ESA

Recent Endangered Species Act policy news – June/July 2023

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A Louisiana pine snake, a threatened species under the Endangered Species Act, in the Kisatchie National Forest, La. Gerald Herbert/AP Photo

REGULATIONS

On June 22, the Fish and Wildlife Service and National Marine Fisheries Service proposed (for public comment by August 23) a new set of regulations for administering the Endangered Species Act, which for the most part cancelled many of the changes adopted by the Trump Administration.  This follows litigation that resulted in the Trump rules being kept in place pending this action by the Biden Administration.  The changes are in three rules governing these main topics:

  • Interagency consultations under ESA section 7, including clarifying the distinction between the environmental baseline and effects of the action
  • Procedures and criteria for listing, reclassifying, delisting, and designating critical habitat for species under ESA section 4, including loosening criteria for designating unoccupied habitat, validating the role of long-term effects such as climate change, and removing economic considerations from this scientific process
  • Reinstatement of USFWS’s blanket ESA section 4(d) rule which, prior to its repeal in 2019, extended the take prohibitions of ESA section 9 to all species. listed as threatened under the statute unless USFWS issued a species-specific rule

While those who liked the Trump version would be expected to criticize all of this, the conservation organizations are not entirely happy that some of the Trump changes have been retained.  A couple of key ones noted by the Sierra Club include:

“One such regulation severely undercuts critical habitat protections. The policy says a development project must affect critical habitat “as a whole” before alternative projects are considered. This would protect a species with a small range because a major infrastructure project would likely destroy its entire area, and thus it would be hard to approve such development. Not so for species with large ranges, like northern spotted owls and gray wolves. There would never be an instance where habitat was destroyed as a whole for a species whose range includes hundreds, thousands, or even millions of acres.”

“Another missed opportunity, conservationists say, was the chance to update the definition of “environmental baseline,” a term used to describe the habitat of a listed species before federal agencies begin a project. Agencies are supposed to evaluate whether their activities jeopardize a species’ survival and recovery. The Biden administration decided to keep the 2019 rule that allows officials to overlook the cumulative effects of past decisions for ongoing projects. Dams in the Pacific Northwest, for example, have pushed salmon and trout runs to the brink of extinction. When a federal agency is looking to extend a dam’s operating license or approve a new dam operating plan, its consultation with the wildlife agency shouldn’t ignore those past effects on the species’ biological condition.” (For land management agencies, this might apply to something like roads.)

On July 3, the Fish and Wildlife Service adopted a final section 10(j) rule that would allow it to establish experimental populations of endangered species in places outside of their normal historical range.  This is primarily in response to changes in species’ habitat resulting from climate change:

“Through this rule change we are adjusting our regulatory authority to allow us to adequately respond to these potential scenarios in circumstances where it may not be possible to recover a species within its historical range because of loss or alteration of some or all its suitable habitat,”

LITIGATION

Court decision in Maine Lobstermen’s Association v. National Marine Fishery Service (D.C. Cir.)

On June 16, the circuit court reversed a district court decision and invalidated a regulation issued by the National Marine Fisheries Service to protect Atlantic right whales from lobster and crab fishing activities.  The case is viewed as significant because it discusses and dismisses the use of the “precautionary principle” where there is scientific uncertainty under the Endangered Species Act.

NMFS consulted with itself on the regulation to determine if jeopardy would be likely.  In its Biological Opinion, NMFS concluded that federal fisheries entangle more than 9% of right whales each year.  According to the court, to reach this estimate, the Service put aside the data on confirmed entanglements and relied instead upon a “scarring analysis” from a 2019 study, noting “This approach provides the benefit of the doubt to the species and a more conservative estimate of total right whale entanglements.” NMFS stated that “uncertainty is resolved in favor of the species” and that it generally “select[s] the value that would lead to conclusions of higher, rather than lower, risk to the endangered species.” To defend its use of the worst-case assumptions, the agency pointed to a line in a House Conference Report for the 1979 amendments to Section 7 of the ESA, which stated that “this language continues to give the benefit of the doubt to the species.”  In its consulting role, NMFS concluded that the regulation would not jeopardize the species.  In adopting the regulation, NMFS acknowledged that its “model outputs very likely overestimate the likelihood of a declining population.”

The court declined to give deference to the agency, and held the BiOp was arbitrary because in the administrative record NMFS had erroneously claimed that its position was required by the ESA’s legislative history, and because its current “policy” on resolving uncertainty using the precautionary principle conflicted with its prior (opposite, under the Trump Administration) position.  In addition, the court stated:

“Statutory text and structure do not authorize the Service to “generally select the value that would lead to conclusions of higher, rather than lower, risk to endangered or threatened species” whenever it faces a plausible range of values or competing analytical approaches. The statute is focused upon “likely” outcomes, not worst-case scenarios. It requires the Service to use the best available scientific data, not the most pessimistic…

If brute uncertainty does make it impossible for the Service to make a reasoned prediction, however, the interpretive rules supply a ready answer: The Service lacks a clear and substantial basis for predicting an effect is reasonably certain to occur, and so, the effect must be disregarded in evaluating the agency action.”

