Download File

Holsinger Law, LLC
Lands, wildlife and water law
A Perfect Storm: The ESA
and WOTUS
Kent Holsinger
An Overview of the
Endangered Species Act
(ESA)
• Established in 1973 to "conserve the
ecosystems upon which threatened or
endangered species depend" and to
conserve and recover listed species
• Nation’s most powerful environmental
law. Applies to all land in the US:
federal, state and private
• Influence largely court driven
• Costs taxpayers, landowners, local
governments and businesses an
estimated $3 billion per year
Section 4 Listings
• Any citizen may petition the FWS to list or delist a species as a
candidate
• Species may be listed as either “threatened” or “endangered”
• Endangered means that a species is in danger of becoming
extinct throughout the entirety or a significant portion of its
range
• Threatened means that a species is likely to become
endangered within the foreseeable future
Efforts to List in Colorado
Greater Sage Grouse
Prairie Dogs and Mountain Plovers
Lesser Prairie Chicken
• Listed as threatened in
March of 2014
• 4(d) Rule
• Sept. 2015 listing
invalidated in federal
court
• population increased 25
percent from 2014 to
2015
• Population goals:
67,000 birds in 4
“ecoregions”
• 2014 estimates: 37,000
Yellow-billed cuckoo
– Nov. 3, 2014
threatened listing
– 546,335 acres
Critical Habitat in
AZ, CO, ID, NV,
NM, TX, UT, and
WY
– 37,460 acres in
CO
Regal Fritillary
– WEG petition to list
– Positive 90-day
finding
– 12-month finding?
Place-name Listings:
Specious Subspecies and Dubious DPS’s
•Western sage grouse, Eastern sage grouse,
Greater sage grouse, Mono sage grouse, Gunnison
sage grouse . . .
•Gunnison prairie dog, Utah prairie dog . . .
•New Mexico meadow jumping mouse, Preble’s
meadow jumping mouse, bear lodge meadow
jumping mouse . . .
•New Mexico springsnail, Idaho springsnail . . .
•Sacramento checkerspot butterfly
•Salt Creek tiger beetle
•Sonoran Desert bald eagle
•Alabama sturgeon
•Louisiana black bear
Gunnison sage-grouse
• November 20, 2014 – final rule
listing GUSG as threatened (79 FR
69192) with 1,429,551 acres of
critical habitat (79 FR 69312)
Holsinger Law, LLC
• January 11, 2013 – proposed rule
to list Gunnison sage- grouse as
endangered throughout its range
(78 FR 2486) with 1.7 million acres
critical habitat (78 FR 2540).
• Coming Soon - 4(d) Rule
• Litigation
11
Credits: AP (left)
Other Species (Cont.)
• Rio Grande Cutthroat Trout:
– Not listed; under species assessment
– CBD filed suit on June 15, 2015, claiming that FWS
had failed to respond to a FOIA request
– Future litigation likely to ensue over listing decision
Potential Outcomes:
Warranted (proposed listing)
Not warranted (final agency action)
Warranted but Precluded
• Petitioned species warrants protection, but more
pressing needs require attention first
• Automatically reconsidered annually
• This annual finding continues until the petition is
found to be warranted or not warranted
Section 7 Consultation on Activities with a Federal
Nexus
• Consultation with FWS is required when any activity authorized,
funded or carried out by the federal government may adversely
affect a listed species or designated critical habitat
• Must utilize best available scientific and commercial data
• Action agency must prepare a biological assessment (“BA”)
for the FWS
• FWS then prepares a biological opinion (“BO”) on the
proposed action’s impact, analyzed in relation to the
environmental baseline (a snapshot in time of all current human
effects upon the given species)
Section 9 “Take”
•
To “take” is defined as “to harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture
or collect, or to attempt to engage in any such
conduct”
•
Harm has included habitat modification on
private property
•
Courts apply standards of foreseeability and
proximate cause, thus speculative harm to a
species or habitat does not constitute a taking.
