Legislators assert states rights, encourage Sage Grouse Task Force as session winds down

Two other items of interest as this session of the legislature works toward adjourning sine die:

Senate Joint Memorial 105 has passed both houses.  It calls on Congress to reclaim its Constitutional role over the management of species and public lands. The memorial asks “that Congress re-examine, reform and reauthorize the Endangered Species Act, the National Environmental Policy Act, the Equal Access to Justice Act, and any other federal law that disrespects the role of states and local governments in land management decisions and leads to costly and frivolous lawsuits that strip authority from Congress and place it in the hands of the judiciary.”  It was adopted on a voice vote by the Senate and by a vote of 57-10-3 in the House.

Senate Concurrent Resolution 125 was introduced in the Senate on March 1st and adopted by voice vote on March 5^th.  The resolution endorses and encourages the Governor in his efforts “moving forward with the Governor’s Sage Grouse Task Force.”  It moved on to the House and on March 23^rd it was adopted there on a voice vote.

Policy Makers Consider Sage Grouse

On Monday, a joint meeting of the Senate Resources & Environment Committee and the House Resources & Conservation Committee held a State and Federal Sage Grouse Oversight Hearing.

Virgil Moore, Director of Idaho Department of Fish & Game led off the hearing pointing out that  Idaho is trying to forge a state direction for recovery of sage grouse.

Sage grouse has a biology that is different than that of other ground birds.  They have a low reproductive rate.   They live a long time which presents a different management issue.  Their winter survival rate is very high for land birds and they are very migratory.  Sage grouse home range can often be over 200,000 acres which complicates management.  Total habitat is 15 million acres, of which 10 million is a priority.

Because hens and chicks are so well camouflaged, the males who are much more visible are counted and an estimated number is derived.  There has been downward trend of males returning to the communal breeding grounds known as leks.  Males have a high fidelity to strutting areas.

Currently, hunting for sage grouse is highly restrictive and limited hunting is allowed if an area’s population is sustainable.

Bill Meyers, an attorney with Holland and Hart discussed the litigation history of sage grouse.  In 2005, U.S. Fish & Wildlife Service (USFWS) determined that sage grouse did not warrant protection.  That decision was challenged in court by Western Watersheds.  A review led to a decision by the agency that sage grouse listing as endangered was “warranted but precluded” because of the number of species seeking listing and the danger of extinction was moderate.

Another lawsuit was settled giving the agency until 2015 to make a decision.  There are nine ESA cases pending that have been filed by Western Watersheds.

There are 11 states with sage grouse habitat.  The USFWS plus BLM and the Forest Service are putting pressure on the states to move forward on recovery efforts.  Sage grouse habitat recovery will impact all the other multiple uses on BLM land.  All other activities are second priority behind sage grouse.

Nate Fisher, Administrator of the Idaho Office on Species Conservation talked from the biological, legal and policy perspective and what the path forward might be.  This is not an issue just in Idaho but in 10 other Western states.  Idaho was one of the first states to organize local working groups—12 of them.  Congress did provide some funding for the groups but the work has all been voluntary.  USFWS feels there are inadequate regulatory mechanisms that could lead to recovery with Idaho’s efforts. 

Sage grouse could be the spotted owl of the sagebrush steppe.  There is now a sage grouse planning initiative which will cover 11 states.  BLM might move forward with greater restrictions on the entire area –not just the areas where there are birds.

Wyoming has put together a strategy that USFWS says may meet the regulatory requirements.

A continuing issue is how to reconcile a hunting season with the listing.  The question is who decides when there are sufficient numbers of sage grouse across the range of habitat.  Idaho has a huge amount of the best habitat.  The Governor is very interested in working with Wyoming.

Representative chastises EPA for lack of action to protect salmon, but organization questions the data behind the threat

Representative chastises EPA for lack of action to protect salmon, but organization questions the data behind the threat

President Obama has issued an executive order for a retrospective review of existing regulations (including existing environmental regulations) that are unduly burdensome to industry. Section 5 of the order also says that “each agency shall ensure the objectivity of any scientific and technological information and processes used to support the agency's regulatory actions.” A review of the whole consultation process within the regulations governing the Endangered Species might be a great place to start.

