Weekly Newsletter – 9/25/15

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Weekly Newsletter – 9/25/15

Issues

Non-warranted greater sage-grouse listing announced. This week, the U.S. Fish and Wildlife Service announced its long awaited decision that it would not list the greater sage-grouse under the Endangered Species Act (ESA). The announcement was first made by Secretary Sally Jewell over Twitter with the following video, followed by a conference at the Rocky Mountain Arsenal National Wildlife Refuge alongside various state leaders and western stakeholders.  According to U.S. Agriculture Secretary Tom Vilsack, the decision “reflects the joint efforts by countless ranchers and partners who have worked so hard to conserve wildlife habitat and preserve the Western way of life.” Interior Secretary Sally Jewell also stated, “This is truly a historic effort – one that represents extraordinary collaboration across the American West.”

While the non-warranted decision was welcomed by many, the Department also announced 98 final federal land use plans in the grouse’s habitat region. Earlier this summer, federal officials proposed these plans for the greater sage-grouse governing land use activities on millions of acres of federally managed sagebrush habitat, including limitations in the form of new surface disturbance caps on development, millions of acres off limits to any surface disturbance, and significant buffers around the bird’s habitat. On Tuesday, the Bureau of Land Management and the Forest Service announced Records of Decisions finalizing the plans for portions of public lands in 10 states across the West.

As Dan Naatz, senior vice president of government relations and political affairs for the Independent Petroleum Association of America, stated in The Hill, “these new land-use plans will ultimately result in a far greater economic impact for America’s independent oil and natural gas producers.” IPAA continued in USA TODAY, that “despite the numerous private-public partnerships and voluntary conservation efforts to conserve the greater sage-grouse and its habitat, America’s energy producers – and in turn, the American taxpayers – will suffer from these more-restrictive land management plans.”

The Public Lands Council and National Cattlemen’s Beef Association also expressed opposition to the plans, stating the decision is “just as concerning as a listing.” Senate Environment and Public Works Chairman James Inhofe (R-Okla.) and House Natural Resources Chairman Rob Bishop (R-Utah) also pushed Congress this week to pass legislation to remove the plans.

IPAA Met With OMB to Discuss Final Rules. On Monday, the Independent Petroleum Association of America (IPAA) met with representatives from the Office of Management and Budget (OMB) to discuss the U.S. Fish and Wildlife Service’s final proposed changes to the designation of critical habitat under the Endangered Species Act (ESA).

The first proposed change concerns the criteria for designating critical habitat outside of the area occupied by a listed species at the time it is listed. The Service wishes to remove a current restriction on this authority to allow designation of unoccupied areas as critical habitat in anticipation of possible habitat changes resulting from climate change. Read IPAA’s comments on the proposed change HERE.

The second change would amend the definition of “destruction or adverse modification.” The proposed change would significantly expand the habitat features that are to be protected from “adverse modification.” Read IPAA’s comments on this proposed change HERE.

The third proposal seeks to clarify how the Service will use its authority under ESA section 4(b)(2) to exclude certain areas from designation that would otherwise qualify. Under this proposed change, the Service is proposing to adopt a de facto moratorium on considering federal lands for exclusion. Currently, section 4(b)(2) authorizes Fish and Wildlife to exclude certain areas, including federal lands, from designation if the economic costs and impacts on human activities exceeds the benefits of inclusion. Read IPAA’s comments on this proposed change HERE.

Federal government may appeal circuit MBTA decision. The Justice Department is deciding whether to appeal a decision made earlier this month in the Fifth Circuit, rejecting the United States’ theory of unintentional take under the 1918 Migratory Bird Treaty Act. The decision reverses a Citgo Petroleum Corporation’s conviction related to proposed violations of the Clean Air Act and Migratory Bird Act at a facility in Corpus Christi. The court concluded birds killed in a refinery’s oil-water separator was not a violation of the Act, and found that collisions with power lines are also not takes.

