A presentation to a joint meeting of the Idaho House of Representatives Committee on Resources and Conservation and the Idaho Senate Committee on Resources and the Environment
Wednesday, February 9, 2011, 1:30 pm
Senate and House Auditorium (WW02), Idaho Statehouse, Boise
In 1992, The Friends of the Wild Swan, the Alliance for the Wild Rockies and the Swan View Coalition petitioned the US Fish and Wildlife Service to list the bull trout as an endangered species throughout its range. While historically bull trout ranged throughout the Northwest, British Columbia and possibly in Alaska, the main population remains in Montana, Idaho, Oregon and Washington, with a small population in northern Nevada.
In 1994, the USFWS reviewed the status of the fish and determined that, while threatened, bull trout was plentiful enough to insure it was not at immediate risk of extinction.
In 1995, Governor Phil Batt appointed a steering committee and a biology commitee to make recommendations for a bull trout restoration plan. On July 1, 1996, the Governor released his plan to protect and restore Idaho's bull trout.
Between 1992 and 2010, there have been reviews by USFWS, court cases, draft rules and final rules, challenges on all sides, documents reviewed and commented upon, oral arguments before courts, critical habitat designated, more court arguments and negotiations on critical habitat.
This year's "Gold Room" workshop will examine the latest developments in this 18-year old issue. Presenters include:
- Brian Kelly, Idaho State Supervisor
- Ted Koch, Bull Trout Coordinator of the US Fish and Wildlife Service
- Nate Fisher, Administrator of the Idaho Office of Species Conservation and
- Norm Semanko, Executive Director and General Counsel of the Idaho Water Users Association.
Saturday, January 22, 2011
Tuesday, January 11, 2011
Governor emphasizes personal responsibility, projects conservative growth rate in State of the State
Governor C.L. “Butch” Otter delivered his 5th State of the State address yesterday, citing the coming legislative session as one that is likely to be thankless, within which “there will be no moral victories.” In some cases, he said, policy decisions will be made based upon on the “least bad decision.”
At the same time, the Governor expressed confidence that Idaho will emerge from the recession “leaner and stronger.” His proposed budget projects 3% growth rate in state revenue. Still, he said, most state agencies can expect to see their budgets cut by more than 2%.
The governor repeatedly called upon Idahoans to practice personal responsibility and look for opportunities to be their “brother’s keeper,” rather than rely upon the government for support.
Otter cited what he said is a failure of federal stimulus funding to create new jobs, and touted the success of private industry in doing so in Twin Falls, Pocatello, Chubbuck, Coeur d’ Alene and Boise.
He noted that Idaho has a more efficient government now than two years ago, and that our state is in better shape than others facing a budget crisis, such as Arizona, Nevada and Oregon. The Governor highlighted what he says are examples of why this is true:
- $32 million has been saved by Corrections through efforts to hold inmate population to more than 1500 below projections
- ITD Director Brian Ness’ realignment plan he says will save $1.5 million over the next two years
- The Division of Building Safety saving $415,000 a year through such steps as sharing office space, using videoconferencing and issuing more permits online
In addition, Otter said his tax compliance initiative, which added tax auditors, is bringing in more than $1 million a month to the general fund that had previously gone uncollected.
The Governor outlined some budget strategies to address what is expected to be a $340 million shortfall, including a promise to introduce legislation that would provide tax incentives to small and developing businesses, especially those focusing on new technology and innovation. He mentioned Project 60 as an example of a private/public partnership that is helping with this effort. Project 60 is an initiative designed to grow Idaho GDP by recruiting employers to Idaho.
But while our economy is growing again, employment figures aren’t. Until unemployment figures fall, he said, “the perception that we’re in a rut will continue.” Otter noted that if every one of Idaho’s 55,000 companies “paid it forward” by hiring just one additional employee each, the impact would be tremendous. What Otter called “misguided policies like healthcare mandates employers don’t know how they’re going to pay for,” have stifled employment growth.
Otter said budget cuts implemented this year for Idaho’s public schools will stay in place, with additional funding for targeted incentives. The Governor is working with Superintendent of Public Instruction Tom Luna to implement teacher performance-based incentives, and additional math and science classes, and require college entrance exams for all juniors.
