Issues
IPAA featured in the Washington Post. Last week, the Washington Post featured an extensive article on the lesser prairie chicken and its potential listing as threatened under the Endangered Species Act (ESA). While the article was fairly balanced, it failed to detail the extensive impact such a listing would have on American energy development – oil, natural gas, and wind alike. In order to make sure this point was not lost, the Independent Petroleum Association of America (IPAA) wrote a letter to the Washington Post which was highlighted over the weekend. From the letter:
“Oil and natural gas companies are working with local governments and conservation groups to ensure the safety of the lesser prairie chicken. Companies active in Colorado, Kansas, New Mexico, Oklahoma and Texas implement avoidance, minimization and mitigation measures, and they provide funding and support for conservation efforts. State initiatives ensure that energy development does not adversely affect ecosystems. This month, to align efforts to protect the bird, wildlife agencies submitted the third draft of a range-wide conservation plan to the U.S. Fish and Wildlife Service. The plan includes habitat management goals and voluntary conservation practices.”
Read the full letter from IPAA’s Barry Russell HERE.
IPAA Supports West Virginia on Diamond Darter Comments. This week, the West Virginia Oil and Natural Gas Association (WVONGA) submitted comments to the U.S. Fish and Wildlife Service (FWS) regarding the proposed listing and designation of critical habitat for the diamond darter under the Endangered Species Act (ESA). The comments highlight how the FWS has failed to recognize the extensive impact such a listing would have on the West Virginia economy, small businesses and energy development in the state as the diamond darter occupies the Elk River watershed – an important area for coal, timber, oil, and natural gas development in West Virginia. IPAA joins WVONGA in its comments and concerns specifically related to the oil and gas industrial activities in the Elk River watershed.
Read WVONGA’s full comments HERE and the West Virginia Chamber of Commerce’s comments from 2012 HERE.
Changes Underway for ESA Operating Procedures. Four rules are currently under review at the Office of Information and Regulatory Affairs (OIRA) at the White House regarding ESA operating procedures. These rules include:
- ESA Section 7 consultation regulations,
- Implementing changes to regulations to for designating critical habitat,
- Policy regarding implementation of Section 4 (b)(2), and
- Definition of destruction or adverse modification of critical habitat.
See the rules, their Regulation Identifier Number (RIN), and the date the rules were passed to OIRA HERE. IPAA will continue to monitor these rules as they make their way through the rulemaking process.
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ESA WATCH – SPECIAL REPORT “Adverse Modification” Rulemaking on the Horizon for the Endangered Species Act? By Joe Nelson, Van Ness Feldman, LLP Do not mistake the mundane for the unimportant. With two routine notices, one published in January and the second posted on an Office of Management and Budget (OMB) website at the end of April, the U.S. Fish and Wildlife Service (FWS) gave notice of its intent to redefine what constitutes “adverse modification” for purposes of a Section 7 consultation under the Endangered Species Act (ESA). FWS has indicated that it would take this action as part of a joint rulemaking with the National Marine Fisheries Service (NMFS), which has jurisdiction over anadromous and marine species under the ESA. Federal actions, including permitting and leasing decisions relating to oil and gas development, are subject to a requirement to “consult” with FWS or NMFS on the effects of the proposed federal action on threatened and endangered species as well as designated critical habitat. A key element of this consultation is whether the proposed action will result in the destruction or “adverse modification” of designated critical habitat. In 2001 and 2004, separate federal circuit court decisions overturned the regulatory definition of “adverse modification.” The challenged definition considered adverse modification to occur only when there was an appreciable diminishment in the value of the critical habitat to contribute to the survival and recovery of the species. The courts faulted this definition as “setting the bar too high” and inconsistent with the purpose and scope of the critical habitat designation. After the second negative decision in 2004, FWS and NMFS issued guidance to field offices that the adverse modification inquiry should simply “rely on the statutory provisions of the ESA.” For almost a decade, FWS and NMFS have routinely promised, but have not issued, a new definition. The wait may be over. In January, the annual Regulatory Plan for FWS stated:
Moving forward, at the end of April, the Office of Information and Regulatory Affairs for OMB published a notice of its receipt of a proposed rule from FWS for “Definition of ‘Destruction or Adverse Modification’ of Critical Habitat.” At this time, FWS has three other ESA rulemakings under review at OMB. The implication of any new definition of “adverse modification” extends beyond its potential scope, to the changed landscape in which it will be applied. Since 2004, the number of species with designated critical habitat and the overall acreage covered by such designations has grown significantly. Moreover, as part of the 2011 “listing settlement” that is likely to result in an increase of more than 20% in the number of listed species by 2016, FWS committed to propose critical habitat for such species concurrent with listing, where prudent and determinable. With these events, the likelihood of having activities within designated critical habitat has significantly increased. Further, a new