Weekly Newsletter – 6/3/16

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Weekly Newsletter – 6/3/16


IPAA responds to proposed FWS mitigation policy. On March 8, 2016, the U.S. Fish and Wildlife Service issued proposed revisions to their mitigation policy, a policy that provides recommendations on mitigating adverse impacts of land and water developments on fish, wildlife, plants, and their habitats. The proposed policy would provide a framework for applying a landscape-scale approach to achieve a net gain, or no net loss, in conservation outcomes. On May 9, 2016, the Independent Petroleum Association of America (IPAA) submitted comments on the draft policy, expressing concerns over the proposed rule. The following day, the Service extended the comment deadline on the policy until June 13, 2016.

Given the numerous problems with the proposed policy, IPAA has requested that the Service withdraw the policy, unless re-proposed with significant changes. For instance, by adopting the goals of “net conservation gain” and “no net loss,” IPAA believes the Service inappropriately attempted to rewrite statutory standards under the Endangered Species Act and related laws. IPAA also argued that the Service defined its authority so broadly that it would allow the agency to require mitigation of any and all impacts to the environment and allow the Service to “veto” development projects – an expansion of its existing authority. Further, the proposed policy would require mitigation to be implemented before development could begin, regardless of whether the project ever negatively impacts the habitat. Read IPAA’s one page summery on the policy HERE, and its full comments HERE.

IPAA and API submit comments on BLM’s proposed planning rule. IPAA and API submitted comments on the Bureau of Land Management’s (BLM) proposed Resource Management Planning Rule last week, a rule aimed at enabling BLM to better address landscape-scale resource issues. IPAA highlighted that the proposed rule departs from BLM’s statutory requirement to manage public lands “on the basis of multiple use and sustained yield,” and “in a manner which recognizes the Nation’s need for domestic sources of minerals…from the public lands.” The proposed rule creates “significant uncertainty” in the resource management planning process by creating ambiguous standards and expanding agency discretion.

IPAA is particularly concerned that the proposed resource management planning process would increase costs and delay development by expanding public participation opportunities and potentially subjecting each step of the planning process to sustained and repeated objections by groups opposed to resource development. “BLM has proposed a rule that would arbitrarily, capriciously, and unlawfully…discourage investment in public land use, facilitate large-scale withdrawal of public lands from consideration for multiple use, and give BLM unfettered authority to impose planning decisions…regard for the Administrative Procedure Act, or other laws designed to limit that type of regulatory overreach,” IPAA and API stated in their joint comments.

The bipartisan Western Governors’ Association (WGA) also commented on the proposed rule, asserting that it would “create more confusion than clarity and reduces transparency.” The rule places additional burdens on states “engaged in management of threatened or endangered species with vast ranges spanning multiple BLM planning areas,” WGA wrote. WGA also said BLM should work more closely with affected governors when developing or amending its Resource Management Plans (RMPs), and said the proposed rule needs to clarify how existing state resource management plans will be incorporated into the RMPs.

IPAA comments on Service’s revisions to proposed regulations for ESA petitions. Last month, IPAA submitted comments on the U.S. Fish and Wildlife Service and the National Marine Fisheries Service’s revisions to the proposed regulations for petitions for listing species under the Endangered Species Act. While IPAA supports the overall objective of the revisions to clarify and enhance the standards utilized by the Services, some of the recent revisions do not support objectives of developing a public, science-based decision process. Some of IPAA and API’s recommendations include requiring that petitions be limited to a single species, requiring consultation with states prior to the submission of petitions, and ensuring that petitions identify, clearly label and append all reasonably available information relevant to the petitioned action and species, including information that may support a finding that the petitioned action is not warranted. Read IPAA’s comments HERE.

Feds’ decision on lesser prairie chicken earns cautious praise. The Obama Administration said last month that it would not appeal recent court rulings by a U.S. District Court that removed Endangered Species Act protections for the lesser prairie chicken. Critics of the U.S. Fish and Wildlife Service’s 2014 decision to list the chicken as “threatened” had said the designation was unnecessary because of efforts by landowners, industry, and states to protect the bird and its habitat.

The Wall Street Journal editorial board congratulated Oklahoma Attorney General Scott Pruitt on his lawsuit to delist the chicken, noting that the push to list the chicken was part of a “federal land grab by green activists” who “hoped to shut down oil and gas drilling in much of the West, especially

[in] and around the fossil-fuel rich Permian Basin.” Attorney General Pruitt welcomed the news, saying he was “pleased to report that the federal government has finally realized the error of its ways.”