Funding for higher education, however, will not fare as well. With a shout out to the JA and Kathryn Albertson Foundation and their Go On Initiative and praise for CWI as an affordable resource for students, his said his proposed budget includes more cuts for Idaho’s colleges and universities.
With regard to federal healthcare legislation, Otter said a recent ruling on a Virginia lawsuit that finds forcing people to pay for insurance unconstitutional bodes well for Idaho. He said his administration is working with our congressional delegation to fix or repeal that legislation.
Otter closed his address noting that what he called a culture of “responsible austerity” in government must expand. Repeatedly encouraging citizens to come forth with their ideas for balancing the budget, the Governor called upon Idahoans to think of this legislative session as a family council meeting, with legislators facilitating the discussion.
At the same time, the Governor expressed confidence that Idaho will emerge from the recession “leaner and stronger.” His proposed budget projects 3% growth rate in state revenue. Still, he said, most state agencies can expect to see their budgets cut by more than 2%.
The governor repeatedly called upon Idahoans to practice personal responsibility and look for opportunities to be their “brother’s keeper,” rather than rely upon the government for support.
Otter cited what he said is a failure of federal stimulus funding to create new jobs, and touted the success of private industry in doing so in Twin Falls, Pocatello, Chubbuck, Coeur d’ Alene and Boise.
He noted that Idaho has a more efficient government now than two years ago, and that our state is in better shape than others facing a budget crisis, such as Arizona, Nevada and Oregon. The Governor highlighted what he says are examples of why this is true:
- $32 million has been saved by Corrections through efforts to hold inmate population to more than 1500 below projections
- ITD Director Brian Ness’ realignment plan he says will save $1.5 million over the next two years
- The Division of Building Safety saving $415,000 a year through such steps as sharing office space, using videoconferencing and issuing more permits online
In addition, Otter said his tax compliance initiative, which added tax auditors, is bringing in more than $1 million a month to the general fund that had previously gone uncollected.
The Governor outlined some budget strategies to address what is expected to be a $340 million shortfall, including a promise to introduce legislation that would provide tax incentives to small and developing businesses, especially those focusing on new technology and innovation. He mentioned Project 60 as an example of a private/public partnership that is helping with this effort. Project 60 is an initiative designed to grow Idaho GDP by recruiting employers to Idaho.
But while our economy is growing again, employment figures aren’t. Until unemployment figures fall, he said, “the perception that we’re in a rut will continue.” Otter noted that if every one of Idaho’s 55,000 companies “paid it forward” by hiring just one additional employee each, the impact would be tremendous. What Otter called “misguided policies like healthcare mandates employers don’t know how they’re going to pay for,” have stifled employment growth.
Otter said budget cuts implemented this year for Idaho’s public schools will stay in place, with additional funding for targeted incentives. The Governor is working with Superintendent of Public Instruction Tom Luna to implement teacher performance-based incentives, and additional math and science classes, and require college entrance exams for all juniors.
Funding for higher education, however, will not fare as well. With a shout out to the JA and Kathryn Albertson Foundation and their Go On Initiative and praise for CWI as an affordable resource for students, his said his proposed budget includes more cuts for Idaho’s colleges and universities.
With regard to federal healthcare legislation, Otter said a recent ruling on a Virginia lawsuit that finds forcing people to pay for insurance unconstitutional bodes well for Idaho. He said his administration is working with our congressional delegation to fix or repeal that legislation.
Otter closed his address noting that what he called a culture of “responsible austerity” in government must expand. Repeatedly encouraging citizens to come forth with their ideas for balancing the budget, the Governor called upon Idahoans to think of this legislative session as a family council meeting, with legislators facilitating the discussion.
Monday, December 20, 2010
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.”
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.”
Friday, August 27, 2010
Practical Paths 2010: Understanding the Science and Politics of Climate Change
When: Tuesday, September 28 and Wednesday, September 29, 2010, 9 am to 5 pm
Where: Holiday Inn, Boise
Cost: $65 for full day registration, $35 for either Tuesday or Wednesday, by 9/23/10
When it comes to the issue of catastrophic anthropogenic climate change, some assert that there is consensus among scientists and the debate is over. Others disagree. Regardless of which side of the debate one is on, most agree that there are likely to be significant political, environmental, economic and life style consequences of any major policy decision on this issue.