However, the court left the regulation in place, concluding that NMFS might be able to justify it on remand.  (Perhaps meaning, “if they say it in a different way.”  It may also be possible for the consulting agencies to interpret a study that uses the precautionary principle as the best available science for predicting likely outcomes.)  Here is another summary of the case.

“Greenwire,” in its “occasional series” discusses the role of litigation in implementing the Endangered Species Act.  Some highlights:

During President Ronald Reagan’s first three years, 22 species were listed as threatened or endangered. By contrast, 100 species got protections in the Carter administration’s first three years.  In response, a frustrated Congress in 1982 amended the law to add deadline teeth.

A 2017 Government Accountability Office study found that plaintiffs filed 141 such ESA missed-deadline suits between fiscal 2005 and 2015.

“The Fish and Wildlife Service knows the workload, and it refuses to ask for enough money to get the work done,” Suckling (Center for Biological Diversity) said, “and then when it doesn’t get the work done, it goes to the judge and says, ‘Your Honor, I don’t have enough money.’”

“Of our total revenue in a given year, only about 5 percent comes from legal returns,” Suckling said. “It’s really just not that much money, [and] settlements are good for everybody.”

“We could avoid having to fully litigate cases and use scarce resources to do so if the agency would agree to settle cases more,” said Larris of WildEarth Guardians, “but they much more often decline to settle.”

In what’s still one of the most comprehensive studies of its kind, Biber and co-author Berry Brosi, a biologist now at the University of Washington, assessed the role played by petitions and litigation with hundreds of species. They concluded, in a 2010 issue of the UCLA Law Review, that species listed as a result of a petition or litigation faced greater threats than species listed on the agency’s initiative.  Biber said he believes the 2010 conclusions remain valid, saying that overall, petitions and litigation “are beneficial [in] ensuring that the species most at threat are protected.”

Former FWS Director Dan Ashe, who oversaw the agency during the Obama administration and now is the president and CEO of the Association of Zoos and Aquariums, assessed that “litigation overall has been beneficial” in sustaining a focus on protecting species.

 

Cottonwood: Some Observations from the March 23, 2023 Hearing and a PERC Post

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I am not a fan of watching Congressional Hearings because there are many people quite full of themselves with various axes to grind, who waste our time blathering on about unrelated things or giving political speeches about why the other party is bad.   It would be more fun if the videos had a chat function and we could throw virtual flags on things  like “unnecessary pontificating” and “completely off the topic of this hearing”.  Of course, both sides do it. Congresswoman Kamlager-Dove, from LA (my native district) was filling in for Joe Neguse (from Boulder, Colorado) as the ranking member. She’s in her first term. On the House Natural Resources Committee. From LA. If I were Joe, I would ask Congressfolk with skin in the national forest game or some knowledge thereof to fill in for him at a hearing like this.. but that’s just me.

Anyway, I watched this one in March and picked out some interesting wonkish parts for you.

It’s fun to watch Representative Kamlager-Dove (with a unique pronunciation of “salmon”)  grill (so to speak) Chris French on Cottonwood. Starts at 1:50:32.  It did make me wonder whether short timeframes (11 days) in the Sierra for reconsultation might have to do with pressure from important Congressfolk in California?  Anyway, Rep. Kamlager-Dove cuts Chris off before he has time to explain his views.

Chris also says that at a recent Regional Forester meeting, Cottonwood was thought to be a #1 problem, and also something like “every little thing that diverts natural resource biologists and others holds up implementation of wildfire risk reduction projects.”

At about 2:05:56 Susan Jane makes some statements about Plans making final decisions “binding decisions in plan level documents.” “Off-road vehicle use is authorized in forest plan with no further authorization.” 2:06:21. I thought OHV use was authorized in “travel management” decisions, which tend to be separate from forest plans. For example, the PSICC has a travel management decision we’ve discussed previously, but its forest plan is from 1984.. after doing the travel management plan would they have to reconsult on the forest plan? How is winter travel different from summer travel?  If there are final decisions made in plans, wouldn’t it be better to strip plans of final decisions so you wouldn’t have to reconsult on them all the time?  Oil and gas leasing availability decisions, travel management decisions, and so on seem to do just fine outside the forest planning process.  It seems like they’re done when they’re needed (or forced to via litigation) not on some plan revision timeline which may put a given forest 10 or more years out.

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Here’s a blog post from PERC that summarizes some of Cottonwood:

This week, multiple forest management bills passed out of committee in the U.S. House and Senate with bipartisan support. One of the bills passed by both chambers offers a permanent fix to a controversial Ninth Circuit Court ruling known as Cottonwood. This tiny provision carries huge implications for conservation, impacting the speed at which the Forest Service can mitigate the wildfire crisis and restore healthy forests.

What is Cottonwood? 

The ruling requires the Forest Service to halt forest restoration projects throughout a forest whenever a new species is listed, critical habitat is designated, or other new information is discovered about a species in that forest. The projects can’t proceed until the Service consults with the Fish and Wildlife Service over whether to change its overarching forest plans, a slow and expensive process.

Pausing projects to protect vulnerable species may sound reasonable, but the reality is that this is a duplicative and distracting process. The Service already analyzes this new information before proceeding with specific projects, ensuring that no harm can come to species. The additional plan-level analysis is a duplicative bureaucratic obstacle.

