Weekly Newsletter – 4/22/16

Home/Newsletters/Weekly Newsletter – 4/22/16

Weekly Newsletter – 4/22/16

Issues

Public comment open again for the burying beetle. This week, the U.S. Fish and Wildlife Service posted in the Federal Register an invitation for public comment on incidental take permit applications for the American burying beetle “resulting from activities associated with the geophysical exploration (seismic) and construction, maintenance, operation, repair, and decommissioning of oil and gas well field infrastructure and pipelines within Oklahoma.”

The notice states that, if approved, permits could be issued under the approved Amended Oil and Gas Industry Conservation Plan Associated with Issuance of Endangered Species Act Section 10(a)(1)(B) Permits for the American Burying Beetle in Oklahoma. Back in March, the Obama administration announced it would review the status of the American burying beetle to determine if it should be removed from the endangered species list. The Independent Petroleum Association of America (IPAA), alongside fellow petitioners, had notified the U.S. Fish and Wildlife Service in January of its intent to sue the agency after it failed to announce its 90-day finding on the petition to delist the beetle.

Experts say litigation fees responsible for low ESA efficacy. Witnesses at a House Oversight and Government Reform Committee hearing Wednesday said there are many species on the endangered species list that do not belong there. The experts testified that the Endangered Species Act lacks a proper process for delisting species, and likened the ESA to the Eagles’ “Hotel California” — you can check in any time you like, but you can never leave. Critics of the ESA noted that 2,258 species are currently protected under the Act, but only 63 have been delisted since the law’s enactment in 1973.

The law’s critics said money was to blame for the ESA’s ineffectiveness. “A primary incentive to litigation that’s a barrier to delisting is money,” said Lowell Baier, who is writing a book about the ESA. “Money, money, money, it’s that simple. It’s the reimbursement of legal fees,” he added. Joel Bousman, a Wyoming county commissioner, said environmental groups know the government will settle with them and keep species that should be removed from the list under federal protection. “It is troubling to us that the goal of the Endangered Species Act appears to be permanent and perpetual listings rather than species recovery,” Bousman said.

Subcommittee Chairwoman Cynthia Lummis (R-WY) agreed with the panelists, stating “Such litigation does little more than benefit lawyers and diverts time and resources away from species conservation. What is needed is boots on the ground instead of briefcases in the courtroom.”

USFWS criticized at House hearing for redefining ‘critical habitat.’ Republicans and witnesses criticized the U.S. Fish and Wildlife Service at a House Natural Resources Committee hearing this week for updating their definition of “destruction or adverse modification” of critical habitat and changing their policies for designating or excluding critical habitat. In February, the FWS finalized new rules that expand the area eligible for designation as critical habitat, including areas that are not presently, and may never be, necessary to the conservation of the species.

“The services have essentially granted to themselves authority to designate any area that may, someday in the future, become suitable for a species – even in places where there is absolutely no evidence currently that the species have existed there,” Chairman Rob Bishop (R-UT) said at the hearing. “In the future, I expect the agencies to ask Appropriations for tarot cards and Ouija boards so they can do the work under this expanded rule.” His sentiments were echoed by landowners, ranchers, and developers present at the meeting, who worry the changes will increase regulatory burdens and create legal uncertainty.

Some tried to downplay the importance of the rule changes at the hearing, with Ranking Member Raúl Grijalva (D-AZ) noting, “Reaching down into these obscure and largely inconsequential ESA rules to find abuses of power is a serious stretch, even for

[Republicans].” FWS Director Dan Ashe, a witness at the hearing, also stated “the impact of critical habitat is not what many people make it out to be.”

Obama Administration cripples planned overhaul of ESA petition process. The Obama Administration scaled back its proposal to change the process through which members of the public can petition the U.S. Fish and Wildlife Service or National Marine Fisheries Service to review the status of species under the Endangered Species Act. Petitioners would now need to send a notifying letter to relevant state wildlife agencies at least 30 days prior to submitting a petition to the federal agencies. The Administration, however, removed a requirement that would have required petitioners to certify they had provided all relevant scientific information on the species.