The Idaho Council on Industry and Environment and the Idaho Office of the Northwest Power & Conservation Council are sponsoring Practical Paths: Understanding the Science and Politics of Climate Change workshop at the Airport Holiday Inn in Boise, Idaho, Tuesday, September 28 and Wednesday, September 29.
The workshop will examine the scientific method, and what it tells us (or fails to tell us) about climate change. After over two decades of research, why are the various camps still questioning each other? What role does computer modeling play, how accurate is the data, and how do the resulting forecasts and uncertainty around them translate into actionable conclusions?
Our speakers will also outline and examine current legislative and regulatory efforts to impact climate change, and their relative success compared to other public policy options.
For a full, draft agenda and online registration, visit http://www.icie.org/.
Sponsorship and advertising opportunities are available. Contact ICIE Executive Director, Pat Barclay at patbarclay@icie.org, or 208-336-8508.
Where: Holiday Inn, Boise
Cost: $65 for full day registration, $35 for either Tuesday or Wednesday, by 9/23/10
When it comes to the issue of catastrophic anthropogenic climate change, some assert that there is consensus among scientists and the debate is over. Others disagree. Regardless of which side of the debate one is on, most agree that there are likely to be significant political, environmental, economic and life style consequences of any major policy decision on this issue.
The Idaho Council on Industry and Environment and the Idaho Office of the Northwest Power & Conservation Council are sponsoring Practical Paths: Understanding the Science and Politics of Climate Change workshop at the Airport Holiday Inn in Boise, Idaho, Tuesday, September 28 and Wednesday, September 29.
The workshop will examine the scientific method, and what it tells us (or fails to tell us) about climate change. After over two decades of research, why are the various camps still questioning each other? What role does computer modeling play, how accurate is the data, and how do the resulting forecasts and uncertainty around them translate into actionable conclusions?
Our speakers will also outline and examine current legislative and regulatory efforts to impact climate change, and their relative success compared to other public policy options.
For a full, draft agenda and online registration, visit http://www.icie.org/.
Sponsorship and advertising opportunities are available. Contact ICIE Executive Director, Pat Barclay at patbarclay@icie.org, or 208-336-8508.
Monday, June 28, 2010
EPA presentation on draft permit for pesticide discharges met with spirited comments from water users, other stakeholders.
In a June 16, 2010, meeting in Boise, representatives from the US EPA presented information clarifying a draft NPDES General Permit for pesticide discharges that has been submitted for public comment.
While the meeting was presented as an opportunity to ask for clarification and pose questions in order to have a better understanding of the permit, EPA representatives noted that testimony on the permit would not be taken at the time. Testimony on the draft permit must be made in writing via hand delivery, US mail or online. The public comment on the draft permit extends through July 19.
Allison Wiedeman, Chief of the Rural Branch, Water Permits Division, noted that drafting this permit has been one of the most challenging issues in her 30 years with the EPA. The U.S. 6th Circuit Court of Appeals overturned EPA’s 2006 rule that said pesticides were not pollutants under the Clean Water Act and their application did not require NPDES permits. Rather than appeal the decision, EPA asked the court for time to develop a general NPDES permit.
Wiedeman says her department has talked with hundreds of groups including growers and applicators, manufacturers, NRCS, USDA and the state regulatory authorities as part of this process. This draft permit is, she says, the best shot at a balance between environmental protection and feasibility and practicality.
Presentation slides are available from the website: http://www.regulations.gov/, along with the 112-page fact sheet and FAQ.
Presentation Highlights:
The Sixth Circuit Court of Appeals determined that EPA’s interpretation of the Clean Water Act that said pesticides are not pollutants is wrong.
At the time of this decision, the EPA asked the court for two years to develop a general permit for which industry could apply. After the public comment period, the permit will be finalized in December. EPA has until April 9, 2011 for implementation. The 2006 regulation that determines that permits are not necessary is still in effect today, but only until next spring.
