Volume 17, Issue 4, August 2007

Editor: Laura M. Bies
Reporters: Jennie Miller and Rachel Peacher

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In this Issue:

 

Restoring Wetlands Jurisdiction under the Clean Water Act

Two Supreme Court decisions last June (Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers) reduced the reach of the Clean Water Act (CWA) so that the term “navigable,” which has historically been used to modify “waters of the United States,” is now being interpreted literally to determine which waters are protected by the Act.

While Supreme Court Justice Anthony Scalia justified his stance in the cases by saying that the Act protects “navigable waters” and not ephemeral streams and drainage ditches, Justice Anthony Kennedy urged regulators to consider whether waters provide a “significant nexus” with navigable waters when determining their eligibility for protection.

The views of both judges were reflected in the recent guidance issued by the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency (EPA).  Now, regulators in both agencies are required to consider whether a body of water is “navigable” and if not, whether it provides a significant nexus to “navigable waters.”

A public comment period on the new guidance statement began in June and extends six months.  In March 2008, the Corps of Engineers and the EPA will reconsider the document.  Visit http://www.epa.gov/owow/wetlands/guidance/CWAwaters.h tml for more information and to submit comments.

Congressional leaders are currently working on legislation that would restore traditional protections for U.S. waters.  Senator Russ Feingold (D-WI) said that it is “clearly up to Congress” to fix the problem with the interpretation of Section 404, and that the Clean Water Act was intended to “preserve all of our nation’s waters, not just sustain the navigability of some of them.”

The House’s Clean Water Restoration Act (H.R. 2421), and the Senate bill of the same name (S.1870), would replace "navigable waters of the United States" with "waters of the United States," reestablishing the common understanding of the CWA prior to the 2006 Court rulings.  Both bills have been referred to committees.

The conservation community has voiced widespread support, including TWS, which signed onto testimony given by Ducks Unlimited at a House Committee hearing.  Several former EPA chiefs and administrators, including former EPA Administrator Carol Browner also support the legislative change that would restore the original intent of the CWA.

Opposition to H.R. 2421 and S. 1870 centers on the fears of an expansion of federal power over private property.  The phrase stirring most of this controversy states that waters would be protected “to the fullest extent… under the Constitution.”

Sources: E&E Publishing, LLC (Energy & Environment Daily, Energy & Environment News PM, Land Letter), Environmental Protection Agency, House of Representatives Transportation and Infrastructure Committee hearing

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BLM’s Revised Grazing Regulations Enjoined

A federal District Court ruling on 8 June 2007 has prevented the Bureau of Land Management (BLM) from implementing a revision of their grazing regulations, after the judge determined that the agency violated the National Environmental Policy Act (NEPA) and the Federal Land Policy and Management Act (FLPMA) by ignoring input from the public and U.S. Fish and Wild Service.

The revised regulations would strengthen the rights of ranchers on BLM land and could weaken the BLM’s role in preventing grazing damage by decreasing monitoring, limiting the agency’s authority over determining grazing violations and extending corrective action deadlines for farmers.  The regulations also limit public input on the process.

Between 2004 and 2006, the BLM published draft and final versions of an Environmental Impact Statement (EIS) on proposed revisions of the 1995 grazing regulations. Immediately after publication of the EIS on 12 July 2006, the Western Watersheds Project filed three motions for a preliminary injunction against the amendments, claiming that the BLM had violated NEPA, FLPMA, and the Endangered Species Act (ESA).

In August and September 2006, Idaho District Court Judge Lynn Winmill charged the BLM with breaching the NEPA and FLPMA.  She approved revisions to more directly involve the interested public in BLM grazing decision-making processes and banned implementation of the revised grazing regulations.

Judge Winmill’s most recent injunction requires the BLM to re-evaluate the 2006 revision by taking steps under the ESA to consult with the public and the Fish and Wildlife Service on the potential effects of grazing on sensitive species.  The agency must also conduct further analysis of environmental impacts to meet NEPA guidelines.

BLM’s modified grazing regulations are available at http://www.blm.gov/nhp/efoia/wo/fy07/im2007-004atta ch1.pdf.

Sources: E&E Publishing, LLC (E&E News PM), Bureau of Land Management

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Endangered Species Act Doesn’t Trump Clean Water Act

On 25 June 2007, Supreme Court justices announced that the U.S. Environmental Protection Agency (EPA) followed the law in 2002 when it declined to take threatened and endangered species into consideration when transferring water pollution permitting control to Arizona.

