Jun 092015
 

WOTUS rule also targeted

The House Appropriations Committee's proposed spending bill for the Department of the Interior would remove gray wolves in Wyoming and the Great Lakes from the list of threatened and endangered species.

The bill also would delay for a year any decision on listing of the greater sage-grouse by prohibiting the spending of any money on a proposal for the bird. Presumably, however, the Fish and Wildlife Service could continue to work on the matter.

The committee issued a press release this morning. The full text of the bill is here.

The Center for Biological Diversity was quick to criticize the bill. Brett Hartl, CBD's endangered species policy director, called it "another cynical attack on science and the Endangered Species Act that will result in wolves being mindlessly slaughtered in the few places where they have begun to recover."

Here is the text of some riders in the bill:

SAGE-GROUSE

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.

IVORY

SEC. 120. None of the funds made available by this or any other Act may be used to draft, prepare, implement, or enforce any new or revised regulation or order that—

(1) prohibits or restricts, within the United States, the possession, sale, delivery, receipt, shipment, or transportation of ivory that has been lawfully imported into the United States;

(2) changes any means of determining, including any applicable presumptions concerning, when ivory has been lawfully imported; or

(3) prohibits or restricts the importation of ivory that was lawfully importable into the United States as of February 1, 2014.

REISSUANCE OF FINAL RULES [GRAY WOLF]

SEC. 121. Before the end of the 60-day period beginning on the date of the enactment of this Act, the Secretary of the Interior shall reissue the final rule published on December 28, 2011 (76 Fed. Reg. 81666 et seq.) and the final rule published on September 10, 2012 (77 Fed. Reg. 55530 et seq.), without regard to any other provision of statute or regulation that applies to issuance of such rules. Such reissuances (including this section) shall not be subject to judicial review.

NORTHERN LONG-EARED BAT

SEC. 122. Before the end of the 60-day period beginning on the date of the enactment of this Act, the Secretary of the Interior shall amend the interim rule pertaining to the northern long-eared bat published by the Department of the Interior in the Federal Register on April 2, 2015 (80 Fed. Reg. 17974 et seq.), only in such a way that—

(1) take incidental to any activity conducted in accordance with the habitat conservation measures identified at pages 18024 to 18205 of volume 80 of the Federal Register (April 2, 2015), as applicable, is not prohibited; and

(2) the public comment period for such interim rule is reopened for not less than 90 days.

WATERS OF THE UNITED STATES

SEC. 422. 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.

STREAM BUFFER

SEC. 423. None of the funds made available by this Act may be used to develop, carry out, or implement

(1) any 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. 30312); or (2) proposed regulations or supporting materials described in the Federal Register notice published on June 18, 2010 (75 Fed. Reg. 34667) by the Office of Surface Mining Reclamation and Enforcement of the Department of the Interior.

LIMITATION ON USE OF FUNDS FOR NATIONAL OCEAN POLICY

SEC. 425. None of the funds made available by this Act may be used to further implementation of the coastal and marine spatial planning and ecosystem-based management components of the National Ocean Policy developed under Executive Order 13547.

DEFINITION OF FILL MATERIAL

SEC. 429. 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.).

CHESAPEAKE BAY INITIATIVE

SEC. 431. Section 502(c) of the Chesapeake Bay Initiative Act of 1998 (Public Law 105–312; 16 U.S.C. 461 note) is amended by striking ‘‘2015’’ and inserting ‘‘2017.’’

EXTENSION OF GRAZING PERMITS

SEC. 432. The terms and conditions of section 325 of Public Law 108–108 (117 Stat. 1307), regarding grazing permits issued by the Forest Service on any lands not subject to administration under section 402 of the Federal Lands Policy and Management Act (43 U.S.C. 1752), shall remain in effect for fiscal year 2016.

AVAILABILITY OF VACANT GRAZING ALLOTMENTS

SEC. 433. The Secretary of the Interior, with respect to public lands administered by the Bureau of Land Management, and the Secretary of Agriculture, with respect to the National Forest System lands, shall make vacant grazing allotments available to a holder of a grazing permit or lease issued by either Secretary if the lands covered by the permit or lease or other grazing lands used by the holder of the permit or lease are unusable because of drought or wildfire, as determined by the Secretary concerned. The terms and conditions contained in a permit or lease made available pursuant to this section shall be the same as the terms and conditions of the most recent permit or lease that was applicable to the vacant grazing allotment made available. Section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332) shall not apply with respect to any Federal agency action under this section.