And the pause itself is no small matter.

Consider the case of the Bozeman Municipal Watershed Project in PERC’s headquarters in Bozeman, Montana. The project was intended to create critical fire breaks and insulate Bozeman’s watershed from wildfire risk, but the urgently needed restoration work was delayed by 18 years. Once one suit filed under the Cottonwood precedent was resolved, another would be put forth, creating delay after delay and leaving Bozeman’s drinking water vulnerable to a wildfire.

Such examples explain why the Obama administration said the Cottonwood ruling would “cripple” the Forest Service.

How can this hurdle be addressed?

A temporary legislative fix was put in place in 2018, but it expired in March 2023. With Cottonwood left unchecked, Forest Service Deputy Chief Chris French estimates projects could grind to a halt in 87 forest plans across the West. According to French, completing duplicative analysis for all of these forest plans would take “somewhere between 5 and 10 years and tens of millions of dollars.” With an 80-million-acre forest restoration backlog, that’s time and money the Forest Service does not have.

That’s why this bipartisan congressional action is so welcome. It’s past time Congress establishes a permanent fix for Cottonwood.

“Wildfires move fast, and they don’t wait around for bureaucracy that’s slow,” notes PERC CEO Brian Yablonski. “The bipartisan Cottonwood fix will foster more resilient forests, nurture healthy wildlife habitat, and play a critical role in tackling the wildfire crisis. With larger, hotter wildfires fueled by a backlog of forest restoration projects, it’s critical we remove needless and redundant obstacles to this urgent conservation work.”

PERC stands with other conservationists in thanking Sen. Steve Daines (R-MT) and Chairman Joe Manchin (D-WV) in the Senate and Chairman Bruce Westerman (R-AR) and Rep. Matt Rosendale (R-MT) in the House for their leadership in protecting our forests.

What happens next? 

Now that the bills have committee approval, they move forward for votes by the entire House of Representatives and Senate, after which they go to the President for his signature.

PERC will continue to support this bipartisan effort and move us farther down the path to fixing America’s forests.

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The FS testimony for the above hearing includes the fact that the two circuits disagree.  Since I live in 10th circuit territory, I thought that that was worth mentioning.

The pair of Ninth Circuit court decisions, commonly referred to as Pacific Rivers Council (PRC) and Cottonwood, which held that a new ESA listing of a species or critical habitat designation required the Forest Service to reinitiate consultation on approved land management plans because either the plan was an “ongoing action” (PRC) or because the agency retains discretion to authorize site–specific projects governed by the land management plan (LMP) (Cottonwood), have no basis in the ESA or its implementing regulations. LMPs provide general management direction for an entire national forest or grassland. This direction is then integrated into projects, which normally requires a second decision and ESA consultation to dictate what on–the–ground actions can be taken. A Tenth Circuit decision (commonly known as Forsgren) reached a different conclusion than the Ninth Circuit’s conclusions in Cottonwood, and instead held that the Forest Service did not need to reinitiate consultation on an approved plan with the Services because LMPs are neither ongoing nor self–executing actions for purposes of the ESA.

I don’t know why we would assume that the 9th Circuit is right and the 10th Circuit is wrong. In case you’re curious,there are many National Forests outside the 9th Circuit.

 

TGIF TSW Random News Roundup

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F to WaPo on State Farm in California Story: A to  E&E News

WaPo is not the only one, but their “analysis” (?) tells us it’s all about climate change.  But no mention of California’s unusual legal requirements, and no skepticism about the insurance companies potentially using climate to pad their estimates.    Best coverage so far goes to E&E News, and special kudos to them for making that article public.

Pielke, Jr. on Hurricanes

In the WaPo article, they pivoted to hurricanes.  Which reminds me that Roger Pielke, Jr. had a Substack piece on hurricanes this week that rounded up some current information. There are National Forests that are affected by hurricanes, so it is part of TSW country.

Still No Articles on “Feds are already allowing proponents to fund NEPA”

I have seen many more articles on the Debt Ceiling NEPA changes, but none so far that address this.  If you have read one, please link in the comments.  Curious minds need to know..are all other agencies able to do this? What’s their track record.

Write Legislation  in Haste, Litigate at Leisure

Speaking of the Debt Ceiling NEPA, I asked Dan Farber of UC Berkeley Law, about some of Center for Biological Diversity’s claims.  Many thanks to him for answering my qeustions!  He wrote a post exploring some of the text (NEPA ites will find the entire post interesting)  it and concluded:

In addition, given the rest of the garbled language, it’s not clear whether dropping the word “potential” was just another glitch, or was done to make the definition more concise, or was really intended to change the meaning. It’s equally unhelpful to compare the rule to the current, post-Trump version, which is much simpler, does drop potential, but also revamped the rule in other ways different from the new bill.

I suppose the bill might be amended somewhere along the way to fix the problem. But given the lack of time, and the dangers of opening up the bill to changes, I’m not sure whether that’s at all feasible. A later “technical corrections” bill would also be possible, but I think Democrats would oppose any effort to redraft the section in a way that limited the application of NEPA, while Republicans might oppose any fix that restored the current status quo as a back step,

In the absence of a quick legislative fix. I predict lots of fun litigation. Maybe the upshot will be to ignore the definition entirely and only give effect to the exclusions. In the meantime, however, all that litigation is only going to increase delays, which is ironic given that the whole purpose the NEPA changes is supposed to be speeding up the process.