In National Association of Home Builders v. Defenders of Wildlife, the Supreme Court ruled, 5-4, that if a state applies and meets the criteria to run its own permit program as stated in Section 402b of the Clean Water Act (CWA), the EPA must turn authority over to them, even if the decision would cause harm to species covered under the Endangered Species Act (ESA).  The EPA was following a Biological Opinion, issued by the U.S. Fish and Wildlife Service, written under this assumption.

Some environmentalists are concerned by the ruling because state species rules are not always as strict as their federal parallels.  The minority opinion asserted that the justices should have found a way for EPA to comply with both laws.  Arizona harbors 54 threatened and endangered species, including the Southwestern willow flycatcher and black-footed ferret.

Sources: E&E Publishing, LLC (Greenwire), U.S. Fish & Wildlife Service

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U.S. Forest Service Evaluates Lethal Control of Prairie Dogs

Severe droughts over the past few years in northwest Nebraska and southwest South Dakota have stimulated concern over rapid expansion of black-tailed prairie dog populations.  A 2005 amendment of the prairie dog management plan for the Buffalo Gap and Fort Pierre National Grasslands in South Dakota and the Oglala National Grassland in Nebraska now permits the use of rodenticide in specific areas.  However, the U.S. Forest Service (USFS) is concerned that multiple use of the land may not be possible unless further restriction of prairie dog acreage is enforced.

On 8 June 2007, the USFS released the Draft Environmental Impact Statement (DEIS) for Black-Tailed Prairie Dog Management on the Nebraska National Forest and Associated Units.  The DEIS evaluates five alternatives for control of black-tailed prairie dogs with respect to their impacts on the near extinct black-footed ferret population in the Conata Basin.

Alternatives 1, 3, and 4 institute a mandatory cap on prairie dog acreage in the Conata Basin MA 3.63 area.  The new area would be substantially smaller than current prairie dog acreage and would result in immediate negative impacts to prairie dogs, ferrets, and burrowing owls.  Additionally, these alternatives would likely not provide sufficient ferret habitat to establish a self-sustaining ferret population.

Alternatives 2 and 5 maintain populations of prairie dogs equivalent to historic abundance, thus supporting the maintenance of ferret populations.  Alternative 2 would continue the current management strategy, while alternative 5 features prairie dog acreage specifications that exceed the current occupancy rate for USFS lands and requires personnel to consider non-lethal management techniques before using toxicants.

The USFS is currently reviewing public comments on the DEIS and plans to release a Final Environmental Impact Statement and Record of Decision in October 2007.  The Wildlife Society formed an expert committee and submitted comments to the Nebraska National Forest in late July.

Sources: U.S. Agricultural Department, The Wildlife Society

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Fish and Wildlife Service Reconsidering Endangered Species Decisions

The U.S. Fish and Wildlife Service is currently taking a second look at decisions made on several species under the Endangered Species Act.  The re-evaluation was requested by Deputy Secretary of the Interior Lynn Scarlett and stems from speculation over whether the actions were based on accurate scientific information and met legal requirements.

These decisions were originally overseen by Julie MacDonald, former Deputy Assistant Secretary for Fish and Wildlife and Parks.  MacDonald resigned 1 May 2007 after Interior Inspector General Earl Devaney reported that she had leaked internal agency information to outside parties and edited scientific decisions on endangered species management.

Since the reassessment process began in May 2007, the Service has reviewed more than 200 actions that were overseen by MacDonald during the past five years.  Eight decisions involving 18 species were identified as needing further review.  These species include the white-tailed prairie dog, Preble’s meadow jumping mouse, Arroyo toad, southwestern willow flycatcher, California red-legged frog, Canada lynx, as well as 12 species of Hawaiian picture-wing flies.

The Service is currently investigating the prairie dog, mouse and fly cases and will soon address the other species.  The appropriate conservation actions will be taken as funding becomes available.  “We have acted to correct problems.  Should our reviews indicate that additional corrective actions are necessary, we will take appropriate action as quickly as we can,” said Dale Hall, Director of Fish and Wildlife Service.

More information regarding the decisions up for review is available on the U.S. Fish and Wildlife Service’s Endangered Species Program website.

Sources: E&E Publishing, LLC (E&E PM News), U.S. Fish and Wildlife Service, The Center for North American Herpetology

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New Legislation Proposes Alternatives to Border Fence

A new bill introduced on 6 June 2007 by Representative Raul Grijalva (D-AZ) proposes alternative methods of restricting immigration across the Mexico-United States border that are less intrusive to desert fauna.  The Borderlands Conservation and Security Act of 2007 (H.R. 2593) emphasizes the employment of site-specific “virtual fencing” technologies that include aerial surveillance vehicles, motion sensors, laser barriers, and infrared cameras.