definition of “adverse modification” is likely to raise the bar with respect to the habitat protections and mitigation imposed upon federal permittees, leaseholders and licensees. Preparation is often the key to success. Having been given notice, the regulated community should mobilize and consider strategies for engagement in this rulemaking. To effectively engage, stakeholders need to consider a host of questions. What is the appropriate role of critical habitat designations under the ESA and how does that role inform the “adverse modification” inquiry under ESA, Section 7? Since 2004, the overall understanding of the constituent elements of habitat, their relationship to species health and interaction with resource use activities has significantly advanced. How are those advances in knowledge and science integrated into what constitutes “adverse modification” of critical habitat? Should adverse modification be measured through both qualitative and/or quantitative means? Can only temporary impacts constitute an adverse modification? If so, how and when? Most importantly, individuals and businesses must recognize and plan for the implications of a proposed and final rule re-defining “adverse modification”—particularly with respect to planned or ongoing projects that may be subject to an ESA Section 7 consultation. Any new definition could have significant impact on the timing and scope of the consultation inquiry to a project and materially change the nature and amount of mitigation measures that may be required to avoid an adverse modification finding. As mundane as the notice of this proposed rule may have been, its implications should not be underestimated. Joe Nelson is a Partner at Van Ness Feldman, LLP, where he counsels clients on project compliance and permitting matters arising under the Endangered Species Act, Clean Water Act, National Environmental Policy Act and other environmental statutes. |
In the News
Government report confirms flawed Endangered Species Act science. Delta Farm Press. Following the recent release of the National Research Council’s (NRC) risk assessments report on pesticides, members of Congress have called on four federal agencies to start over and conduct a more thorough study that more directly answers serious questions relating to Endangered Species Act biological opinions (BiOp) and crop protection products.
Grouse mirrors spotted owl. Capital Press, LTE. The real threatened species is the Owyhee County rancher. The rancher is the finest steward of the land as his livelihood depends on stewardship of the land.
Lack of coordination, communication hinders agencies assessing species risks. E&E News (sub req’d). Under the Federal Insecticide, Fungicide and Rodenticide Act, EPA has authority over pesticide registrations, which include a review of the pesticide’s impact on the environment and any nearby listed species. And the Endangered Species Act requires EPA to consult with FWS and NMFS to determine whether a federal action could affect a listed species.
Interior sends critical-habitat rules to White House. E&E News (sub req’d). The Interior Department in the past week sent to the White House for review three rules that could significantly affect the way habitat is protected for threatened and endangered species. One of the rules will determine how the Fish and Wildlife Service decides which lands to set aside as critical habitat and which lands to leave available for economic development.
Wrong-headed environmentalism. Pittsburgh Post Gazette, Op-Ed. The recent celebration of Earth Day reminded me of one of the ironies of our lack of coordination between energy use and the environment. Back in 1973, the Endangered Species Act was passed, and one of the most publicized results was the litigation relative to the Tellico Dam in Tennessee, where endangered snail darter fish were found. Though the dam was finally finished, it took a special act of Congress to enable its completion. Since that time few dams may have been built, certainly none in Pennsylvania. Please note hydro power has no emissions.
Interior to decide fate of 10 species by 2018 under agreement with CBD. E&E News (sub req’d). The settlement announced late last week with the Center for Biological Diversity requires the agency to issue listing determinations on each of the species by fiscal 2018 — decisions that could affect high-profile projects including a copper mine in Arizona and a water pipeline in Nevada. The agency will issue 12-month findings on the Humboldt marten in Northern California and Oregon; Coleman’s coralroot in Arizona; the Lake Valley, hardy, flag and bifid duct springsnails; the Big Sandy crayfish from Appalachia; the black rail along the Atlantic coast; and the Big Blue Springs cave crayfish and Barbour’s map turtle in Florida, according to CBD.
Researchers: Sage grouse need solitude and habitat. Associated Press. Researchers with the U.S. Geological Survey analyzing sage grouse breeding areas say the ground-dwelling birds need sagebrush-dominated landscapes with a minimum level of human activity to thrive. The study released earlier this month found that 99 percent of active breeding sites, called leks, are in areas with no more than 3 percent of the land disturbed by roads, power lines, pipelines and communication towers, The Idaho Statesman reported.
A new farm bill, specialty crops and onerous government regulations. Western Farm Press. In recent years, lawmakers wrestling with farm legislation have increasingly given specialty crops more elbow room at the negotiating table. That’s just fine with Barry Bushue, who farms specialty crops in Oregon and is an American Farm Bureau Federation vice president. In the run-up to the House Agriculture Committee’s expected mid-May start on a 2013 farm bill, Bushue spoke at an April 24 hearing of the Subcommittee on Horticulture, Research, Biotechnology, and Foreign Agriculture.