A final thought: I stumbled into this drafting disaster by chance. How many similar glitches are lurking in the bill?  The moral may turn out to be: “Draft in haste. Repent at leisure.”

Red line Analysis of Debt Ceiling NEPA by Bipartisan Policy Center.

Thanks to Xan Fishman..”We don’t need legislative doomerism any more than we need climate doomerism.”

Here’s a link to a red line analysis and it also points to BPC and One Federal Decision recommendations.

 Legislators (or Their Staff) Who Cry Wolf

There’s a reason The Boy Who Cried Wolf is such a longstanding and popular story. Aesop lived between 620 and 564 BC and the story is still popular today. Question: is there any change to  NEPA or to its implementing regulations that according to Grijalva’s office, does not “gut environmental laws”?  How would we know what a real “gutting” would look like, if everything is “gutting?”  What other adjectives might be left on the table for future use? Here’s their “fact sheet”. It’s interesting to contract with the Bipartisan Policy Center and Dan Farber’s analyses.

No Wolves for You, Colorado

Perhaps this has been resolved, but there is a complex story behind Colorado’s initiative based wolf reintroduction program. It wasn’t supported by CPW wildlife managers, but thrust upon them.  Then the state legislature and the Governor got involved in the 10j question. This article in Colorado Politics by Marianne Goodland was over my head about the 10j stuff so good for her, unless Jon and other experts think she missed something.

Context: wolves have been migrating down from Wyoming anyway.  So why reintroduce? Many of us asked the same question, but it was on a ballot initiative.

Back to reintroduction. Below is from an article in gohunt.com by Kristen Schmitt.

The draft wolf reintroduction plan includes sourcing wolves from Idaho, Wyoming and Montana; however, that’s where it gets a bit tricky. In fact, language within the plan states that “[s]pecific agreements regarding donor populations have been discussed with these three states but final agreements have not yet been concluded.”

But that doesn’t seem to be true.

“We have not been and are not in conversations about moving wolves to another state. To be clear, we have not talked and are not talking to Colorado about moving wolves,” said Greg Lemon, a spokesperson for Montana Fish, Wildlife and Parks.

Idaho noted that “the states have not had any formal conversations” and Wyoming Gov. Mark Gordon is against Colorado’s reintroduction effort, which means that they don’t plan on relocating any wolves to the Centennial State. Period.

“Our current wolf management plan is working, and it works because it is designed to manage wolves in biologically and socially suitable habitats and to keep wolves out of areas of the state where conflicts would be highest,” said Gordon. “Our border with Colorado is an unsuitable area for wolves, and that would mean more human conflicts. Resolution of conflicts are almost always deadly to wolves.”

Oregon and Washington are suggested as possible alternatives though no formal discussions have occurred, according to Channel 9 News. The same goes for Utah.

“There are currently no established wolf packs in Utah, which would likely not make us a viable candidate for providing wolves,” said a Utah Division of Wildlife Resources spokesperson.

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Feel free to add your own “news of the week” in the comments.

Director Martha Williams’ Science Degree Kerfuffle at USFWS- A Legal, Political or “Scientific Integrity” Issue?

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Not only is this story interesting, but how it’s been covered is also interesting. Apparently, the Director of FWS is required to have scientific credentials. But scientists are saying that appointing a lawyer instead is..illegal. and one wonders “why now”?

According to this AP/ABC News story..

Federal law says only someone with “scientific education and experience” can be appointed director of the service.

Attorneys for the Biden administration said in court filings that the law requires Williams’ education to be considered “cumulatively” with her experience.

“She clearly has the requisite background,” they wrote.

Here’s what E&E news says about “education and experience”:

Justice Department attorneys rejected Aland’s arguments, starting with his claim of being harmed, which they noted was framed around the idea that somebody could seek to overturn a decision by Williams because of her qualifications. The attorneys dismissed that argument as “speculative at best.” The Justice Department added that “Williams’ extensive career as a professionally trained public servant in the field of fisheries and wildlife management is sufficient to satisfy the requirements” of the law. “The statute provides that both education and experience should be considered when confirming that a nominee has adequate knowledge of the principles of fisheries and wildlife management, but there is no independent requirement that she attain any specific education,” the attorneys wrote.

They claim Williams is serving in contradiction to the administration’s own policies and ethics rules. They pointed to an assessment done by Biden’s Scientific Integrity Task Force that suggests executive branch positions should be filled by candidates with appropriate credentials and that violations of scientific integrity policies should be taken as seriously as violations of ethics rules.

So there are two separate concerns here.. one is the unique requirements for FWS Director.. and the other is more of a global “need for a science background” concern- which could be applied to natural resource agencies, or DOE or…

With the exception of Williams, every director since the agency was overhauled in the 1970s had a scientific education, according to Public Employees for Environmental Responsibility.

“I see this appointment as a tipping point, where politics will forever override statutory credentials,” said Parsons, who authored the letter.

