Weekly Newsletter | January 5, 2018

Home/Newsletters/Weekly Newsletter | January 5, 2018

Weekly Newsletter | January 5, 2018

Issues 

IPAA submits comments to Fish and Wildlife Service on its mitigation policy. On November 6, 2017, the Fish and Wildlife Service began receiving public comments on its existing Mitigation Policy and Endangered Species Act Compensatory Mitigation Policy (ESA-CMP). Specifically, the Service requested parties comment on the policies’ mitigation planning goals.

In partnership with four other industry associations, IPAA submitted comments requesting that the Service withdraw and revise the ESA-CMP. The groups concerns are primarily related to the lack of specification regarding certain terms and regulatory measures, with the usage of the terms “net conservation gain” and “no net loss.” From the comments:

“The Policy imposes impractical and ineffective requirements and, as worded, can compel decisions that are based on inappropriate speculation over objective science, or decisions that do not adequately consider avoidance and minimization of project impacts…The Associations are particularly concerned that the Compensatory Mitigation Policy dramatically and improperly expands the FWS’s authority over unlisted fish and wildlife. In any revision of the Policy, we believe it to be very important for FWS to clarify that the extent of its mitigation authority only applies to those federal trust resources specifically identified by the ESA.” 

The comment period for this notice closes today.

Department of Interior reforms Migratory Bird Treaty Act to no longer cover incidental results. The Interior Department has issued a reinterpretation of the Migratory Bird Treaty Act (MBTA) to ensure it covers only the intentional taking of protected birds rather than any accident that results in a bird’s death, a reversal of the primary interpretation throughout the Obama administration.

 “Reading the MBTA to capture incidental takings casts an astoundingly large net that potentially transforms the vast majority of average Americans into criminals. … [Interpreting the rule in this way] raises serious due process concerns and is contrary to the fundamental principle that ambiguity in criminal statutes must be resolved in favor of defendants,” the opinion states.

 As the MBTA prohibits the unauthorized taking of over 800 species of birds, this move by the administration will alleviate liability from thousands of companies that could have faced legal consequences should an accident have occurred to a migratory bird as a result of its typical business operations. 

 IPAA responds to updated MBTA interpretation. Regarding this long-awaited change to the MBTA, IPAA Government Relations Director Samantha McDonald issued a statement featured in E&E News and other news outlets emphasizing the importance of exempting incidental takings of birds from the treaty:

 “The MBTA is an important law to protect species we all care about. Unfortunately, recent legal interpretation of the Act has placed blame on lawful industries and activities. IPAA welcomes the new Solicitor’s Opinion to provide much-needed legal clarity on this 100-year-old statute. IPAA members take species conservation seriously, and work actively to protect the environment  and habitats where they operate. Today’s action is an important step to clarify the legal role of  the MBTA to support species protection, while limiting inappropriate legal impacts on otherwise lawful activities from an array of industries.”

 For years, IPAA has advocated for MBTA clarification. After the Fish and Wildlife Service issued a notice regarding the potential implementation of incidental takings under the MBTA in 2015, IPAA submitted comments expressing concern about the legality of such an action. Since then, the Association has been actively discussing concerns with the administration, Congress, and the media, educating the public on why MBTA application to incidental takings is burdensome to the average American and an overreach of the law. Finally, thanks to the solicitor’s new opinion, only purposeful takings of birds will be held liable under the MBTA and our country’s companies and businessmen are free of an overreaching protection.

New guidance issued for maintaining Western sage-grouse habitat. Early this week, the Bureau of Land Management (BLM) released six “Instruction Memoranda” (IMs) directing BLM managers and staff on how to better preserve sagebrush habitat, land that is critical to the survival of the Greater sage-grouse. The updated policy measures still allow the land to be used for industry and economic development.

“The updated policies are in response to concerns raised by the states, local partners and our own field staff,” said Brian Steed, BLM’s Deputy Director for Programs and Policy.  “They were developed from the ground up with the goal of improving sagebrush habitat while permitting measured economic and recreational activity.

Portions of the IMs are dedicated to policy regarding oil and natural gas leasing. Specifically, the updated policy measures make it clear that in addition to allowing leasing and development outside of designated sage-grouse habitat, it is also allowed inside providing that the companies involved take the appropriate protective measures when coming into contact with habitat and minerals.

