale Anticline Project Office (BLM page) and SEIS page

Pronghorn, sage grouse still above matrix “triggers” (Joy Ufford, Sublette (Wyo.) Examiner, 11/7/11)