The Independent Petroleum Association of America’s Neal Kirby praised the proposal last year, writing: “Over the years, we have been pleased to see the growing number of voices – and finally even the Obama Administration’s own – joining in the chorus and signifying changes are needed to once again re-focus on the original purpose of the law: true species recovery.” Conservation groups, however, complained that the changes were overly burdensome for petitioners and violated the Paperwork Reduction Act, and succeeding in softening the Administration’s actions.

Interior Secretary calls sage-grouse efforts “model for the future of conservation.” During a speech celebrating National Park Week, Interior Secretary Sally Jewell held up the collaboration between Western states, private industry, and federal agencies to prevent the greater sage-grouse from being listed as an endangered species as a model for future conservation efforts. “That’s the model for the future of conservation,” she said. “That big picture, roll up your sleeves, get input from all stakeholders kind of planning is how land management agencies should orient themselves in the 21st century.”

Her comment was part of a larger overall message in which she called for a major “course correction” in the way public lands are managed. She warned that public lands are “at risk of being sold off for a short-term gain to the highest bidder.” Developers, industry, and ranchers have noted in recent years that the Obama administration has closed off large swaths of the West to development, grazing, and energy exploration and extraction. Jewell offered the “sage-grouse model” as an opportunity to ensure conservation without blocking economic growth.

In the News

Ashe angrily denies colluding with green groups on lawsuits. E&E News (sub req’d). House Republicans yesterday criticized Fish and Wildlife Service Director Dan Ashe for the Obama administration’s decision to scale back a proposal opposed by many in the environmental community and suggested that he was cooperating too often with the conservation groups that frequently sue his agency. Ashe also acknowledged at an Oversight and Government Reform Subcommittee on Interior hearing that the Endangered Species Act — which hasn’t been updated by Congress in over 25 years — could use some minor reforms. But he staunchly defended the overall focus of the four-decade-old law.

Bishop to push public lands riders in authorization bill. E&E News (sub req’d). Public lands and other environmental issues could again be addressed this year in the defense authorization bill, which several House Armed Services subcommittees will be marking up this week. Thursday’s markup in the Subcommittee on Readiness is the one to watch for environmental riders. That’s where provisions limiting endangered species listings and the use of public lands were inserted into the authorization last year. While Bishop remained mum about whether he wants to see similar provisions in this year’s defense authorization, Sen. James Inhofe (R-Okla.) said last week he is still upset about last year’s defeat, when lawmakers ultimately dropped sage grouse language from the final bill.

BLM conservation policy threatens key power line. E&E News (sub req’d). In the first major decision to follow new guidance on avoiding development in conservation areas, the Bureau of Land Management has proposed routing the final two stages of a Wyoming-to-Idaho power line outside of a federal raptor sanctuary. Doing so would protect key habitat and wildlife, the agency said. But Idaho leaders and other critics say BLM’s proposal sacrifices greater sage grouse habitat and private property to avoid crossing the sanctuary — and ignores the recommendation of the agency’s own advisory council. Whatever route is chosen, there’s no escaping impacts to the greater sage grouse, which last year narrowly avoided being listed by the Fish and Wildlife Service under the Endangered Species Act.

Environment is focus of new police force. Mexico News Daily. A new police force whose main task will be safeguarding the country’s natural protected areas and enforcing environmental laws will be created as a division of Mexico’s Federal Police. Semarnat chief Rafael Pacchiano said the police will attempt to prevent crimes such as illegal logging, wildlife trafficking and acts of violence against visitors to natural protected areas, as well as protecting wildlife and their ecosystems. To begin, he explained, 300 officers will be deployed in priority areas. Such critical areas will include the Lacandon Jungle in Chiapas; the Gulf of California, or Sea of Cortés; and the Monarch Butterfly Sanctuary in the states of México and Michoacán, where incursions into protected areas have been detected.

