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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]