Last month Rep. Edward Markey, a Democrat from Massachusetts and two representatives from California issued a press release about a letter they had sent to the Environmental Protection Agency (EPA) about its lack of action to protect endangered Northwest salmon from pesticides. While EPA has jurisdiction over registration of herbicides and pesticides, the National Marine Fisheries Service (NMFS) has jurisdiction over salmon recovery. And therein lies the problem.

Under ESA, EPA needs to consult with NMFS on the issue of the impact of herbicides and pesticides in salmon streams. NMFS, however, has no expertise with the products while EPA has been testing, studying and regulating them for decades.

A lawsuit was filed in 2002 against EPA by environmental and fishing groups, including the Washington Toxics Coalition. The U.S. District Court for the Western District of Washington at Seattle found that EPA had violated its obligations under the Endangered Species Act.

The court ordered EPA to review the effects of 54 pesticide active ingredients on threatened and endangered salmonids and to consult, as appropriate, with NMFS on any of the 54 pesticides that may affect salmon. In 2004, the court ordered protections—including buffer zones—to prevent the potential adverse effects of any of the 54 pesticides on threatened and endangered salmonids.

The letter from the three Congressman to the EPA Administrator says that it is time for EPA to take action and asking EPA for a progress report in protecting this “critically important species” and pointing out that restoring salmon “could yield annual economic benefits of over $5 billion.” According to the Congressmen from Massachusetts and California, “We have science on our side…It’s time for EPA to take action.”

There are a couple of problems with the assertions made in this letter. First, the data used to determine the pesticide threat to salmon looks to be inaccurate.

Washington Friends of Farms & Forests (WFFF) is an organization concerned with producing safe, abundant, economical food, fiber and landscaping and maintain a healthy, productive and safe environment for our agricultural and urban communities. They responded to the Congressmen, calling into question the facts, science and computer models that NMFS used in making the determination that these 54 pesticides posed a threat to salmon.

They pointed out that use of the pesticides listed is significantly lower than in the past, asserting that no fish kills have been reported from the legal use of these products. In fact many salmon runs have been at record high levels in recent years.

It seems NMFS created its own computer models rather than use the ones that EPA had developed to evaluate the safety of these products for decades. In addition, NMFS used a farm pond model which assumes stagnant water to predict the exposure levels of salmon, forgetting that juvenile salmon swim in fast moving waters and rest is in areas of moving water. One NMFS model included a use that was never labeled and modeled uses not currently on labels. The agency assumed amounts much higher than are actually used. The models were so inaccurate that the EPA, the California Department of Pesticide Regulation, the Oregon and Washington Departments of Agriculture were all critical. The National Association of State Departments of Agriculture has asked that the BiOps be redone.

In six years of monitoring surface water in agricultural areas, the Washington State Department of Agriculture has noted that these pesticides are at or below detection levels. NMFS did not to consider this data in their findings. They also left out the department’s database which helps determine the amount and locations of product used and correlates the location and timing of fish presence.

Next, with regard to the economics which the Congressmen raised in the letter to EPA: the NMFS outlined the economic cost to EPA to implement the BiOps, but not the costs to farmers and foresters. One farmer in Oregon estimated that if the buffer zones were enacted he would not be able to produce crops on 50% of his farm.

Rep. Markey estimated that full recovery of salmon would bring $5 billion in annul economic benefits to Oregon and Washington. A substantial figure, but compare it to agriculture production in Washington at $16 billion in economic impact; food processing and manufacturing, $17 billion in total economic impact; and agriculture and forestry support industries; $1.8 billion in total economic impact. These figures were compiled by Washington State University in November, 2010.An updated study based on 2009 figures shows that Oregon agriculture is directly and indirectly linked to $22 billion in sales of goods and services—15% of the statewide totals of sales in all industry sectors, and that’s during a recession year. Processing added $2.2 billion to the value of Oregon-grown food and fiber.

Federalism & Water: State Primacy in the Balance - ICIE’s Annual Meeting Program

ICIE’s Annual Membership Meeting program in November examined three issues which we have been following for years. The issues of the salmon Biological Opinion (BiOp) and bull trout critical habitat are related to the Endangered Species Act. The NPDES General Permit relates to the Clean Water Act. What they all have in common is a history of third party lawsuits, followed by revised consultations or regulations, and additional lawsuits against the revision. The result is these three issues have existed in a state of legal limbo for a decade or more with no actual resolution.

