Trump administration orders review of landmark sage grouse plan

By Steve Gorman

(Reuters) – The Trump administration has ordered a review of sweeping federal land-use restrictions adopted in 2015 to safeguard the greater sage grouse, a once-ubiquitous prairie bird whose fate is tied to the health of America’s vast but vanishing Western grasslands.

Interior Secretary Ryan Zinke announced the 60-day review of sage grouse conservation rules in a Wednesday conference call with reporters, saying Western governors have complained that federal implementation of the plan has been alternately “heavy-handed” and inconsistent.

Environmental groups immediately protested the move, saying it might lead to unraveling a complex and delicately balanced strategy that took federal agencies years to negotiate with state and local governments, scientists, ranchers and other private interests.

The Obama administration launched the plan in September 2015 as an alternative to listing the ground-dwelling bird under the Endangered Species Act, a move that would potentially have entailed even tougher habitat protections.

Zinke insisted he was seeking to perfect, not dismantle, sage grouse conservation measures, while allowing greater innovation and “flexibility” by individual states on “such things as jobs and energy development.”

He said greater focus might be placed on factors other than strict habitat protection, such as predator, disease and wildfire control. Zinke also said some states have suggested the overall strategy place more emphasis on grouse population numbers than on habitat size.

Two Western governors, Democrat John Hickenlooper of Colorado and Republican Matthew Mead of Wyoming, who co-chair a federal-state sage grouse task force, contradicted such a shift in a letter to Zinke last month.

“We understand that you are considering … moving from a habitat management model to one that sets population objectives for the states. We are concerned that this is not the right decision,” they wrote in the May 26 letter.

The plight of the grouse, a key indicator species for America’s dwindling sagebrush ecosystem, has pitted conservation groups against oil and gas drilling, wind farms and cattle grazing in one of the biggest industry-versus-nature conflicts in decades.

The landmark measures implemented 21 months ago were aimed at saving the grouse while allowing activities such as energy development, mining and ranching to co-exist with the chicken-sized prairie fowl.

The greater sage grouse, known for its elaborate mating rituals, once ranged by the millions across a broad expanse of the western United States and Canada. They are now believed to number between 200,000 and 500,000 birds across 11 Western states and southern Alberta.

Besides a patchwork of conservation programs for state and private lands representing 45 percent of sage grouse habitat, the new strategy includes a set of tiered limits on commercial development inside 67 million acres (27 million hectares) of designated habitat on federal land.

Unlike many Western land-use battles of the past, sage grouse conservation drew wide support from commercial interests. Many ranchers, in particular, found common cause with efforts to protect the rangelands on which their livestock depend, citing the axiom: “What’s good for the bird is good for the herd.”

 

(Reporting by Steve Gorman; Editing by Bill Trott)

 

Congress calls on Sessions to investigate DoJ abuses in WOTUS case

House Agriculture Committee Chairman K. Michael Conaway (TX-11) and House Judiciary Committee Chairman, Bob Goodlatte (VA-6) sent a letter to U.S. Attorney General Jeff Sessions calling for a review of the Department of Justice’s (DOJ) decision to prosecute a California court case alleging violations under the Clean Water Act (CWA) – directly related to both the statutory exemptions for farming and Obama administration’s waters of the U.S. (WOTUS) rule.

The letter requests information about DOJ’s process for prosecuting violations of the CWA, citing specific concerns about the case of Duarte Nursery v. Army Corps of Engineers. In the letter, the chairmen note both committees’ concerns that the court’s opinion is “not consistent with legislative intent behind the farming exemptions under the CWA.” The letter also seeks to clarify whether a legislative fix is required to protect farmers, such California farmer John Duarte, from similar prosecution in the future. 

Mr. Duarte’s case clearly highlights the need to keep the federal government out of America’s backyards, fields and ditches. Little-by-little we watched the previous administration chip away at the rights of land and property-owners, aiming to expand its authority through broad new rules under WOTUS, all while providing little clarity to farmers and ranchers about what qualifies for exemptions. Our letter aims to work with the new administration to better define current interpretations of both WOTUS and farming exemptions so we can begin to set new rules of the road that will protect our farmers and ranchers from onerous fines, penalties and regulations,” said Chairman Conaway.

“The regulatory overreach of the previous administration is having a negative impact on the lives of hardworking Americans. Congress made its intentions of how the Clean Water Act was to be applied for the health and safety of Americans, but the Obama administration has twisted law to serve a political agenda. We will work with President Trump and the new administration to reverse Obama-era regulations that are hurting American farmers, as well as other industries, and private citizens alike,” said Chairman Goodlatte.