Federal sage grouse plans may impact new energy projects in the Western United States. Baker Botts LLP (Briefing). Although the U.S. Fish and Wildlife Service’s (“FWS”) recent decision not to list the greater sage grouse as threatened or endangered avoids some of the more onerous restrictions that could have impacted activities in areas inhabited by the sage grouse, other federal agencies have promulgated plans designed to protect approximately 67 million federal acres of the sage grouse’s habitat. These plans span 10 different western states and impose limitations on various activities—including those associated with energy development, such as new oil and gas projects, wind farms, and certain large transmission line projects. Several lawsuits have since been filed challenging the federal sage grouse plans, and the outcome of these lawsuits could impact energy development projects in many western states.

Top Interior, BLM officials lead talks on sage-grouse. Grand Junction Daily Sentinel. Leading Department of Interior and Bureau of Land Management officials led discussions in Grand Junction Tuesday aimed at gathering public input to help the BLM in implementing its new management plans for the greater sage-grouse. “We want to get your feedback. We want to understand your concerns, understand your experience and expertise,” Jim Lyons, Interior’s deputy assistant secretary for land and minerals management, told county, energy, environmental and other interests who attended Tuesday’s event at Two Rivers Convention Center.

Greens urge judges to reject Md. export project. E&E News (sub req’d). Environmentalists pressed federal judges today to reject Dominion Resources Inc.’s plans to export liquefied natural gas from a Chesapeake Bay facility. Federal regulators have already approved Dominion’s plans to convert its $3.8 billion Cove Point LNG import terminal in Maryland into an export facility, but greens and BP Energy Co. sued the Federal Energy Regulatory Commission, arguing that its approval of the project was illegal. The environmentalists say FERC did not properly consider the projects’ greenhouse gas emissions, the impacts of increased shipping on endangered North Atlantic right whales and the risks posed by possible industrial accidents in the populated area.

Leaked BLM sage grouse draft memos spark fear. E&E News (sub req’d). In early March at a hotel in downtown Denver, delegates for Western governors were handed paper copies of a Bureau of Land Management draft instruction memo on how to ensure cattle grazing does not harm habitat for the greater sage grouse. The draft document caused a stir for some members of the state-federal Sage-Grouse Task Force, who are working closely with the Obama administration to ensure that the bird, which narrowly avoided an Endangered Species Act listing, can thrive alongside public lands users, including thousands of ranchers. The memo and an attachment described how BLM might respond if domestic cattle were found to gobble up too much of the grass that grouse need to hide their nests from predators. BLM might consider delaying or shortening grazing seasons or allowing fewer cows to roam the range, it said.

Feds sued over Fruitland power plant, mine. Farmington Daily Times. A coalition of environmental groups filed a lawsuit Wednesday challenging the U.S. Department of the Interior’s 25-year extension of operations at the Four Corners Power Plant and the Navajo Mine in Fruitland. The groups’ 58-page complaint challenges the federal agencies’ “arbitrary, capricious and unlawful failure” to more thoroughly analyze the potential impacts to the environment, public health and endangered species from operations at the Four Corners Power Plant and the Navajo Mine. Note: E&E News also reports.

Feds project reduction in eagle deaths at Chokecherry and Sierra Madre wind farm. Casper Star Tribune. Chokecherry and Sierra Madre, the largest onshore wind farm planned in the United States, would annually kill 10 to 14 golden eagles, the U.S. Fish and Wildlife Service projected in a draft environmental study released Wednesday. That figure represents a substantial reduction from the 46 to 64 golden eagle fatalities estimated by the U.S. Bureau of Land Management in 2012. The company has also proposed putting 27,500 acres into a conservation easement. That move is aimed at bolstering sage grouse habitat, but could have an indirect impact on eagles, Choquette noted. Eagles prey on sage grouse, and more grouse in that area could help direct the birds away from the turbines, she said.

Sign-Up to receive news clips

and our newsletter

9 + 1 =