ESA/salmon BiOp/pestcide consultation issue driven by litigation
Background: In 1996, Congress passed a law requiring a re-evaluation of pesticides to be done by 2008 with concern focused on the impact on human health. In 2001, the Washington Toxics Coalition joined three other environmental activist groups in filing a lawsuit contending that EPA had violated the Endangered Species Act by not consulting with National Marine Fisheries Service (NMFS) when EPA issued new guidelines for the use of three widely-used pesticides. A U.S. district judge ruled that EPA had to complete a consultation by December, 2004.
Since that time there have been numerous injunctions, consultations and additional lawsuits on both sides of the issue.

Dirk Helder, of the Idaho Operations Office of the EPA, presented an update on the status of this issue at ICIE’s 2010 Annual Meeting. The lawsuit affects 115 counties in the Northwest: 40 in California, 33 in Washington, 32 in Oregon and 10 in Idaho. It addresses impacts on salmon in freshwater habitats, including “intermittent streams, off-channel habitats, drainages and man-made conveyances that lack salmonid exclusion devices.”

The latest Biological Opinion (BiOp) establishes target concentrations and buffer zones based on the width and depth of the river, air vs. ground application, the application rate, and the application equipment (droplet size). It sets a maximum wind speed of 10 mile per hour and requires reporting of fish mortality up to four days after application.

The problem is the consultation process of establishing BiOps is broken, says Heather Hansen of the Washington Friends of Farms and Forests. She asserts that when the Endangered Species Act was written, the consultation process was envisioned as a way to address what is going on in a specific place at a specific time.

Pesticide consultations need to be ongoing, she says. When salmon were listed, the National Marine Fisheries Services exploded in chaos. That was ten years ago, but they haven’t really come up with a structure for dealing with salmon going inland and the terrestrial issues associated with it.

Hansen says the NMFS didn’t use current labels or current monitoring data in establishing this BiOp. They used their own rather than EPA models and made invalid assumptions based upon incorrect data. Financial impact studies haven’t been conducted. User groups haven’t had input, neither have the registrants.

"The folks at EPA are as frustrated as everyone else with this process," Hansen says.

Hansen notes that a potential solution is oversight of the relationship between the NMFS and the EPA. Re-initiate consultation on the first three BIOs. Ultimately, the end game is that we need a functional, clear pesticide registration process to prevent future litigation.

A resolution passed by the National Association of State Departments of Agriculture asks that the EPA and NMFS and USFWS establish a process that includes stakeholder input, defines “best available science” and has a process to evaluate effect. BiOps must include “targets” for pesticide levels and must include an economic assessment.

Ongoing, there’s a lawsuit against NMFS on BiOp 1. Grower groups have petitioned EPA for a rulemaking on how the BiOp is implemented, and CropLife America has filed a petition with NMFS to clarify stakeholders’ rights for input into the process. There is further litigation likely, Hansen says, that could bring the whole country into this problem.

NPDES General Permit Issue: Specifics confound applicators
In 2006, the EPA issued a pesticides rule under the Clean Water Act (CWA) stipulating that the application of a pesticide did not constitute the discharge of a pollutant, and therefore did not require an NPDES permit when it was applied to, over, or near waters of the US for control of pests. That rule was challenged when an organic farmer in Gem County, Idaho, who didn’t want applications drifting over his crops and filed a lawsuit against the local mosquito abatement district. The court ruled that the application had been made following the label, but should have been made under an NPDES permit. This resulted in a ruling by the 6th Circuit Court of Appeals that such a permit is required as of April, 2011. The EPA recommended a Pesticide General Permit (PGP) for the six states which do not have primacy under the CWA which includes Idaho. The other 44 states have primacy and have their own permit programs which must be revised to comply with this new ruling by April, 2011, as well.

The pesticide uses that will come under this Pesticide General Permit include: mosquito and other flying insect control; aquatic weed and algae; aquatic nuisance animal control; forest canopy pest control; and pesticide application to water.

Areas that will not require the PGP include: applications to crops or forest floors; off target spray drift; irrigation return flow from agricultural fields; and agricultural storm water runoff.