H.R. 2593 would eliminate the current “one fence fits all” strategy of the Secure Fence Act of 2006 (H.R. 6061), which calls for double layer fencing along 700 miles of the border.  The Borderlands Conservation and Security Act would tailor to rough terrain where physical fencing is implausible and give the U.S. Border Patrol the flexibility to work with land managers, agencies, and communities to select the most appropriate border infrastructure for each site.

Dividing some of the last remaining untouched North American desert habitats poses a significant threat to wildlife populations whose natural ranges cross the Mexican-United States border within the Sonoran and Chihuahuan Deserts.  While some alterations could be made to fences to permit small species like the flat-tailed horned lizard to pass, larger endangered species such as the Sonoran pronghorn, Mexican gray wolf, and jaguar would be severely impacted.

Grijalva’s legislation would also address the effects of human activity on desert wildlife and habitats.  Human impacts along the border include off-road driving and helicopter noise by the U.S. Border Patrol as well as trash and worn paths from immigrants.  The Borderlands Conservation and Security Act would financially support habitat restoration and wildlife protection projects to reduce these impacts through a $5 million annual Borderlands Conservation Fund.

The bill has been referred to the House Committees on Homeland Security, Natural Resources, and Agriculture.

Sources: Plenty Magazine, Arizona Daily Star, Fantasy Congress

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Ten Penguin Species in Federal Listing Process

The U.S. Fish and Wildlife Service (FWS) has determined that ten penguin species “may warrant protection” under the Endangered Species Act.  The decision was stimulated by a June threat of legal action by the Center for Biological Diversity for failing to respond to a November 2006 petition.

According to the petition, the decline in penguin numbers is due to habitat changes.  Many of these changes are thought by scientists to be caused by global warming and industrial fishing in the Southern Hemisphere.  The ten penguins under formal status review are the emperor, southern rockhopper, northern rockhopper, African, Humboldt, Fiordland crested, erect-crested, macaroni, white-flippered, and yellow-eyed.  Since none of these species has populations in the U.S., listing under the ESA would lead to restrictions on their importation, among other provisions.

The penguin species are now under formal status review, the first step of the listing process.  A decision on whether to propose a threatened or endangered listing for the ten species should be made by the end of the year.  FWS is taking public comments and scientific and commercial information regarding these species and any variables that may be affecting their populations.  Comments must be received on or before 10 September 2007.  For more information and to learn how to submit comments, visit http://www.fws.gov/policy/library/07-3355.pdf.

Sources: E&E Publishing, LLC (Land Letter, Greenwire), Center for Biological Diversity, U.S. Fish & Wildlife Service

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New Report Released on Wildlife and Highways

A recent report by Defenders of Wildlife, “Getting Up to Speed: A Conservationist’s Guide to Wildlife and Highways,” examines the conflicts between wildlife and U.S. highways.  Road construction and expansive development are major causes of habitat loss in North America, and can be unnecessarily amplified by poor transportation planning.

The report recognizes that roads have significant effects on the wildlife populations nearby.  For instance, road construction kills organisms that are too slow to escape and can bury alive species that live underground.  Animal-vehicle collisions impact humans and animals alike, harming more than 1.5 million animals and causing 200 human fatalities, 29,000 injuries, and more than $1 billion in property damage every year.  Roads can also cause animals to modify their behavior, leading to changes in home ranges, movement patterns, escape responses, reproductive success, and physiological state.  These effects can weaken the population stability of sensitive species and increase their risk of extinction.

Disruption of the natural environment can also cause major alterations to the ecosystem.  As roads divide land into fragments, surface-water flow and sedimentation patterns shift.  The removal of vegetation permits results in increased light penetration and heat, which often allows exotic species to displace native vegetation.  Carbon dioxide and heavy metals from automobiles permeate through roadside soil and vegetation to water sources, altering their chemical composition.

“Getting Up to Speed” discusses maintenance practices for wildlife conservation and highlights five primary measures to lessen the impact of roads on wildlife and the natural environment.  These management strategies include roadside vegetation management, water management, bridge maintenance, habitat connectivity, and dynamic signage.  These strategies should be designed to target specific wildlife groups or species in order to maximize their benefit.  For example, bat-friendly devices can be installed on bridges and elevated walkways can be built in wet culverts for the passage of small terrestrial species.

The report not only outlines the conflicts between wildlife and highways, but also encourages readers to involve themselves in the transportation planning and management process.  Detailed description and contact information for government agencies and NGOs are included, as well as information on how to provide input into transportation decisions.

Electronic and hardcopies of the report are available through the Defenders of Wildlife website, http://www.defenders.org/.