Kansas Senator Jerry Moran was skeptical of the Administration’s decision, wondering what actions the Service would now pursue. “Is it dropping the appeal because it admits defeat?” he asked in a letter to the Wall Street Journal. “Or is it about to launch a new strategy to get its way…Rather than continue a protracted battle in court, the FWS may view a renewed effort to list the bird as an easier strategy to achieve the end goal of a listed species.” A proposal to relist the lesser prairie chicken is currently on the Unified Agenda, which indicates the Service may decide to begin the listing process for the bird before the end of the Administration.

In the News

Can planting more milkweed save monarch butterflies? It’s complicated. NPR. Monarch butterflies are disappearing. So far, potential culprits include disease, climate change, drought and deforestation. Everyone from loggers to suburban developers has been implicated. But much of the blame has been placed on farmers and the pesticides they rely on — pesticides that have reduced the milkweed that monarch caterpillars feast on. Now, however, scientists say that may not be the full story. According to a recent National Academy of Sciences report on genetically engineered crops, scientists haven’t been able to prove that disappearing milkweed is causing the caterpillars to starve.

Greater sage grouse protections hatching lawsuits. Heartlander (Blog). The Obama administration’s greater sage grouse protection plan has spawned multiple lawsuits, including two since April. The administration’s plan to protect the sage grouse, while avoiding listing the ground-dwelling bird as “endangered” under the Endangered Species Act (ESA), places strict limits on the use of more than 180 million acres of federal, state, and private lands across the bird’s historic range, which covers 11 Western states. Recently, the Obama administration announced it plans to scale back its proposal to require greater state input before groups propose listing animals and plants as “endangered” or “threatened” under the ESA.

Sage grouse trumps Obama wind project approval. Washington Examiner. The Obama administration got slammed by a federal judge Thursday for approving a large wind project in Oregon without accounting for the protected sage grouse population in the area. The Bureau of Land Management said the 100-megawatt wind farm was good to go, until environmentalists cried foul, suing the agency in federal court for approving the facility in an area needed by the protected bird for sustenance in the winter. Energy project developers, both fossil and renewables, have been hindered by endangered species rules, with the protection of the sage grouse becoming of particular concern. The case demonstrates that wind energy projects, even those approved by the federal government, are not immune to the protections.

Protections considered for small sage-grouse population. Associated Press. Federal biologists are working to ensure the survival of a small group of sage grouse that inhabit the Gros Ventre (GROW’ vawnt) river drainage, even though it only involves a few dozen of the large birds. Bridger-Teton National Forest biologists are asking the Forest Service’s regional office to pay for seven projects designed to aid the endangered birds. The proposed projects include rangeland restoration that will convert smooth grass pastures to native sagebrush and the closures of roads that border sage grouse breeding sites. Changes to winter travel regulations are also being considered, including areas for snowmobile and hiking.

Sage grouse plan touted as workable solution balancing public land uses and users. Las Vegas Review-Journal. A final plan to conserve and restore sagebrush habit critical to a distinct population of sage grouse found along the Nevada-California line was announced Friday by the Bureau of Land Management. “This plan strikes a balance among public land uses and users and offers a workable solution to protect natural and cultural resources as well as the socio-economic fabric of the bi-state region,” John Ruhs, Nevada state director for the Bureau of Land Management, said in a statement. Under the record of decision and amendment to the existing resource management plan for the 280,000-acre area, no changes are made to activity or projects within sage grouse habitat. Instead, any such decisions [sic] will be subject to further analysis under National Environmental Policy Act guidelines.

Bees, butterflies to get better habitat along Interstate 35. Associated Press. Soon, passengers zipping along Interstate 35 will see a lusher refuge and more food for bees and butterflies in the hopes of helping the insects boost their declining populations, six states and the Federal Highway Administration announced Thursday. That 1,500-mile stretch of road from northern Minnesota to southern Texas is a flyway for monarch butterflies that migrate between Mexico and Canada, and is surrounded by acres of public land that can serve as friendly territory for the bees and butterflies that pollinate the plants that produce much of the nation’s food, such as fruits and vegetables.

Bat disease continues to surprise in Washington. Capital Press. A Washington state wildlife veterinarian calls the so-far fruitless search for more signs of the bat disease white-nose syndrome baffling but promising. A sick little brown bat found by hikers March 11 in a state park 30 miles east of Seattle was the first confirmed case of white-nose syndrome in the West. Previously, the disease had been documented only as far west as eastern Nebraska. The discovery raised concern that the fungus, deadly to insect-eating and farmer-friendly bats, had somehow leaped across the Great Plains and Rocky Mountains. Since then, the U.S. Geological Survey has tested dozens of live and dead bats, along with soil samples and bat guano collected in caves. The tests have not detected the virus.

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