In the lawsuit challenging her confirmation, Illinois lawyer Robert Aland claimed decisions made by Williams would be “contaminated” since she was appointed illegally. Wildlife “could suffer the most serious adverse consequences” as a result, he said.

Could wildlife suffer direct consequences from the illegality? I think not. So the assumption is that perhaps regulatory decisions will go wrong if political appointees don’t have a science background? Or is it all agencies that work with the environment? But at the Cabinet level, they tend to be politicians, who tend not to have science backgrounds- and then there is direction from anonymous White House officials that can overrule Cabinet Secretaries.. so I think the “technical background” argument is pretty well lost.

 The preceding FWS director, Ashe, had a background in marine affairs and wetlands and had also served as chief of the service’s National Wildlife Refuge System and as the science adviser to the director.
Ashe was preceded as director by a decades-long FWS career employee. The four directors before that had earned a master’s in fisheries science, a doctorate science, a doctorate in forest resources, a master’s in wildlife ecology and a master’s in forestry, respectively. All had field experience.

Note the mention of “field experience” in the E&E news article. I think it’s a good thing to have, but many appointees and career folks come without it.

“Many familiar names, and a few close associates and friends, are among the signatories to this letter. I would ask each of them to reflect on the words of Voltaire — To hold a pen is to be at war,” former FWS Director Dan Ashe said in an email. “Any individual’s qualification to serve as U.S. Fish and Wildlife Service Director is a matter between the President and the U.S. Senate, and Martha Williams is the confirmed Director. Her job is formidable and she deserves our confidence and support. She has mine.”

Now I don’t know Dan Ashe, but the warfare thing seems a bit  over the top (although I have to admire using Voltaire in snippets for media quotes) and mildly threatening.

I thought it was interesting where CBD is on this (from the ABC news story)..since their main work seems to be suing FWS..

Center for Biological Diversity government affairs director Brett Hartl said the group knew about Williams’ lack of a degree, but decided nevertheless to support her.

He said his group believed having “an outside person” serve as director would offer a better opportunity to solve deep cultural issues that have plagued the agency over the years. Hartl agreed that the law requires a science degree but said the Senate has the ultimate authority to decide who’s qualified.

Does anyone know what the “deep cultural issues” might be?

Here’s the scientists’ letter.

And finally this paragraph from the letter:

A 2022 survey of Service personnel conducted by the Union of Concerned Scientists revealed the persistence of significant barriers to science-based decisions within the Service: 43% agreed that the “consideration of political interests” hinders the ability of the agency to make science-based decisions; and 19% agree that the “absence of leadership with scientific experience” also hinders science-based decision-making. See raw survey tabular results here.

Unfortunately for me, the links in the letter (bolded above) were not live. I found this on the UCS website  but it wasn’t helpful.. so if anyone has the links from the scientists’ letter, please put them in the comments.

Is Something Rare (Almost) Everywhere? Geothermal vs. Toads and the Search for Land for Renewables with Fewest (No?) Impacts

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Ormat’s Steamboat Hills geothermal plant outside Reno, Nev., supplies electricity to the Los Angeles Department of Water and Power. (Ormat Technologies)

 

Update: the Fallon Paiute-Shoshone Tribe is a plaintiff  with CBD on this lawsuit against this project.

Another excellent piece by Sammy Roth of the LA Times in his Boiling Point newsletter. The Times has something like 99 cents for six months which IMHO is worth getting if you only read Sammy’s work. He also has links to interesting articles on wind and solar and wildlife that I hadn’t seen. And perhaps you can sign up for his Boiling Point newsletter without being a subscriber.  This is a controversy about something considered to be good for decarbonization (geothermal) but has localized environmental impacts. We usually see this as a “good ENGO’s vs. bad industry” kind of thing, but this seems to be a “good ENGO vs. good industry” kind of thing. I like how Sammy interviews both Patrick Donnelly of CBD and folks from Ormat, the geothermal company, and tries to put the pieces together.

Looking through our lens posited yesterday considering the Biden Admin and Native people, I don’t see any mention of Native concerns in this piece (I’m checking with the reporter).  Also the Biden Admin would have to go with the science of the USFWS because of the unique science-based characteristics of ESA (Jon can correct me on this).  And perhaps their own views of “scientific integrity” as Jon brought up here yesterday.

 

The nation’s largest geothermal power company is preparing to sue the Biden administration over its decision to protect a tiny toad, in the latest high-stakes showdown between renewable energy development and wildlife conservation.

In a letter to Interior Secretary Deb Haaland and the director of the U.S. Fish and Wildlife Service — a copy of which was shared exclusively with The Times — Ormat Technologies Inc. warned Wednesday that it would sue the wildlife service in 60 days if the agency doesn’t revisit its decision to declare the Dixie Valley toad an endangered species. That decision might otherwise derail Ormat’s plan for a Nevada geothermal plant that could potentially supply climate-friendly electricity to California.

Federal scientists say the 2-inch amphibian’s wetland habitat — the only place it’s found on Earth — is threatened by Ormat’s renewable energy project. The Reno-based company disputes that conclusion, arguing it’s grounded in shoddy science.

Paul Thomsen, Ormat’s vice president of business development, told me federal officials wrongly assumed his firm’s geothermal production would drain the nearby Dixie Meadows, when the company’s tests have suggested otherwise. He also said the Biden administration had illegally invoked the Endangered Species Act based on speculative future harm to the toad.