Sources: Defenders of Wildlife, Conservation Biology

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Laverty Nominated as Assistant Secretary for Fish, Wildlife, and Parks

R. Lyle Laverty has accepted the nomination to replace former Interior Department deputy assistant secretary Julie MacDonald as Assistant Secretary for Fish, Wildlife, and Parks.  MacDonald resigned in May 2007 after the Federal Inspectors General determined that she had repeatedly leaked U.S. Fish and Wildlife Service internal documents to industry lobbyists for use in lawsuits against the Service.

Laverty is well equipped for the position, after serving as Colorado state parks director for 6 years, during which he raised park attendance by 7.6 percent and 11.4 million visitors, despite a 20 percent cut in state funding.  Before his position in Colorado, he worked with the Forest Service for 35 years, rising from ranger to deputy director, and also wrote the National Fire Plan.

Upon accepting the nomination, Laverty pledged to “ensure the staff understands the difference on questions of science and policy,” and promised to establish a code of ethics to ensure political appointees treat others with “dignity and respect.”  The Senate must now confirm his nomination.

Sources: E&E News, LLC (E&E News PM), Environmental News Service, the Denver Post

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Interior Appropriations Bill Passes House

On 27 June 2007, the House of Representatives passed the Fiscal Year 2008 Interior and Related Agencies Appropriations bill.  Although the end result left some wildlife-friendly amendments behind, overall funding levels remained higher than last year’s and the White House request.  Under the House bill, DOI would receive $10.17 billion in FY 08, $262 million more than 2007 and $454 million above the White House’s request.

Within the Interior Department, the National Park Service would receive $2.52 billion, the BLM would receive $1.046 billion (in non-wildfire-related spending), and the U.S. Fish and Wildlife Service would receive $1.4 billion, with $152.5 million allotted to endangered species.  Finally, the U.S. Geological Survey would receive $1.033 billion.

Outside the Interior Department, the Environmental Protection Agency (EPA) would receive $8.1 billion, which also represents an amount above the current funding level and the President’s fiscal year 2008 request.

An amendment to the bill would prevent oil shale development on BLM lands in Colorado, Utah, and Wyoming.  During debate, supporters of commercial oil shale development voiced the advantages of another source of energy, while opponents were concerned about the environmental impacts.

The following amendments were dropped from the House bill after the President threatened a veto on 26 June 2007:

  • An amendment to prohibit the importation of polar bears and polar bear carcasses into the United States.  Presently, an exemption from the Marine Mammal Protection Act allows the importation of polar bears killed in Canada, most of which are from managed hunts where much of the money goes toward polar bear conservation.  The polar bear is a candidate species for the endangered species list.
  • An amendment to prevent the Department of the Interior (DOI) from allowing states and counties to develop and maintain roadways within public lands.  This amendment would have prevented habitat fragmentation caused by roadways, which alters wildlife populations, and their distribution, migration, and genetics.
  • An amendment to protect Colorado’s Roan Plateau from natural gas development.  The amendment did not reach the floor because of House spending rules.  The Roan Plateau is in central Colorado and is thought to harbor more than 4 percent of the nation’s natural gas reserves.  The area has been called one of the most diverse unprotected places in western Colorado and has four proposed areas of “critical environmental concern.”  The Bureau of Land Management received 75,000 public comments in 2004 on the development draft, which requires that modern drilling techniques be used away from any sensitive wildlife areas, and that no more than 1 percent of the plateau will be disturbed at a time.  Development will begin as early as next year.

On 21 June 2007, Senate Appropriations Committee passed their appropriations bill for the DOI, EPA, and Forest Service.  The next step will be a vote on the Senate floor.  The conference committee will then convene to decide on a final Interior appropriations bill to send to the White House.

In March, TWS wrote letters to House and Senate committees regarding the Interior Appropriations Bill.  The table below shows how the president’s request and the TWS recommendations compared to the House bill and Senate committee bill.

(Amounts in thousands)

 

President’s 2008 Request

TWS 2008 Recommendation

2008 House Final

2008 Senate Committee

Threatened and Endangered Species (BLM)

21,994

26,994

23,000

21,994

National Wildlife Refuge System (USFWS)

394,804

451,500

451,000

413,804

State and Tribal Wildlife Grants (USFWS)

69,492

85,000

85,000

72,492

Landowner Incentive Program (USFWS)

0

27,700

0

0

N. Am. Wetlands Cons. Fund (USFWS)

42,646

50,000

42,646

42,646

Neotropical Migratory Bird Cons. Fund (USFWS)

3,960

5,500

5,000

4,000

Sources: Department of the Interior, E&E Publishing, LLC (Energy & Environment Daily, Energy & Environment News PM, Greenwire), Library of Congress, Rocky Mountain News, the Wilderness Society


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House Passes 2007 Farm Bill

On 27 July 2007, the House passed the Farm, Nutrition and Bioenergy Act of 2007 (H.R. 2419) after two days of debate.  The bill would renew Farm Bill programs until 2012 and increase conservation spending by $4.6 billion above the 2002 Farm Bill.