The permit EPA has proposed applies only to the 6 states that do not have primacy—Alaska, Idaho, New Mexico, Oklahoma, New Hampshire and Massachusetts. Forty-four states have their own state process for permitting. These states have some flexibility in developing their own permits, as long as they support the same kind of protection or are more stringent than the EPA’s permit.
EPA is proposing a structure whereby a general permit would be necessary if an entity is determined to be a point source, and is discharging into Waters of the US. Individual operators would apply for coverage under the general permit without going through their own, separate public process. EPA representatives hope this will cut down on the number of individual permit applications.
For the purpose of this draft, pesticide uses covered under the permit include:
- Mosquito and Other Flying Insect Control
- Aquatic Weed and Algae Control
- Aquatic Nuisance Animal Control
- Forest Canopy Pest Control
Some pesticide uses are not included:
- Terrestrial applications to control pests on agricultural crops or forest floors
- Off target spray drift
Activities exempt from permitting under the Clean Water Act:
- Irrigation Return Flow
- Agricultural Storm Water Runoff
The application of pesticides for control of terrestrial pests associated with crop production is not covered under EPA’s NPDES PGP.
In addition, discharges of pesticides to water bodies that are already considered impaired for the specific pesticide in question are not covered under the permit. It may be that in that instance, an operator would need to apply for an individual permit. EPA officials say they don’t anticipate this will happen very often.
Operators under this umbrella permit would be required to submit Notices of Intent (NOIs) to discharge pesticides.
Operators would be required to prepare plans for monitoring pesticide discharge. Monitoring should include visual monitoring for adverse incidents during and after application and monitoring of management practices.
Operators would also be required to provide:
- Annual documentation of pesticide application activities, and
- Adverse Incident reporting to help EPA identify possible permit violations where the permit may need modification to further protect water quality.
Questions and Comments reveal anxiety over costs, red tape, and lawsuits
Some audience members were undeterred by the fact that official public statements would not be recorded for consideration. Comments directed at the panel were prolific and largely critical of the draft EPA permit.
Norm Semanko with the Idaho Water Users Association asked why the EPA didn’t seek review of this court decision. In his mind, the EPA didn’t exhaust all avenues of appeal. EPA representatives noted that their legal counsel advised them that such efforts had little chance of success.
Scott Campbell, a water user attorney vented his frustration to the panel.
“This rule not only angers me to the depth of my soul, but it saddens me that people are being exposed to this kind of red tape and exposure to law suits and giving environmental terrorist ammunition to anyone who wants to file a notice of intent,” he said.
Other respondents commented that the record keeping and reporting requirements placed an undue burden on operators.
Roger Batt of the Idaho Weed Awareness Campaign asked about the relationship between the permit and the standards as outlined by FIFRA, which covers the correct application of pesticides. EPA representatives noted that the idea is to minimize the discharge of pollutants, but Batt noted that this can subject someone to the threat of third-party lawsuits.
Another audience member asked the panel if they had considered homeowners, who often overuse pesticides and other products on their lawns and gardens.
“The poor people who are feeding over 90 percent of the population are unduly burdened,” Campbell said of the impact of this permit to the agricultural industry.
Comments may be submitted online at http://www.regulations.gov/. Click the “submit a comment” link near the top of the page. Enter the key word: DPA-HQ-OW-2010-0257. Click the orange “search” link which will pull up one item: The PGP docket. Click the blue “submit a comment” link and complete the form provided and upload your file. For more information, visit: www.epa.gov/npdes/pesticides.
While the meeting was presented as an opportunity to ask for clarification and pose questions in order to have a better understanding of the permit, EPA representatives noted that testimony on the permit would not be taken at the time. Testimony on the draft permit must be made in writing via hand delivery, US mail or online. The public comment on the draft permit extends through July 19.
Allison Wiedeman, Chief of the Rural Branch, Water Permits Division, noted that drafting this permit has been one of the most challenging issues in her 30 years with the EPA. The U.S. 6th Circuit Court of Appeals overturned EPA’s 2006 rule that said pesticides were not pollutants under the Clean Water Act and their application did not require NPDES permits. Rather than appeal the decision, EPA asked the court for time to develop a general NPDES permit.