Mr. Duarte’s case stems from a February 2013 U.S. Army Corps of Engineers (the Corps) allegation that the vernal pools on Mr. Duarte’s land are considered WOTUS, thus subject to CWA authority. The Corps argued that based on inconsistent agriculture production patterns on Mr. Duarte’s land prior to his purchase in 2012 he did not qualify for farming exemptions and had violated the CWA when he plowed his field in late 2012. Mr. Duarte now faces fines of roughly $2.8 million and additional costly mitigation measures.

Full text of the letter is available below.
_

May 26, 2017

The Honorable Jeff Sessions              
Attorney General of the United States          
Department of Justice
950 Pennsylvania Avenue, NW         
Washington, D.C. 20530

Dear Attorney General Sessions:

As Chairman of the House Committee on Agriculture and Chairman of the House Committee on the Judiciary (“Committees”), we have been following the case of Duarte Nursery v. Army Corps of Engineers very closely. As you may know, the interpretations of the Clean Water Act (CWA) and its farming exemptions are critical to farmers and ranchers across the nation and, thus, are of particular interest to the Agriculture Committee, especially given the Committee’s jurisdiction over agriculture generally. The Judiciary Committee’s oversight responsibilities include ensuring that the Justice Department enforces the law as Congress intended.

The prosecution of Mr. Duarte raises concerns that the Congressional intent behind the farming exemptions in the statute is misunderstood. Specifically, it is the Agriculture Committee’s view that even occasional farm activities, including grazing, qualify as “normal” farming under the statutory exemption, and also are part of an established operation for purposes of the exemption. Further, it is the Committee’s view that the activity at issue in this case constitute plowing for the purposes of the exemption.

To better understand the Department of Justice’s (DOJ) process for prosecuting potential violations of the CWA and in order to determine whether or not legislation is required to correct potential misinterpretations of the law, the Committees request the following information:

  • What does the DOJ consider in determining whether or not to prosecute a violation of the CWA?
  • Is it appropriate to seek reduced penalties where the alleged violation is based on a novel or strained interpretation of the underlying statutory authority?
  • Have there been any cases where DOJ has entered into contingent settlements pending an appeal of a CWA case? If so, please describe the circumstances of those cases.
  • Has DOJ ever declined on appeal to advance CWA arguments that were successful at the district court level? If so, please describe the circumstances of those cases.

If you have any questions about this request, please contact Agriculture Committee staff at (202) 225-2171 and the Judiciary Committee at (202) 225-3951.

Sincerely,

K. Michael Conaway                                                             
Chairman        
House Committee on Agriculture      

Bob Goodlatte           
Chairman
House Committee on the Judiciary                 

cc:        The Honorable Scott Pruitt, Administrator, U.S. Environmental Protection Agency

Virginia governor orders cap and trade regulation for power plants

By Valerie Volcovici

WASHINGTON (Reuters) – Virginia’s governor issued an order on Tuesday to lay the groundwork for a cap-and-trade system to cut greenhouse gas emissions from power plants, saying it would “fill the void” left by the Trump administration which has been rolling back federal climate rules.

Democratic Governor Terry McAuliffe signed Executive Directive 11 instructing Virginia’s environmental regulators to craft rules targeting power sector carbon emissions by Dec. 31.

McAuliffe specifically asked regulators to propose a rule for the state air pollution control board that would enable Virginia to participate in a multi-state carbon permit trading program such as the Regional Greenhouse Gas Initiative for northeastern states.

“As the federal government abdicates its role on this important issue, it is critical for states to fill the void. Beginning today, Virginia will lead the way to cut carbon…,” McAuliffe said in a statement.

The main federal environmental regulator, the Environmental Protection Agency, has been actively rolling back Obama administration rules aimed at combating climate change, including the Clean Power Plan that aimed to slash carbon emissions from power plants by 32 percent below 2005 levels by 2030.

McAuliffe said Virginia was especially sensitive to the impact of climate change and dealt with the frequent threat of storm surges and flooding.

Environmental groups praised the governor’s order, which they said was an antidote to the Trump administration’s efforts to roll back Obama-era environmental laws.

“In the face of dangerous rollbacks of clean air protections from the Trump Administration, Governor McAuliffe’s directive is one more example of state leaders moving forward,” said Gene Karpinski, president of the League of Conservation Voters.