The Conservation Title of the House bill includes the following provisions:

The Wetlands Reserve Program would be reauthorized at 250,000 acres per year with a 5-year cap of 3,605,000 acres. Easement values for this program would be based on fair market value for the loss of crop production on the land enrolled.

The Environmental Quality Incentives Program would be reauthorized with an increase in funding to $8.6 billion and would assign fish, wildlife, and habitat equal status with soil and water.

The Conservation Security Program would be reauthorized without the ability to accept new enrollments through 2012.

The Grasslands Reserve Program would receive an increase of 1 million acres over the course of the Farm Bill.

The Wildlife Habitat Incentives Program would be reauthorized at the current funding level of $85 million.

The Conservation Reserve Program would be reauthorized at the current acreage cap of 39.2 million.

The Chesapeake Bay Program for Nutrient Reduction and Sediment Control, a new conservation program, would be funded with $150 million to develop a restoration and management plan for the Chesapeake Bay watershed.  The program would support cost-share projects aimed at reducing nutrients and controlling sedimentation in the region.

H.R. 2419 also featured several other programs supported by conservation groups.  A new public access program, Open Fields, would assist states in promoting public hunting and fishing access on private lands, thereby securing natural spaces for outdoor recreation.  The House also proposed a Sodsaver provision that would disqualify native grassland converted to agriculture from crop insurance and disaster payments for four years after conversion.  Additionally, biofuels provisions contained efforts to protect fish and wildlife habitat, including investments in the next generation of biofuels, which will not endanger fish and wildlife habitat created by Farm Bill conservation programs.

Two controversial amendments were not included in the final bill.  Representative Goodlatte’s (R-VA) amendment to consolidate farm bill conservation programs was unanimously withdrawn before the final vote.  An amendment proposed by Rep. Kind (D-WI) and supported by some conservation groups would have capped farm subsidies for wealthy farmers and dedicated $3 billion more to conservation programs, but did not garner the necessary votes.

Although Congress had hoped to complete Farm Bill reauthorization by the end of the summer, legislation has yet to be introduced to the Senate.  Chairman Tom Harkin (D-IA) aims to release his bill to the Senate Agriculture, Nutrition and Forestry Committee in September.

Sources: E&E Publishing, LLC (E&E Daily), Environmental News Service, the New York Times, Library of Congress, Theodore Roosevelt Conservation Partnership

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Updates

Energy Reform Bill: The Energy Policy Reform and Revitalization Act of 2007 (H.R. 2337) passed out of the House Natural Resources Committee on 16 July 2007 by a vote of 26 to 22.  The bill has been discharged by the House Agriculture and House Science and Technology Committees and placed on the House calendar.
See WPN Vol. 17, Issue 3, Article 5.

Roadless Rule: In mid-June, Senior Judge Clarence Brimmer denied the state of Wyoming’s request to reinstate his 2003 injunction that voided former President Bill Clinton’s Roadless Area Conservation Rule.  In July, Wyoming began its third attempt since 2003 to enjoin Clinton’s Roadless Rule.  California, Montana, New Mexico, and Oregon have filed papers in opposition to the Wyoming request, claiming lands would be “irreparably harmed” by removal of the law.  A hearing is scheduled for October 19 in Cheyenne, where Brimmer will review Wyoming’s request.
See WPN Vol. 17, Issue 3, Article 6.

Political Interference in Endangered Species Science: On July 31, the House Natural Resources Committee held a hearing to explore whether Vice President Dick Cheney pressured employees of the Department of the Interior to alter political decisions on re-channeling the Klamath River for farmer irrigation in 2002, the second in a series of hearings the committee has held looking at political interference in agency science.  Interior Deputy Inspector General Mary Kendall reported that although the 2004 investigation found no evidence of the Vice President’s influence, new information suggests otherwise and may warrant further review his role in the decisions. See WPN Vol. 17, Issue 3, Article 9

Sources: E&E Publishing, LLC (Environment & Energy Daily, E&E News PM, Greenwire), National Environmental Trust, Seattle Post-Intelligencer, the Wilderness Society, Thomas Library of Congress, Fantasy Congress

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