 In the News 

Ala. salamander wins ESA protection as law faces change. E&E News (Sub req’d). The Fish and Wildlife Service today granted long-awaited Endangered Species Act protections to a large Alabama salamander, warming up a year that could hatch big changes in the ESA. In a move more than three decades in the making, the agency finalized the listing of the Black Warrior water dog as endangered and designated 420 miles of Alabama streams and rivers as critical habitat. The decision relieves environmentalists, who saw the salamander identified as a candidate for federal protection in 1982 and who first petitioned for its ESA listing in 2004. “The risk of extinction is high because the number of populations has decreased, and the remaining populations are small, isolated, and have limited potential for recolonization,” the Fish and Wildlife Service stated. Adult Black Warrior water dogs are nocturnal, brown amphibians that reach nearly 10 inches in length. Water quality degradation, from pollution and urbanization, endangers the species. “I am simply elated that the Black Warrior waterdog is receiving Endangered Species Act protection,” Elise Bennett, an attorney with the Center for Biological Diversity, said in an email today. Note: WBHM, the Alabama Media Group, Courthouse News Service and Center for Biological Diversity (press release) also reported.

Agency: Southwestern songbird to retain protected status. Associated Press. A federal agency says a migratory songbird that breeds in vegetation along rivers and streams in Arizona and New Mexico will remain an endangered species. The U.S. Fish and Wildlife Service’s announcement Thursday says the Southwestern willow flycatcher will keep the protected status following a review of a 2015 petition in which industry groups argued the bird isn’t a valid subspecies under the Endangered Species Act. The announcement says an “exhaustive review” of scientific information reached the conclusion that the flycatcher is a protectable subspecies. It also says some flycatcher populations “have made considerable progress toward recovery” but that threats still exist and warrant protection. A 2012 assessment estimated a population of only 1,629 breeding territories. Those are places where a male sings to attract a mate. Note: KUNM, the Center for Biological Diversity (press release), Courthouse News Service, and KOB4 also reported.

U.S. Wildlife officials propose endangered status for Florida crayfish. WGCU. Federal wildlife officials proposed Tuesday to protect a crayfish only found in Bay County under the Endangered Species Act. The Panama City crayfish is only about 2 inches long, it’s tan-colored and has red dots on its head. There are only 13 populations found in Bay County with less than 100 fish in each habitat. Tierra Curry, senior scientist with the Center for Biological Diversity, says all the Panama City crayfish historically lived together in wetlands of the Pine Flatwood Forest, but then they were separated as the land was developed. “The crayfish have been pushed into these little habitats like ditches and swells,” she says. Curry says these fish are important for multiple reasons. They create burrows that other species use, like insects and frogs. The fish are also part of the food web—other fish, birds and mammals eat them. And they’re herbivores that eat decaying vegetation in the water, essentially cleaning it. “So protecting crayfish ultimately protects clean water for people,” says Curry.

Small Ore. fish now counts as big ESA success. E&E News (Sub req’d). An obscure inland fish should join the more majestic bald eagle and gray whale as an Endangered Species Act success story, the Fish and Wildlife Service said today. After nearly 33 years of federal protection as a threatened species, the Foskett speckled dace found in Oregon has recovered sufficiently to merit removal from ESA listing, agency officials believe. “We expect conservation efforts will continue to support a healthy viable population of the Foskett speckled dace post-delisting and into the foreseeable future,” the agency stated, adding that “the species is not in danger of extinction now or in the foreseeable future.” If given final approval following a 60-day public comment period, the delisting proposal to be published in tomorrow’s Federal Register would be a relative rarity. Several dozen species have been removed from ESA listing as threatened or endangered because of recovery, since the landmark environmental law was passed in 1973. Another 10 species have been delisted because they went extinct. Note: The Oregonian, Courthouse News Service, and the Center for Biological Diversity (press release) also reported.

Tennessee fish proposed for Endangered Species Act protection. WGNS Radio. The U.S. Fish and Wildlife Service proposed Endangered Species Act protection today for the Barrens topminnow, a small fish found only in central Tennessee in clear, spring-fed streams on the Barrens Plateau. Just five populations of the highly endangered fish survive in the wild southeast of Nashville, where the species is threatened by drought, pollution and predation by non-native mosquitofish. At last count there were fewer than 400 total individuals. “The Barrens topminnow was first proposed for Endangered Species Act protection more than 40 years ago, and this small fish now finds itself on the very brink of extinction,” said Tierra Curry, a senior scientist at the Center for Biological Diversity. “I’m hoping this proposal will be the turning point that keeps it from being lost forever.” The topminnow is found in Cannon, Coffee and Warren counties. It lives in the headwaters of the Duck and Elk river watersheds, which are part of the Tennessee River drainage, as well as in the Caney Fork River system in the Cumberland River drainage. The fish grows to 4 inches long, has flashy colors and swims near the water’s surface, where it preys on mosquito larvae and other insects. Note: Law360 (Sub req’d) and the Courthouse News Service also reported.

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