“For us, the precedent there is terrifying,” Thomsen said. “If this action were to stand, many renewable energy projects in the West could be thwarted simply based on a concern, with no evidence that they may impact a species in the future.”

“We’re being convicted of a crime that we haven’t committed,” he added.

To help avert the worst consequences of global warming — which is already fueling deadlier and more destructive heat waves, fires, droughts and floods — the U.S. must build huge amounts of renewable energy infrastructure at a breakneck pace.

But across the American West, endangered-species concerns have emerged as a key barrier to construction of solar farms, wind turbines, power lines and lithium mines that would supply electric-car batteries. Lawsuits and protests from conservation activists, Native American tribes and rural residents are poised to slow or block a growing number of projects.

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As far as Donnelly is concerned, the geothermal industry has a “dirty little secret,” which is that its facilities frequently dry up hot springs. He pointed me to a 2000 research paper from the U.S. Geological Survey concluding that when geothermal plants are built, impacts to nearby water features such as hot springs, geysers and steam vents “should be viewed as the rule, rather than the exception.” The paper cited several decades-old examples involving Nevada plants since acquired by Ormat.

“There’s this huge body of peer-reviewed literature,” Donnelly said.

When I asked Ormat’s Thomsen about that literature, he told me the geothermal plants cited in the research paper used an older technology that the company has phased out at most of its facilities. As for Dixie Meadows, he told me Ormat’s flow testing found no direct connection between the deep geothermal reservoir and shallower springs that he said feed the wetlands.

He also noted that Ormat recently reduced the plant’s proposed size from 60 megawatts to 12 megawatts, and that the company agreed to extensive real-time monitoring to ensure the wetlands aren’t affected. He said the monitoring would cost roughly $1.5 million a year during the geothermal facility’s operation, adding to a likely construction cost of around $60 million.

Federal officials, Thomsen said, failed to take those factors into account before protecting the Dixie Valley toad last year.

“We support the Endangered Species Act,” Thomsen said. “We want it to be implemented properly.”

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An Interior Department spokesperson declined to comment on Ormat’s 60-day notice warning of a potential lawsuit.

But in its species assessment of the Dixie Valley toad, Interior’s Fish and Wildlife Service cited research that it said showed the springs feeding Dixie Meadows “are not hydraulically isolated from the underlying geothermal reservoir.” As a result, the toad’s wetland habitat “can be impacted by production pumping and/or injection for the geothermal project,” the agency wrote.

Donnelly, meanwhile, pointed me to data showing that temperatures and water levels increased in one spot at Dixie Meadows after Ormat finished flow testing — a possible indication of underground hydraulic links that could put the toad at risk.

“The toads have this incredibly delicate relationship to temperature,” Donnelly said. “If you start cooling off those springs, they might all freeze to death. And if you start heating up those springs, they might all boil to death.”

Asked about the temperature and water level changes, Ormat’s senior legal counsel, Laura Jacobsen, told me via email that small amounts of data from a single spring are “far from sufficient to establish the flow test impacted the springs,” especially with temperature readings “within the variable baseline range for that spring.” The company also pointed me to a Bureau of Land Management document concluding that flow tests “indicate little to no observed changes in spring discharge conditions.”

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I’ve been shining a light on similar battles across the region through The Times’ Repowering the West series. I’m now writing Part 3, dealing with solar sprawl in southern Nevada. Next month I’ll travel to Idaho to report Part 4, about why the red state’s dominant power company set a goal of 100% clean energy even when lawmakers haven’t ordered it to do so.

In the meantime, Dixie Meadows is far from the only geothermal conflict I’m tracking. Another project contemplated by Ormat could be built just outside Gerlach, a Nevada town best known as the gateway to the Burning Man art and music festival. Local residents and Burning Man leaders are fighting to block exploratory drilling, saying a geothermal plant could industrialize their rural outpost and scare off tourists. The San Francisco Standard’s Maryann Jones Thompson wrote about the controversy.

I was also struck by a recent study from the U.S. Geological Survey, funded in part by Ormat, finding that populations of greater sage-grouse — an iconic Western bird known for its mating dance, and a prime example of the extinction crisis — “declined substantially in years following the development of the geothermal energy plants” in Nevada, as the Geological Survey described the study. The agency has built a mapping tool that it says can help companies find low-impact spots to build geothermal plants.

“It’s great that they’ve developed a tool that can identify areas that are more or less sensitive,” Ormat’s Thomsen said.

Ultimately, that’s what it’s going to come down to: finding the best places to put renewable energy. It’s as true for small-footprint geothermal plants as it is for sprawling solar farms, vast fields of wind turbines and lengthy power lines.

A person could wonder if the first step in renewable energy buildout would have been to work with companies to identify sites with less potential for wildlife and Indigenous concerns. Rather than set targets, make assumptions, fund companies, and when they are far down the road, say “oops, not there.”

Seems like we might have done better by making sure top-down determinations of what should be done with renewable energy installations are actually viable in the real world.

What Aspects of Wolf Management are the Responsibility of the Forest Service? Potential CBD Lawsuit

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Colorado wolf photo from CPW
Thanks to the non-paywalled Cowboy State Daily...here’s the link.