Republicans in Virginia called McAuliffe’s move a costly policy that would raise electricity prices for Virginians.

“Governor McAuliffe’s executive order is the worst kind of virtue signaling,” said John Whitbeck, chairman of Virginia’s Republican party.

(Reporting by Valerie Volcovici; Editing by Dan Grebler and Andrew Hay)

EPA seeking input on WOTUS rewrite

The U.S. Environmental Protection Agency and the U.S. Army sent a letter to governors Tueday soliciting input from states on a new definition of protected waters that is in-line with a Supreme Court Justice Antonin Scalia’s opinion in the 2006 Rapanos v. United States case. Scalia’s definition explains that federal oversight should extend to “relatively permanent” waters and wetlands with a “continuous surface connection” to large rivers and streams.

“EPA is restoring states’ important role in the regulation of water,” said EPA Administrator Scott Pruitt. “Like President Trump, I believe that we need to work with our state governments to understand what they think is the best way to protect their waters, and what actions they are already taking to do so. We want to return to a regulatory partnership, rather than regulate by executive fiat.”

“The Army, together with the Corps of Engineers, is committed to working closely with and supporting the EPA on these rulemakings.  As we go through the rulemaking process, we will continue to make the implementation of the Clean Water Act Section 404 regulatory program as transparent as possible for the regulated public, ” said Douglas Lamont, senior official performing the duties of the Assistant Secretary of the Army for Civil Works.

The Clean Water Act asserts federal control over “navigable waters” without providing clarity or details about the law’s scope. President Donald Trump signed an executive order on February 28, 2017 to direct federal agencies to roll back and replace the Obama Administration’s Clean Water Rule – also known as the “Waters of the U.S.” or WOTUS – to ensure that the nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and the States under the Constitution.

To meet the objectives of the executive order, federal agencies are following a two-step process that will provide as much certainty as possible, as quickly as possible, to the regulated community and the public during the development of the replacement rule.

The first step is to revise the Code of Federal Regulations to re-codify the definition of “Waters of the United States” which currently governs administration of the Clean Water Act, in light of a decision by the U.S. Court of Appeals for the Sixth Circuit staying a definition of “Waters of the United States” promulgated by the agencies in 2015. This action will simply make the text of the Code of Federal Regulations reflect the definition currently in effect under the Sixth Circuit stay. This action, when final, will not change current practice with respect to the how the definition applies, which is consistent with Supreme Court decisions, agency guidance documents, and longstanding practice.

The second step will be a public notice-and-comment rulemaking involving a substantive reevaluation and revision of the definition of “Waters of the U.S.” in accordance with the executive order. The letter sent to governors today is seeking input on the second step of the process.

Source: EPA

Bishop and Labrador Express Concerns Over Obama-Era Climate Change Programs at Interior

Chairman Rob Bishop (R-UT) and Subcommittee on Oversight and Investigations Chairman Raúl Labrador (R-ID) sent a letter to Interior Secretary Ryan Zinke expressing concerns and requesting information on two climate change adaptation programs established within the Department of the Interior during the Obama administration.

The Climate Science Centers (CSCs), which are led by the U.S. Geological Survey, and the Landscape Conservation Cooperatives (LCCs), which are principally managed by the U.S. Fish and Wildlife Service, have both been identified as having insufficient internal controls, lacking transparency and potentially funding duplicative research.   

“Despite a significant federal investment of at least $149 million,  their effectiveness, management, and levels of oversight remain serious concerns to the Committee. Since their inception, the CSCs and LCCs have lacked necessary internal controls, failed to develop effective communication policies, and have put taxpayer dollars at risk by acting in contravention of guidelines issued by Interior and the Office of Management and Budget,” the letter states.  

“Most recently OIG issued a program evaluation in which it found that taxpayer dollars are further imperiled due to the fact that the ‘CSCs and LCCs had no formal process to coordinate the prevention of duplication in research grants…’ In its review, OIG found that the CSCs and LCCs lacked a written policy for coordination, and that the LCCs failed to adequately keep track of their projects in a centralized database that could be utilized and accessed program-wide.”

Panel Outlines Devastating Social and Economic Consequences of Antiquities Designations

The Subcommittee on Federal Lands heard testimony on the consequences of Executive Branch overreach of the Antiquities Act. The panel discussed national monuments designated without significant local input or support or that included excessively large or restricted areas of land.

Director of the Utah Public Lands Policy Coordinating Office and former head of the U.S. Bureau of Land Management Kathleen Clarke discussed the devastating economic consequences for Utah communities after President Clinton designated 1.7 million acres in Utah as the Grand Staircase Escalante National Monument in 1996.