According to the Fifth Circuit panel, the scope of takings under MBTA only prohibits intentional acts that directly kill migratory birds. The decision split the circuit courts on the issue of enforcement of MBTA in the oil and natural gas sector. As explained by E&E News (sub req’d):

“The 5th Circuit is the latest appeals court to rule on the scope of the MBTA, which prohibits the harming or killing of most bird species in the United States. Circuit courts have been split over whether Congress intended the law to apply to just intentional killing — such as by hunters or commercial enterprises — or also to energy projects like wind farms that unintentionally kill birds. Fish and Wildlife has taken the position that incidental ‘take’ of migratory birds can be prosecuted under the law, yet the 5th, 8th and 9th circuits have found it only applies to deliberate acts. So the government has a lot to gain if it believes it can reverse the latest unanimous ruling by the 5th Circuit’s three-judge panel.”

Director of the United States Fish and Wildlife Service Dan Ashe expressed disappointment with the Fifth Circuit’s decision, stating “The decision flies in the face of 100 years of interpretation by the Fish and Wildlife Service and by a whole succession of administrations, Republican and Democrat.” The Justice Department now has until mid-October to approach the court to rehear the case.

In the News

Sage grouse decision draws cheers, legal threats. E&E News (sub req’d). Dan Naatz, senior vice president of government relations and political affairs for the Independent Petroleum Association of America, did not mention possible legal action in a formal statement. But Naatz said the federal grouse plans “will ultimately result in a far greater economic impact for America’s independent oil and natural gas producers” than a decision to list the bird for ESA protection.

Sage grouse to be saved with ‘largest, most complex land conservation effort ever.’ Los Angeles Times. “The conservation plan announced today marks a massive shift in the way our nation thinks about how to defend and protect wild animals and landscapes,” Rhea Suh, president of the Natural Resources Defense Council, said in a statement on Tuesday. Not everyone agreed, of course. The Independent Petroleum Assn. of America said that “despite the numerous private-public partnerships and voluntary conservation efforts to conserve the greater sage grouse and its habitat, America’s energy producers – and in turn, the American taxpayers – will suffer from these more-restrictive land management plans.”

Rancher: Sage grouse cooperation broke distrust. Associated Press. Republican Rob Bishop of Utah says the announcement is intended to mask the fact that the Obama administration has imposed limits on development across the West. He’s referring to changes in government policies guiding lands controlled by the U.S. Forest Service and Interior’s Bureau of Land Management. The Independent Petroleum Association of America, meanwhile, says the land use plans will hurt the country’s smaller oil and natural gas producers, which operate about 95 percent of its wells.

OPEC to the Rescue for Mating Dance of Prairie Chicken. Bloomberg. The greater sage grouse may have found an unlikely ally: OPEC. With Saudi Arabia and other OPEC members pumping oil with no respite despite crude prices below $50 a barrel, drillers in the U.S. have idled more than half their rigs over the past year in western states where the grouse lives, like Colorado and Wyoming. “The big concern was the geography of the habitat was so wide and vast, it could have infringed on the growth potential of the industry,” said Peter Pulikkan, an energy analyst with Bloomberg Intelligence. “That issue has fallen off the radar with the price collapse. Drillers have got bigger issues to deal with than a boisterous bird.”

CBD to sue over bats and coal mines. Politico Pro (sub req’d). The Center for Biological Diversity and other environmental groups plan to sue the Interior Department over permits issued for two mountaintop removal coal mining sites in West Virginia. The groups argue that Interior issued the permits without obtaining a “protection and enhancement plan,” which provides specific measures to address protected species, for the threatened northern long-eared bat. The bat’s population has dropped significantly because of habitat destruction and a pervasive white-nose syndrome.

Grouse decision opens path for dealing with imperiled wildlife in West. Denver Post. Beyond grouse, federal and state leaders on Tuesday hailed their teamwork to prevent listing under the Endangered Species Act as a model for dealing with hundreds of species imperiled by western development. The push to avert extinction of greater sage grouse without federal endangered species protection shows the Endangered Species Act “at its best,” Interior Secretary Sally Jewell said. This was a case of “thoughtful law galvanizing individuals to save a species. … It won’t be as complicated next time around. We’ve paved the way with this.”

Decision on listing eels on endangered list likely next week. Associated Press. A decision from the federal government about whether to list American eels under the Endangered Species Act will likely come next week. The eels are a commercially harvested species in several states and can be very lucrative. Maine baby eels were worth more than $2,100 per pound in 2015. States including Maryland and Delaware also have fisheries for older eels. The petitioners say the eels have lost more than 80 percent of their habitat and suffer from commercial fishing pressure.

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