A notice of intent will be required by some applicators in Idaho: Federal/state government with pest control function; Irrigation, weed, mosquito control districts; application above threshold.

The PGP will also require monitoring of management practices and visual monitoring for adverse effects. Water quality based effluent limits will need to be monitored to evaluate water quality. Applicators will need to conform to best management practices, which most do, but if they don’t, they will need to use the lowest amount of pesticide effective; keep their equipment calibrated, clean, and in good working order; and perform regular maintenance. There are other opportunities to control pest problems that can be looked into – draining swimming pools, emptying out flower pots, etc.

Reporting and recordkeeping requirements are also included in the permit.

Water users frustrated by lack of science and input
Norm Semanko, with the Idaho Water Users Association, points out that all of these activities are already regulated under FIFRA labeling requirements. The user groups are feeling a growing frustration. There has been little fact, little science and little input going into these requirements, he says.

Water users are concerned with the permit process. In 2001-2002, there was a low priority enforcement letter that gave applicators the discretion to operate as they had been. Another EPA decision said that the farmers were exempt from the point source as defined by EPA. Then EPA said that farmers are covered as long as they’re following the label. Then the rule making in 2006 came that said this was the rule. Everyone filed a lawsuit against this rule. However, the court decided that pesticides were ruled as a pollutant and worthy of regulation.

Semanko says the EPA defended the rule up to the point where the 6th Circuit threatened a review, then EPA abandoned it. Their subsequent assertion that they have no choice but abide by the court decision is misleading.

“For them to say ‘the court told us to do this’ is disingenuous,” Semanko says. “The case was weaker than indicated. We are here because EPA chose to abandon this rule.”

Semanko also notes areas of vagueness, such as requirements for visual monitoring versus sampling, requirements for record keeping, and when a permit is required versus a letter of intent. These areas open multiple opportunities for third party lawsuits. The process leaves growers and others vulnerable. He predicts oversight from Congress, citing three bills already in Congress that would overturn the 6th Circuit decision.

It’s not just the 6 states, the federal and the tribal lands, but all the other states that are responsible for the NPDES permit development in their states. Are they going to develop a new process to comply with the court order? Are they are really going to be done by April 2011, or should the EPA go in and ask for a stay on this deadline since it’s not fair to treat 6 states different than everyone else?

The water user community also has concerns about terms like “minimizing the discharge of pollutants” that insinuate that water users have to go beyond the requirements under FIFRA. How will visual monitoring be sufficient over sampling is another question.

The definition of “waters of the United States,” is very broad. It appears that EPA wants to expand its definition beyond what is stated in the CWA.

The growers will be vulnerable to third-part lawsuits despite the fact that EPA does not intend that to happen.

Semanko predicts there will be oversight by Congress. There are already 3 bills in Congress that would overturn the decision by the 6th Circuit Court of Appeals.

Bull Trout Critical Habitat
Ted Koch, USFWS Bull Trout Coordinator, notes that the U.S. Fish & Wildlife Service (FWS) just published a final rule on critical habitat that took effect the week before the annual meeting. The FWS does not see this as a significant shift from the previous critical habitat designation. The agency is not seeking new opportunities to regulate under this rule.

“I can state pretty clearly that the FWS doesn’t see any reduction in state primacy as a result of this rule,” Koch says, acknowledging that his organization is speaking with the Bureau of Reclamation about issues brought up by water users, and that third party litigation is a current concern.

The endangered species listing program, and critical habitat listing program is all driven by litigation, Koch says. Bull trout critical habitat came up, and FWS published a final rule in 2005 reducing the amount of critical habitat by 75%, and then the agency was sued, resulting in a new rule that looks more like the 2004 rule.

Koch says the concerns brought from water users have to do with the Nez Perce agreement settlement within in the Snake River Plain adjudication process. The FWS is a part of that process and aligned with the water users and others involved in the process.

Semanko notes that this rule has been finalized, establishing “anywhere that could be habitat for bull trout,” as critical habitat.

The issues water users have with the new rule is the inclusion of reservoirs. These are the project areas for the water users, and they’re crying foul on this addition, resulting in two separate BiOps. Semanko says the environmental community is closely watching this process.