PROTECTION OF WATER RIGHTS

SEC. 434. None of the funds made available in this or any other Act may be used to condition the issuance, renewal, amendment, or extension of any permit, approval, license, lease, allotment, easement, right-of-way, or other land use or occupancy agreement on the transfer of any water right, including sole and joint ownership, directly to the United States, or any impairment of title, in whole or in part, granted or otherwise recognized under State law, by Federal or State adjudication, decree, or other judgment, or pursuant to any interstate water compact. Additionally, none of the funds made available in this or any other Act may be used to require any water user to apply for or acquire a water right in the name of the United States under State law as a condition of the issuance, renewal, amendment, or extension of any permit, approval, license, lease, allotment, easement, right-of-way, or other land use or occupancy agreement.

Jul 102014
 

U.S. District Judge Barbara Jacobs Rothstein will not reopen a case against the Interior Department over its 2008 stream buffer zone rule (Coal River Mountain Watch v. Jewell, 08-2212 BJR, D.D.C., 7/9/14).

In February, Rothstein found in a separate case that the Office of Surface Mining should have consulted under Section 7 of the ESA before promulgating the 2008 rule (National Parks Conservation Association v. Jewell, 09-115 BJR, D.D.C). She vacated the rule and did not rule on other claims brought by NPCA. She also dismissed the Coal River Mountain Watch action as moot.

Coal River and nine other environmental plaintiffs claimed, however, that they were "still entitled to a decision from the court as to whether, in addition to the [ESA], OSM’s promulgation of the 2008 Rule violated the SMCRA, the APA, and the NEPA," Rothstein said in her July 9 order.

"The Coal River Plaintiffs have not met their burden of showing extraordinary circumstances, such as an intervening change of controlling law or the availability of new evidence, which would warrant granting their motion. Rather than point to extraordinary circumstances, the Coal River Plaintiffs instead ask this court to reconsider arguments that were previously made and rejected, arguing that this court committed clear legal error in deciding that their claims are moot."

But the judge said the plaintiffs' claims are indeed moot, and any opinion she might issue on whether the 2008 rule violated the APA, CWA or NEPA "would necessarily be advisory, something a federal district court is prohibited from doing."

Stream buffer zone rule could go bye-bye

 Posted by on September 12, 2013
Sep 122013
 

Judge in D.C. indicates desire to set aside reg for failure to consult

A 2008 rule designed to protect streams from the impact of coal mining will probably be set aside because the Office of Surface Mining did not consult with the Fish and Wildlife Service on the regulation's impact on listed species.

That certainly appeared to be the inclination of U.S. District Judge Barbara J. Rothstein, who held a status conference on legal challenges to the Stream Buffer Zone rule today (Thursday, Sept. 12) in her courtroom in Washington, D.C. (National Parks Conservation Association and Coal River Watch v. Jewell, 09-115 BJR, D.D.C.).

Nothing of import has happened in the case for about three years, Rothstein noted, which has had the effect of leaving  the 2008 rule in place, despite numerous flaws.

The judge said that as she was reading through the briefs prior to the hearing, "it crossed my mind that it was time for some rulings in the case."

Later, near the end of the approximately one-hour status conference, she said the case was "an example of what happens" when a case is stayed for a long time: "It doesn't get better, it just gets worse."

The government has asked Rothstein to vacate the 2008 rule and leave the 1983 rule in its place while OSM goes through another public comment period in an attempt to refashion an acceptable rule. In addition to the failure to consult, OSM recently conceded it had misplaced thousands of (admittedly, identical) public comments.

Invalidation would be acceptable to NPCA but not, it appears, to another group of plaintiffs led by Coal River Mountain Watch, which wants Rothstein to decide all the issues in the case, not just the ESA claims (Coal River Mtn. Watch v. Jewell, 08-2122). Those plaintiffs' attorney said the rule was harming people today.

"We would submit you have to consider all the deficiencies in the rule," he said.

The National Mining Association and its allies want the judge to keep the 2008 rule in place. Their attorney, Kirsten Nathanson of Crowell & Moring, argued that Rothstein should defer to an earlier ruling by District Judge Henry Kennedy, who had declined to vacate the rule.

But Rothstein wasn't fond of the "vacatur" terminology, preferring instead to speak of "setting aside" an "invalid" rule. Longtime Justice Department attorney Mark Brown said there was no dispute among the parties that OSM hadn't consulted under Section 7 of the ESA.

Here's the "minute order" posted in the case docket today:

MINUTE ORDER: The parties having appeared for a status conference before Judge Barbara Jacobs Rothstein on September 12, 2013 at 10:00 am, it is HEREBY ORDERED that in the interest of expediting the issues so that they coincide with the companion case, National Parks Conservation Association v. Jewell, Case No. 9-115, the scheduling order [Dkt. Nos. 41 and 42] is modified accordingly: (1) all motions for summary judgment (including cross motions) will be filed on or before October 15, 2013; (2) all responses will be filed on or before November 15, 2013; and (3) all replies will be filed on or before December 1, 2013. Signed by Judge Barbara Jacobs Rothstein on 9/12/13. (Reed, Heather) (Entered: 09/12/2013)

 

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