Wolves that cross the border from Colorado into Wyoming may be shot on sight, and it’s up to the U.S. Forest Service to stop it, an environmental group claims.

The Center For Biological Diversity plans to file a lawsuit against the Forest Service in U.S. District Court unless the agency steps up to protect the wolves. That’s what the group claims in a letter sent to USFS and U.S. Department of Agriculture officials. The Forest Service falls under the USDA’s jurisdiction.

The possible lawsuit may initially seem like a legal dead end, because the Forest Service doesn’t manage wolves.

The Wyoming Game and Fish Department has jurisdiction over wolves in Wyoming, and the Colorado Parks and Wildlife Department is primarily in charge of the growing wolf population in that state.

But the Forest Service does have authority to shut down wolf hunting in its jurisdiction – and indeed already has shut down prairie dog shooting in parts of Wyoming, the Center for Biological Diversity claims in its letter.

In the case of wolves, the group argues that the Forest Service should declare a no-kill zone on the Medicine Bow-Routt National Forest, headquartered in Laramie.

Center for Biological Diversity attorney Collette Adkins told Cowboy State Daily on Thursday that she couldn’t discuss the pending case in detail. However, she affirmed the group’s stance on the Forest Service having authority to stop hunting in some instances.

“That’s not a question at all, and forest supervisors do that regularly for various reasons, including for protecting an endangered species,” she said.

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Despite not having any wildlife management authority in Wyoming, the Forest Service still has authority to ban the killing of wolves on the Medicine Bow-Routt National Forest, thus giving them at least some degree of protection, the Center for Biological Diversity claims.

The agency has been negligent in that regard, the group says.

“The U.S. Forest Service has not issued any orders to close wolf hunting or trapping or otherwise protect wolves on the Medicine Bow-Routt National Forest,” the group’s letter states. “Nor does the Land and Resource Management Plan for the Medicine Bow-Routt National Forest have any standards or guidelines aimed at conserving wolves.

“In fact, the Forest Plan, developed in 2003, includes no mention of wolves at all.”

I wonder if that’s because there were not wolves there then?

Here’s the FS side on the prairie dog shooting question..

The Forest Service has shut down prairie dog shooting and should be able to do the same for wolves, the Center for Biological Diversity argues.

“As just one example of the Forest Service’s use of this authority to prohibit hunting, the Forest Supervisor has ordered a seasonal closure of prairie dog hunting on Thunder Basin National Grassland,” the letter states. “The Forest Service’s authority to restrict hunting on national forests has been repeatedly confirmed in the courts.”

Forest Service spokesman Aaron Voos recently told Cowboy State Daily that the agency implements seasonal closures of prairie dog shooting in some parts of the national grassland.

However, that’s not to protect the burrowing critters from being shot. Rather, it’s to protect raptors and other wildlife that feast on perforated prairie dog carcasses from getting lead poisoning from bullet fragments.

The Forest Service has shut down prairie dog shooting and should be able to do the same for wolves, the Center for Biological Diversity argues.

“As just one example of the Forest Service’s use of this authority to prohibit hunting, the Forest Supervisor has ordered a seasonal closure of prairie dog hunting on Thunder Basin National Grassland,” the letter states. “The Forest Service’s authority to restrict hunting on national forests has been repeatedly confirmed in the courts.”

Forest Service spokesman Aaron Voos recently told Cowboy State Daily that the agency implements seasonal closures of prairie dog shooting in some parts of the national grassland.

However, that’s not to protect the burrowing critters from being shot. Rather, it’s to protect raptors and other wildlife that feast on perforated prairie dog carcasses from getting lead poisoning from bullet fragments.

What Does CASPO Listing Mean and How Does the Process Work?

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Larry frequently cautions us about the different kinds of owl habitat, so I thought I’d post this handy table from the 2019 Forest Service CASPO conservation strategy.

Anonymous posted this link under “Topics of Interest”. It says it’s a proposed rule..

We, the U.S. Fish and Wildlife Service (Service), propose to list two distinct population segments (DPSs) of the California spotted owl (Strix occidentalis occidentalis), a bird species from California and Nevada, under the Endangered Species Act of 1973, as amended (Act). This determination also serves as our 12- month finding on a petition to list the California spotted owl. After a review of the best available scientific and commercial information, we find that listing the Coastal-Southern California DPS as endangered is warranted, and that listing the Sierra Nevada DPS as threatened is warranted. Accordingly, we propose to list the Coastal-Southern California DPS as an endangered species under the Act and the Sierra Nevada DPS as a threatened species with a rule issued under section 4(d) of the Act (‘‘4(d) rule’’). If we finalize this rule as proposed, it will add these two DPSs to the List of Endangered and Threatened Wildlife and extend the Act’s protections to them.

She/he/they added .. “including a bunk 4(d) rule.”

Steve posted on the E&E news story here.

Claudia Elliott asked how this determination of “threatened” might change the management of giant sequoias and asked for our help and insights. Also, she asked what is a 4(d) rule?