When critical habitat is identified as “bank full reservoirs,” there will be issues, Semanko says. The potential impacts to those who own water in that reservoir system are pretty staggering. In the case of specific water users, the downstream flows can result in little or no water in a given year. Koch maintains that the minimum pool provisions address the issue of “bank full reservoir” regulation.

It isn’t that the FWS issued critical habitat designations. It is the way they did it. Under the rules, the FWS needs to look at the economic impacts, and weigh the costs and benefits to the community as well as the species. Semanko says potential costs of the rule were not considered in relation to the minimal or no benefit to the species. These costs include those to recreational users of reservoirs, of increased damage by flood impacts, and costs to water users for the changes in water quality. This was a procedural failure that will favor the environmental groups. This does relate back to what’s going on with the Upper Snake River BIOps and the downstream BIOps.

Then there is the question of how we get these fish off the ESA list. Peer reviewed scientific data show that there are a lot of healthy populations in Idaho. We also have to worry about North Central Montana, and Eastern Oregon. There are three habitats in Idaho that feed into these. De-listing will depend upon the status of those other areas beyond Idaho.

If the fish were delisted, it would end all the regulatory nonsense, Semanko says. He does not see, however, how this can happen before the wolf situation has been addressed. The other solution would be to reopen the rule, and delete those segments from the critical habitat list because FWS did not do an adequate job of addressing the cost/benefit ratio.

Koch says both the Bush and the Obama administrations have agreed that the critical habitat provisions of the ESA are unworkable. He says there’s bipartisan recognition of the need to fix the Endangered Species Act.

“For 15 years, we tried to avoid listing critical habitat but got litigated into submission by environmentalists.”

Are the Feds Living Up to their Responsibilities Under ESA?

On Wednesday, committee members heard a report on endangered species in Idaho by a panel headed up by Nate Fisher, Idaho Office of Species Conservation. Fisher voiced the Governor’s frustration that while Idaho citizens have been willing to roll up their sleeves and work to save species, the Federal government has failed to live up to the provisions of the Endangered Species Act and to its commitments to Idaho citizens. We need to be concerned about what is in the best interests of Idaho.

Slick spot peppergrass is found in two counties in Idaho. Fisher outlined the history of the process starting in 2003 with the use of Candidate Conservation Agreements (CCA) which were meant to protect the plant so that listing would not be needed. The use of CCAs was so successful that USFWS withdrew the proposal to list slick spot peppergrass in 2004 which lead to additional lawsuits. The Obama administration has repudiated the agreements and proposed listing-invalidating the collaboration which led to CCAs. That’s why the governor has proposed filing a lawsuit to protect a state’s right to develop CCAs. If the feds can unilaterally say no after having agreed, this is a disincentive to citizens working with the feds to protect candidate species.

Fisher says the same scenario exists with sage grouse. Idaho has 13 local working groups involved in sage grouse restoration. In 2005, a sage grouse listing was not warranted. In 2010, a judge has remanded the issue back to the USFWS which could continue its stance that a listing is not warranted, determine that sage grouse not be listed because of its low priority, list it in its full range across 11 western states or list it in certain parts of the range. Whatever decision is made, there will be more lawsuits and less incentive to work with the Federal government on solutions that benefit the species.

Critical habitat for bull trout is again an issue with a 2010 proposal to declare 22,000 miles of streams and 533,000 acres of lakes and reservoirs as critical habitat after a decision to declare a smaller amount of critical habitat was remanded to the agency for another review and public input process. Almost half the stream miles and lake and reservoir acres are in Idaho alone.
The process to delist wolves started in 2005 and has been interrupted several times by lawsuits. In 2009, the wolf was delisted in Idaho and Montana. Hunting seasons were set despite a pending lawsuit to list the wolves as endangered. The oral arguments will take place in February, 2010. Idaho’s hunting season is still open in some areas until March 31.
Clive Strong of the Attorney General’s office also reported on the status of salmon litigation which has been on for over a decade. The Obama administration has made some changes to the 2008 biological opinion—adding an adaptive management contingent and triggers that would require a study of dam breaching. Congress would, however, still have to vote to breach any of the four Lower Snake River dams because they were authorized by Congress in the first place. A decision on the lawsuit in Judge Redden’s court could come this spring or summer.