Defenders of Wildlife v. Bernal,
•
Environmental groups may sue for injunctive
relief, or for civil or criminal penalties
•
Most cases are brought against the private
sector, but state and local governments have
been involved in the past
Gunning for attorney fees
• CBD has been a party to 835
lawsuits from 1999 to 2012
• WEG has been a party to 145
lawsuits between 2008 to 2012
• The two groups have brought
more than 1300 cases from 1990
to the present
• Most against DOI and most
raised ESA claims
2011 CBD and WEG Settlement
• +/-1,300 listed species
• WildEarth Guardians and other groups have
petitioned to add another 1,000 species in the
past 4 years. Many have become candidates
• On May 11, 2011, the FWS announced
proposed settlement agreement with WildEarth
Guardians and later with CBD
• Deadlines and expedited listing decisions on
757species
GRSG Listing Timeline
•
•
•
•
March 5, 2010: Warranted but Precluded
Candidate for listing (LPN 8)
Not warranted decision Sept. 22, 2015
(LEPC listing overturned Sept. 2, 2015)
Land Use Plan Amendments:
Winning the Battle but Losing the War?
• BLM and USFS – 15 mega land use plans that amend
98 land management and forest plans:
In essence, FWS adopted the Wyoming and Montana
plans and rejected the Colorado, Idaho, Nevada, and
Utah plans
Federal Government Adds 600,000
Acres To National Forbidden Zone
http://www.theonion.com/article/federal-government-adds-600000-acres-national-forb-51446
Unprecedented Federal Land Grab
• 3.1 mile lek buffers
• Density and disturbance caps – models
based upon models (include private lands)
• No surface occupancy
• FWS veto of exceptions to NSO
• Compensatory Mitigation and Net
Conservation Gain
Protests to Land Use Plan
Amendments
• Protests from 283 state and local governments, NGOs,
and individuals
• Nine Governors of the affected western states provided
Consistency Review letters
• Five states appealed the BLM’s responses to their
Consistency Reviews
• BLM Director’s resolution of appeals submitted to the
states and will be published in the Federal Register
Protests to Land Use Plan
Amendments (cont.)
• Ignore local conditions and state and local efforts
• Lack of transparency – underlying data not publicly available
• Costly and ruinous to jobs (some estimates $7.7 billion in cost
and loss of 31,000 jobs)
• NEPA compliance and need for SEIS (new issues raised in
final that were not analyzed in alternatives, i.e., focal areas,
triggers, FWS veto)
• Purpose and need (foregone conclusion)
• “Monoculture management” inconsistent with statutory
authority (FLPMA, NFMA, Mineral Leasing Act, etc.)
• Valid existing rights
The winding road: regulatory
compliance on listed, candidate and
special status species
Data Quality Act
Challenges
• In 2000, Congress passed the Data
Quality Act (44 U.S.C. § 3516 ) as
an amendment to Section 515 of
the Treasury and General
Government Appropriations Act for
Fiscal Year 2001. Pub. L. 106-554.
• Individual agency guidelines
• OMB Guidelines and Peer Review
Bulletin
• SDWA and NAS Standards
March 18, 2015 DQA Challenges
•
•
•
•
•
•
•
Conflicts of interest
Peer review
Reviewer comments
Bias
Selective citation
Preconceptions
Omission of real threats
Transparency and Scientific Integrity
• President Obama: “This is the most transparent
administration in history.” –The Hill, February 14,
2013, citing Google+ Fireside Hangout
• Western Energy Alliance filed suit under FOIA to
force agencies to disclose information that
should have already been public
• DOI “science arm” (USGS) is the most secretive
• USGS guidelines conflict with the DQA on peer
review and disclosure of underlying data—
withholds as “deliberative and predecisional.”
DOI Ignores Predation
• High predation = low numbers
• Approximately 82% of nest failure
Gunnison sage grouse
• Gunnison Christmas bird count: 1974
(+/- 4 ravens) versus 2014 (+/- 400
ravens)
• Changes in state and federal law—
trapping bans, poison control
Common Raven Most Abundant and
Greatest Threat
• Raven populations
have increased an
estimated 300% in
the past 27 years
• 1,500% increases
within a 25-year
period in some areas
Status of Data Quality
Act Challenges
• Team of scientists reviewed key
documents
• Three challenges filed in March of
2015: Some 600 pages of flaws
and issues
• DOI issues 4-page “answer” on
July 24, 2015; August appeals
• DOI Issues 2-page dismissal on
Dec. 17, 2015
• Manier et. al. 2014 Challenge
(Buffers) filed September 14, 2015
Lawsuits against Land Use Plan
Amendments
• Western Exploration, LLC v. U.S. Department
of the Interior, No. 3:15-cv-00491 (D. Nev.