Wiedeman says her department has talked with hundreds of groups including growers and applicators, manufacturers, NRCS, USDA and the state regulatory authorities as part of this process. This draft permit is, she says, the best shot at a balance between environmental protection and feasibility and practicality.
Presentation slides are available from the website: http://www.regulations.gov/, along with the 112-page fact sheet and FAQ.
Presentation Highlights:
The Sixth Circuit Court of Appeals determined that EPA’s interpretation of the Clean Water Act that said pesticides are not pollutants is wrong.
At the time of this decision, the EPA asked the court for two years to develop a general permit for which industry could apply. After the public comment period, the permit will be finalized in December. EPA has until April 9, 2011 for implementation. The 2006 regulation that determines that permits are not necessary is still in effect today, but only until next spring.
The permit EPA has proposed applies only to the 6 states that do not have primacy—Alaska, Idaho, New Mexico, Oklahoma, New Hampshire and Massachusetts. Forty-four states have their own state process for permitting. These states have some flexibility in developing their own permits, as long as they support the same kind of protection or are more stringent than the EPA’s permit.
EPA is proposing a structure whereby a general permit would be necessary if an entity is determined to be a point source, and is discharging into Waters of the US. Individual operators would apply for coverage under the general permit without going through their own, separate public process. EPA representatives hope this will cut down on the number of individual permit applications.
For the purpose of this draft, pesticide uses covered under the permit include:
- Mosquito and Other Flying Insect Control
- Aquatic Weed and Algae Control
- Aquatic Nuisance Animal Control
- Forest Canopy Pest Control
Some pesticide uses are not included:
- Terrestrial applications to control pests on agricultural crops or forest floors
- Off target spray drift
Activities exempt from permitting under the Clean Water Act:
- Irrigation Return Flow
- Agricultural Storm Water Runoff
The application of pesticides for control of terrestrial pests associated with crop production is not covered under EPA’s NPDES PGP.
In addition, discharges of pesticides to water bodies that are already considered impaired for the specific pesticide in question are not covered under the permit. It may be that in that instance, an operator would need to apply for an individual permit. EPA officials say they don’t anticipate this will happen very often.
Operators under this umbrella permit would be required to submit Notices of Intent (NOIs) to discharge pesticides.
Operators would be required to prepare plans for monitoring pesticide discharge. Monitoring should include visual monitoring for adverse incidents during and after application and monitoring of management practices.
Operators would also be required to provide:
- Annual documentation of pesticide application activities, and
- Adverse Incident reporting to help EPA identify possible permit violations where the permit may need modification to further protect water quality.
Questions and Comments reveal anxiety over costs, red tape, and lawsuits
Some audience members were undeterred by the fact that official public statements would not be recorded for consideration. Comments directed at the panel were prolific and largely critical of the draft EPA permit.
Norm Semanko with the Idaho Water Users Association asked why the EPA didn’t seek review of this court decision. In his mind, the EPA didn’t exhaust all avenues of appeal. EPA representatives noted that their legal counsel advised them that such efforts had little chance of success.
Scott Campbell, a water user attorney vented his frustration to the panel.
“This rule not only angers me to the depth of my soul, but it saddens me that people are being exposed to this kind of red tape and exposure to law suits and giving environmental terrorist ammunition to anyone who wants to file a notice of intent,” he said.
Other respondents commented that the record keeping and reporting requirements placed an undue burden on operators.
Roger Batt of the Idaho Weed Awareness Campaign asked about the relationship between the permit and the standards as outlined by FIFRA, which covers the correct application of pesticides. EPA representatives noted that the idea is to minimize the discharge of pollutants, but Batt noted that this can subject someone to the threat of third-party lawsuits.
Another audience member asked the panel if they had considered homeowners, who often overuse pesticides and other products on their lawns and gardens.
“The poor people who are feeding over 90 percent of the population are unduly burdened,” Campbell said of the impact of this permit to the agricultural industry.
Comments may be submitted online at http://www.regulations.gov/. Click the “submit a comment” link near the top of the page. Enter the key word: DPA-HQ-OW-2010-0257. Click the orange “search” link which will pull up one item: The PGP docket. Click the blue “submit a comment” link and complete the form provided and upload your file. For more information, visit: www.epa.gov/npdes/pesticides.