Families that have lived for generations in affected communities find their families torn apart due to lack of employment opportunities for the next generation. Populations are declining. In the twenty years since the creation of the Grand Staircase, school enrollment in Escalante has gone from 150 to 57 students,” Clarke said.

The monument included roughly 176,000 acres of Utah School and Institutional Trust Land Administration (SITLA) lands, which generate revenues for the state’s K-12 public education system. According to the Utah Geological Survey, the value of resources on school trust lands dropped by $8 billion immediately after the monument designation.

President Obama’s December 2016 Bears Ears National Monument designation similarly locked up 109,000 acres of SITLA land in southern Utah. “What impact will this have for SITLA as they try to grow their fund to benefit more schoolchildren in the state,” Chairman Rob Bishop (R-UT) asked Clarke.

This will “diminish opportunity,” Clarke responded, adding that it threatens Utah’s entire K-12 public education system.

Knox Marshall, Vice President of the Resources Division at Murphy Company, testified that President Obama’s January 2017 expansion of the Cascade-Siskiyou National Monument in southwestern Oregon and California has “devastated the social fabric of our rural communities and crippled county finances.

Douglas County in Oregon, for example, has recently closed its entire public library system because timber sale revenues that previously funded those libraries and a robust set of other public services have largely disappeared,” Marshall added.  

Maine Governor Paul LePage outlined current and anticipated adverse impacts resulting from the August 2016 Katahdin Woods and Waters National Monument designation by President Obama, including economic losses to the forestry industry and public access barriers such as the loss of connectivity for ATV trails in the region. 

Not long after President Obama designated the Monument, Maine residents started to feel the negative effects of having the federal government as their new master,” LePage stated. 

These designations were often imposed in spite of local opposition, without consultation with Congress, or the state or local government’s effected, and without regard for the economic damage these designations have had on surrounding communities,” Subcommittee Chairman Tom McClintock (R-CA) said.

After reading letters and resolutions from local tribes in Utah opposing the Bears Ears designation Chairman Bishop stated, “I hope that those listening today will remember these voices, the ones that have been excluded from this conversation and the ones that President Obama ignored when he designated Bears Ears National Monument.”

Barrasso Statement on EPA Beginning the WOTUS Rule Withdrawal Process

U.S. Senator John Barrasso (R-WY), chairman of the Senate Committee on Environment and Public Works (EPW), released the following statement on the start of the process to withdraw the problematic Waters of the United States (WOTUS) rule. The Environmental Protection Agency (EPA) has begun the regular inter-agency review process by delivering to the Office of Management and Budget (OMB) a draft rule to withdraw the WOTUS rule. 

“The overreaching WOTUS rule would put prairie potholes and puddles under Washington’s control,” said Barrasso. “Now, the Trump administration is taking the important first steps to remove this punishing regulation and start over. We can protect America’s waterways without hurting our farmers, ranchers, and landowners.”

Last week, the EPW committee held an oversight hearing titled “A Review of the Technical, Scientific, and Legal Basis of the WOTUS Rule.” At the hearing, Chairman Barrasso called for the withdrawal of the fundamentally flawed rule. Witnesses testified that the WOTUS rule is not supported by:

  • Army Corps of Engineers experience and expertise;
  • scientific studies; or
  • the law.

The hearing featured testimony from Major General John Peabody (Ret.); Dr. Michael Josselyn, of Wetlands Research Associates; Mr. Misha Tseytlin, solicitor general for the State of Wisconsin; Mr. Ken Kopocis, associate professor at American University Washington College of Law; and Mr. Collin O’Mara, president and CEO of the National Wildlife Federation.

Background Information

On April 30, 2015, Barrasso, along with Senators Joe Donnelly (D-IN), Jim Inhofe (R-OK), Heidi Heitkamp (D-ND), Pat Roberts (R-KS) and Joe Manchin (D-WV), led a bipartisan group of senators in introducing the Federal Water Quality Protection Act (S. 1140).

Barrasso’s bill directed the EPA and Army Corps of Engineers to issue a revised WOTUS rule that protects navigable water from water pollution, while also protecting farmers, ranchers and private landowners.

On Feb. 28, 2017, President Trump signed an executive order to revise the Environmental Protection Agency’s (EPA) and Army Corps of Engineers’ WOTUS rule. Barrasso attended the order’s signing ceremony at the White House. 

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