Filed Sept. 23, 2015)
• State of Idaho
• Wyoming Stock Growers
• And many more….
State regulation of Sensitive Species
Jackson Pollack Painting
WOTUS—Speaking of Section 7…
• June 29, 2015 new rule “clarifies” Clean
Water Act jurisdiction over Waters of the
U.S. “WOTUS”
• Three categories:
• Categorically jurisdictional by rule
• Not jurisdictional by rule
• Others evaluated on case-specific basis
under “significant nexus” test
Clean Water Act History
• 1972 Congress enacts the Clean Water
Act
• banned discharge of pollutants into
navigable waters without a federal permit.
• Section 404 requires a permit to discharge
“dredge and fill” into navigable waters
• Section 402 established the National
Pollutant Discharge Elimination System
permitting program
Migratory Birds and Interstate Commerce
• 1986 “migratory bird rule” to assert isolated waters are
“waters of the U.S.”
• SWANCC v. U.S. Army Corps of Engineers in 2001 and
Rapanos v. United States, in 2006
• Supreme Court decisions reaffirmed limit on federal
jurisdiction, drawing the line at navigable.
• But in Rapanos Justice Anthony Kennedy writes a
significant nexus between an isolated wetland and a
navigable water could be enough.
Just Because You’re Paranoid…
• Puddles, ponds, ditches, ephemerals (land
that looks like a small stream during heavy
rain but isn’t wet most of the time) and
isolated wetlands
• building a fence, applying fertilizer,
pesticides, pulling weeds…
•
•
•
•
All Tributaries by Rule
All Adjacent Waters by Rule
Isolated Waters meeting Significant Nexus
Ditches
Tributaries and Adjacent water
• All Tributaries--perennial, intermittent, and ephemeral
tributaries (regardless of size or distance to TNW)
– Characterized by a bed and bank and ordinary high water mark;
– Contributes flow to other waterbodies;
– Regardless of whether the waterbody has man-made or natural
breaks in flow.
• All Adjacent Waters
– All adjacent “waters,” not just wetlands
– New definition of “neighboring”
– Includes all “waters located within the riparian area or floodplain”
– “Riparian area” defined:
• Area bordering a water
• Surface or subsurface hydrology has direct influence
• Examine ecological processes and plant and animal community
structure in that area
Significant Nexus
– Based on particular water, or in combination
with other “similarly situated waters in the
region.”
– Region:
• The watershed that drains to the nearest
jurisdictional water.
– “Similarly situated” waters”
• Perform similar functions
• Sufficiently close together, or close to jurisdictional
water
• Can be evaluated as a single landscape unit
Obama Administration Lobbies
• Dec. 14, 2015 GAO reports EPA illegally
lobbied for WOTUS through social media
and grassroots lobbying campaign
• EPA claims will affect only 1300 acres
nationwide
Expansive Reach
Federal Court Enjoins the Rule
• 31 States Challenge WOTUS in 4 Lawsuits
• Sixth Circuit Court or Appeals enjoins EPA from
enforcing in 13 of 31 states that challenged the
rule—including CO
• concerns over the basic legality of this rule
• “Facially suspect.”
Exemptions for Ag?
• Very narrow
• Apply only to Section 404 “dredge and fill”
• No protection from other enforcement
actions over activities such as weed
control, fertilizer applications, etc.
What can we do?
• Contract Congressional Delegation
(esp. Senate) individually and by
trade association
• Urge them to “Ditch the Rule”
• Support groups in the fight
Holsinger Law, LLC
lands, wildlife and water law
1800 Glenarm Place, Suite 500
Denver, CO 80202
(303) 722-2828
[email protected]