Friday, April 23, 2010
Wednesday, April 7, 2010
Newly appointed EPA Administrator gives overview of environmental issues
Dennis McLerran was appointed Administrator for EPA’s Region 10 in January. He spoke to the Idaho Environmental Forum on Tuesday, April 6, 2010.
McLerran noted that he has experience working in local government and has worked on air quality issues in a large urban area, Seattle, and in the smaller community of Port Townsend. He has been on the other side of the fence in private practice as an attorney. He has family ties to Mackay, Idaho, as well.
He voiced his admiration for EPA Administrator Lisa Jackson.
McLerran outlined the Obama administration’s priorities for the Environmental Protection Agency:
· Climate change: EPA announced its endangerment finding regarding carbon as a pollutant in the absence of any action by Congress to control carbon emissions. The agency put together tailpipe rules for automobiles using a collaboration that included the auto industry and the State of California. The rules will go into effect in January, 2011.
In addition, EPA is looking at regulating large sources of CO2 emissions first with a tailoring rule in January 2011. This will include power plants and very large emitters.
What Congress does in the next year or two will have an impact on what EPA will pursue.
· Air quality: EPA will be setting tighter standards for fine particulate like that found in wood smoke or diesel. New ozone standards will be coming out in late spring or early summer. It is possible that they will be set at .06 or .065 which would mean that the Treasure Valley will be classified as a non-attainment area. He did mention the state’s auto emissions programs for the area. There could also be new standards for sulfur dioxide and nitrogen oxides along freeways.
· Mercury: Idaho has been ground zero for impacts from surrounding states. He commended us for the work we are doing on mercury emissions. DEQ is collecting elemental mercury and EPA has funded mercury contamination cleanups in the last three years. There is still a ways to go in dealing with mercury, he said.
· Safety of chemicals: Work needs to be done to rewrite the toxic substances statute.
· Superfund communities: there is still cleaning up to be done. For Idaho, that means the Silver Valley, a massive superfund site on which a great deal of time, energy and dollars has been spent. Now blood levels in children are down to the national average rather than being way above it. This is still controversial but EPA is moving ahead.
· Protecting American waters: We need to make more progress on this, especially with nutrient loads and stormwater runoff. We need to do more than the traditional methods. We should be looking at trading schemes in Idaho and Washington. Nutrient problems in streams are a big issue. We need to develop innovative programs to deal with that. McLerran encouraged the group to look at innovation to improve water quality in the Boise River.
· Environmental justice: This is on Lisa Jackson’s list of priorities. EPA will be working with the tribes and low income populations to understand the needs of low income communities. The agency will be reaching out to these communities to help improve children’s health.
McLerran stressed that it is not EPA’s job to punish states for the economic crisis. The agency would like to figure out a way to make progress during these tough times. Water quality monitoring in Idaho has been suspended because of budget cuts at DEQ, but that cannot go on indefinitely. Perhaps a partnering program with EPA and the use of loaned employees might be a solution.
HUD, DoT and EPA are trying a partnership to drive highway and housing funds in ways that mutually re-enforce the missions of the three agencies.
During questioning, McLerran discussed the cement plant in eastern Oregon, saying that Oregon’s plan may not do enough to lower mercury emissions.
One audience member cited Industrial livestock (CAFO) operations as one of the biggest environmental problems. She said that antibiotics and endocrine disrupters are showing up in drinking water, and that sampling shows that 22% of homes have nitrates above safe drinking water levels. This, she says, is driving people to have to buy drinking water at Wal-Mart.
When asked if carbon trading in going to be included in the analysis of water quality issues. McLerran responded that EPA was in the formative stages on CO2 issues. Carbon trading is not on the radar screen right now. If Congress acts in that area, things would change. He is hoping that Congress will step in.
NPDES permitting, wastewater treatment and phosphate issues are among priorities in Idaho. EPA will be the point on NPDES permits. That is a priority for the region.
Another person asked about the proposed MACT standard for wood-fired boilers which would discourage the use woody biomass. McLerran responded that we would have to find a balance.