It would be great if someone could explain the steps in the process from here on in, and especially how that ultimately gets translated into management direction, including where the public might be involved. Thanks!
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We can also discuss 2ndLaws comment under Steve’s post. Hopefully it won’t be confusing to focus all the current CASPO discussion on this thread. Here’s 2nds comment:

This listing announcement is foreshadowing a aggressive program of “logging it to save it” even though it is well-established (thanks to the state-and-transition models used by carbon scientists) that the adverse effects of fuel reduction logging, plus unavoidable wildfire, are worse for spotted owls than the effects of wildfire alone, due in large part to the low probability that fuel logging will interact with wildfire during the brief period that treatments are effective.

Raphael et al (2013) used a state-and-transition model to explore the effects of landscape fuel reduction logging on spotted owls and found:

Active fuel reduction activities in moderate habitat contributed to substantial short-term (simulation years 0 to 30) population declines under the larger area, higher intensity scenarios. … The combination of BDOW interactions and high-intensity, larger-area treatments contributed to the most substantial NSO population bottlenecks. … It appears that management regimes that take out owl habitat through treatments (either current or potential future) do not reduce the amount of habitat that is lost to wildfire enough to make up for the habitats lost through treatments.

Principle Investigator: Dr. Martin G. Raphael. Project Title: Assessing the Compatibility of Fuel Treatments, Wildfire Risk, and Conservation of Northern Spotted Owl Habitats and Populations in the Eastern Cascades: A Multi-scale Analysis. JFSP 09-1-08-31 Final Report, Page 19. http://www.firescience.gov/projects/09-1-08-31/project/09-1-08-31_final_report.pdf.

Sierra At Tahoe Ski Area Re-opens

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After the Caldor Fire seriously impacted the ski area, Sierra At Tahoe is open again. As you can see, it was a high intensity portion of the fire, with the previous forest being highly flammable and loaded with decades of heavy dead fuels. After several droughts, the area did not have any salvage operations. The area is also known to have nesting pairs of goshawks around.

As you can see, snow sports people will be enjoying a new experience of skiing and boarding, without so many trees ‘hindering their personal snow freedoms’. *smirk*

Sensitive species and NFMA?

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Los Padres ForestWatch. The California spotted owl is listed as a Sensitive Species by the U.S. Forest Service and by the California Department of Fish and Game as a Species of Special Concern.

This question came up in the fuel treatment post yesterday, but it is worthy of its own post (wonky as it is).  I think there are some misconceptions out there about sensitive species.  This is without refreshing my memory (which I should do more often any more), but I was heavily involved in lots of this.

NFMA does not require identification or protection of sensitive species.  NFMA requires plant and animal diversity.  Habitat for viability is a requirement for diversity in the planning regulations (old and new).  Sensitive species have never been found in the planning regulations.  To the extent there was an implied regulatory requirement in the 1982 regulations, it was for viable populations of management indicator species (MIS).

“Sensitive species” was apparently created by the Forest Service (I’m guessing the Wildlife staff) as a means of both meeting the NFMA viability requirement and preventing listing under ESA, and requirements for sensitive species (including preparation of a Biological Evaluation) were to be applied to both plans and projects. The details may be found in FSM 2670 (which also addresses ESA requirements) and FSM 2620.  The current version of these is dated 2011, prior to the 2012 Planning Rule.  (The agency has frozen up in its efforts to update this manual direction.)

This led to a lot of confusion, even by judges, regarding what was required at the project level.  It sometimes appeared that parties/judges were saying that the NFMA viability requirement applied to each project (like ESA).  At one point (2004ish?), the Forest Service, issued an interpretive rule to clarify that the viability requirement in the 1982 planning regulation applied only to forest plan decisions (unless the plan imposed its own viability requirement on projects, which some did).

It also made this problem a focus of its efforts to produce a new planning rule.  Language now makes it clear that nothing in the 2012 Planning Rule applies to projects, and specifically the new requirements for species of conservation concern (SCC) apply only to forest plans (and projects must be consistent with what the plan says).

Meanwhile, forest plans that are being revised are following the new requirements for species of conservation concern. The Forest Service issued an internal letter to regional foresters on June 6, 2016 explaining that it would phase out the sensitive species designation. It recognized that, “As noted in the preamble to the 2012 planning rule, “[Regional Forester Sensitive Species] are…similar to species of conservation concern.”   It also stated that, “Applying both systems on the same administrative unit would be redundant.” Consequently, “Once a revised plan is in effect, the Regional Forester’s Sensitive Species list no longer applies to that unit.”

The letter acknowledges that a biological evaluation must still be prepared for a revised forest plan.  The letter doesn’t specifically instruct forests that have not revised their plans to keep preparing BEs for projects, but the Manual direction is still in place, so it is still official policy.

One observation I’ve made in reviewing forest plans revised under the 2012 Planning Rule is that sensitive species are often NOT considered “similar to species of conservation concern.”  Many sensitive species (with “viability concerns”) have not been designated SCC (“substantial concern about the species capability to persist over the long term in the plan area”) during forest planning.  Why is that?

The other thing I’ve seen when forest plans are being revised is that the Forest Service is not doing a very good job of explaining to the public that they are no longer going to have project analysis requirements for at-risk (but not listed) species separate from NEPA, and that some species they used to address at the project-level may not be addressed at all after the forest plan is revised.