McLerran encouraged people to submit additional comments. With the increase in CAFÉ standards for automobiles, any insights in consumer innovative technologies would be welcome. These could include aerodynamic improvements, better fuel combustion, turbo charging and plug-in hybrids.
McLerran noted that he has experience working in local government and has worked on air quality issues in a large urban area, Seattle, and in the smaller community of Port Townsend. He has been on the other side of the fence in private practice as an attorney. He has family ties to Mackay, Idaho, as well.
He voiced his admiration for EPA Administrator Lisa Jackson.
McLerran outlined the Obama administration’s priorities for the Environmental Protection Agency:
· Climate change: EPA announced its endangerment finding regarding carbon as a pollutant in the absence of any action by Congress to control carbon emissions. The agency put together tailpipe rules for automobiles using a collaboration that included the auto industry and the State of California. The rules will go into effect in January, 2011.
In addition, EPA is looking at regulating large sources of CO2 emissions first with a tailoring rule in January 2011. This will include power plants and very large emitters.
What Congress does in the next year or two will have an impact on what EPA will pursue.
· Air quality: EPA will be setting tighter standards for fine particulate like that found in wood smoke or diesel. New ozone standards will be coming out in late spring or early summer. It is possible that they will be set at .06 or .065 which would mean that the Treasure Valley will be classified as a non-attainment area. He did mention the state’s auto emissions programs for the area. There could also be new standards for sulfur dioxide and nitrogen oxides along freeways.
· Mercury: Idaho has been ground zero for impacts from surrounding states. He commended us for the work we are doing on mercury emissions. DEQ is collecting elemental mercury and EPA has funded mercury contamination cleanups in the last three years. There is still a ways to go in dealing with mercury, he said.
· Safety of chemicals: Work needs to be done to rewrite the toxic substances statute.
· Superfund communities: there is still cleaning up to be done. For Idaho, that means the Silver Valley, a massive superfund site on which a great deal of time, energy and dollars has been spent. Now blood levels in children are down to the national average rather than being way above it. This is still controversial but EPA is moving ahead.
· Protecting American waters: We need to make more progress on this, especially with nutrient loads and stormwater runoff. We need to do more than the traditional methods. We should be looking at trading schemes in Idaho and Washington. Nutrient problems in streams are a big issue. We need to develop innovative programs to deal with that. McLerran encouraged the group to look at innovation to improve water quality in the Boise River.
· Environmental justice: This is on Lisa Jackson’s list of priorities. EPA will be working with the tribes and low income populations to understand the needs of low income communities. The agency will be reaching out to these communities to help improve children’s health.
McLerran stressed that it is not EPA’s job to punish states for the economic crisis. The agency would like to figure out a way to make progress during these tough times. Water quality monitoring in Idaho has been suspended because of budget cuts at DEQ, but that cannot go on indefinitely. Perhaps a partnering program with EPA and the use of loaned employees might be a solution.
HUD, DoT and EPA are trying a partnership to drive highway and housing funds in ways that mutually re-enforce the missions of the three agencies.
During questioning, McLerran discussed the cement plant in eastern Oregon, saying that Oregon’s plan may not do enough to lower mercury emissions.
One audience member cited Industrial livestock (CAFO) operations as one of the biggest environmental problems. She said that antibiotics and endocrine disrupters are showing up in drinking water, and that sampling shows that 22% of homes have nitrates above safe drinking water levels. This, she says, is driving people to have to buy drinking water at Wal-Mart.
When asked if carbon trading in going to be included in the analysis of water quality issues. McLerran responded that EPA was in the formative stages on CO2 issues. Carbon trading is not on the radar screen right now. If Congress acts in that area, things would change. He is hoping that Congress will step in.
NPDES permitting, wastewater treatment and phosphate issues are among priorities in Idaho. EPA will be the point on NPDES permits. That is a priority for the region.
Another person asked about the proposed MACT standard for wood-fired boilers which would discourage the use woody biomass. McLerran responded that we would have to find a balance.
McLerran encouraged people to submit additional comments. With the increase in CAFÉ standards for automobiles, any insights in consumer innovative technologies would be welcome. These could include aerodynamic improvements, better fuel combustion, turbo charging and plug-in hybrids.
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