New Complaint Charges NMFS with Allowing Overfishing of Key Forage Species

A complaint filed this week in the Northern District of California by Oceana charges the National Marine Fisheries Service (NMFS) with failing to protect key species, such as Pacific sardine and anchovy, that serve as the base of the ocean food web. The lawsuit claims NMFS fails to prevent overfishing, fails to account for the species’ ecological role when setting catch limits, and fails to adequately analyze the implications of their actions. A copy of the complaint may be found here.

“America’s fisheries laws mandate protection for the species that form the base of the ocean food web,” said Whit Sheard, Pacific Counsel and Senior Advisor for Oceana. “When the government fails in this task, the rest of the ocean ecosystem, as well as the industries that depend upon it, pay the long term costs.”

The lawsuit seeks to compel NMFS to do the following when managing forage species in the Coastal Pelagic Species Fishery Management Plan:

• Set an “optimum yield” catch level that includes leaving enough forage fish as prey for the other marine life that rely upon these important components of the food web.
• Set required limits and reference points to prevent overfishing.
• Use the best science in determining catch levels and overfishing limits.
• Consider the role of forage fish in the ecosystem and the impacts of removing large amounts of forage fish as part of the required environmental analysis.

Central to the complaint is Amendment 13 to the Coastal Pelagic Species Fishery Management Plan. Adopted by NMFS on November 14, 2011, the stated intent of Amendment 13 is to ensure that the management plan is consistent with recent NMFS guidelines, which describe fishery management approaches to meet the objectives of National Standard 1 (NS1) of section 301 of the Magnuson-Stevens Fishery Conservation and Management Act (MSA). National Standard 1 states “[c]onservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield (OY) from each fishery for the U.S. fishing industry.” The complaint alleges that Amendment 13 violates the MSA in several respects, and contends that NMFS violated the National Environmental Policy Act (NEPA) by, among other things, failing to prepare a full environmental impact statement (EIS). Oceana contends that NMFS's actions are arbitrary and capricious, in violation of the Administrative Procedures Act. Oceana seeks an order vacating and remanding Amendment 13 and requiring the preparation of an EIS.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Court Overrules DFG's Demurrer to Complaint Challenging Lake and Streambed Alteration Program

The Siskiyou County Superior Court recently overruled a demurrer filed by the California Department of Fish and Game (DFG) in a case involving the interpretation of Fish and Game Code Section 1602. The case, filed by the Siskiyou County Farm Bureau (SCFB), seeks a judicial declaration that Section 1602 does not apply to the mere "act of extracting" water from a river or stream pursuant to a valid water right. A copy of the court's opinion may be found here.

In broad terms, Section 1602 requires than an entity notify DFG of any proposed activity that may substantially modify a river, stream, or lake. If DFG determines that the activity may substantially adversely affect fish and wildlife resources, a "Lake or Streambed Alteration Agreement" must be prepared. The agreement includes reasonable conditions necessary to protect those resources and must comply with the California Environmental Quality Act (CEQA). Additional information regarding DFG's lake and streambed alteration program may be found here.

According to the complaint, SCFB members have valid rights to extract water from the Scott and Shasta River watersheds. It charges that DFG has developed a "new and troubling application" of its lake and streambed alteration program, such that extracting water from rivers, streams, and lakes requires compliance with the program, irrespective of whether such extraction causes an alteration. SCFB contends that Section 1602 and related provisions "were never intended to apply to the mere act of extracting water in accordance with a valid water right, but were instead intended to apply only to watercourse-altering activities."

DFG demurred to SCFB's complaint. In overruling the demurrer, the court addressed DFG's chief arguments. First, DFG contended that the complaint is uncertain regarding the existence and nature of an actual controversy between the parties. The court dispensed with this contention, finding the allegations adequately clear and consistent, and sufficient to put DFG on notice of the claims against it. Second, the court rejected DFG's argument that the complaint fails to state an actual and present controversy, given the complaint's adequate description of the existence of a dispute. Third, DFG argued that the complaint is not ripe because it contains "myriad uncertainties and hypotheticals" and because there is no showing that any SCFB member is under imminent threat of prosecution or harm. The Court found that sufficient facts were pled by SCFB, which facts were effectively admitted by DFG through its own documents filed in a request for judicial notice, that a threat currently exists to the SCFB members "if they continue their established practice of using water from streams and rivers" before complying with section 1602. Finally, the court rejected DFG's laches argument, for the reasons set forth in SCFB's opposition to the demurrer.

The Court's decision on the demurrer clears the way for a judicial determination on the merits. DFG must now respond to the complaint within 30 days of the court's December 8 ruling.

For more information regarding this matter, please contact Danielle Teeters or Eric Adair, or the KMTG attorney with whom you normally consult.

House Passes Bill to Prevent EPA from Regulating Farm Dust

Last Thursday, the House passed a bill that would prevent the Environmental Protection Agency ("EPA") from regulating farm dust. H.R. 1633, the "Farm Dust Regulation Prevention Act of 2011," would prohibit the EPA from  proposing, finalizing, implementing, or enforcing any regulation revising the national primary or secondary ambient air quality standard applicable to particulate matter with an aerodynamic diameter greater than 2.5 micrometers under the Clean Air Act ("CAA") for one year.

Bill co-sponsor Representative Jeff Denham, whose district covers parts of Fresno, Madera, Mariposa, Tuolumne, and Stanislaus counties, commented:

The Administration’s excessive regulations have hindered business growth and job creation for too long. I co-sponsored this legislation because it will eliminate regulatory uncertainty and provide relief for Valley small businesses and farmers. Farmers, ranchers, and Valley businesses are already subject to costly federal and state requirements to control dust. This legislation would protect rural businesses from additional, excessive red tape in order to increase certainty among our job creators.

Opponents argued that the bill is unnecessary, given the EPA's stated position that it does not currently intend to regulate coarse particulate matter. In testimony on the bill, an EPA official explained:

EPA Administrator Jackson committed in an October 14, 2011 letter that EPA is prepared to propose to keep the PM10 national ambient air quality standard (NAAQS) as it is, with no change.  This existing standard has been in effect since 1987.  I am hopeful that this announcement ends the myth that the Agency has plans to tighten regulation of “farm dust.”

Despite such assurances, the bill passed 268-150, including unanimous Republican support and the votes of 33 Democrats. But it is not expected to pass in the Senate, and would likely face a Presidential veto in any event. In a statement on the bill, the Obama Administration stated:

The bill therefore, goes far beyond its stated intent of prohibiting the Environmental Protection Agency (EPA) from tightening national standards for coarse particles, which the Administration has repeatedly explained that it has no intention of doing. This ambiguously written bill would create high levels of regulatory uncertainty regarding emission control requirements that have been in place for years.

More information regarding this legislation may be found here. Materials from a hearing before the House Energy and Commerce Committee, including a video of the hearing and witness statements, may be found here.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Environmental Groups Challenge BLM Oil and Gas Leases

Yesterday, the Center for Biological Diversity ("CBD") and the Sierra Club filed a federal action in the Northern District of California challenging the Bureau of Land Management's ("BLM") leasing of property in Monterey and Fresno counties for oil and gas development. A copy of the action may be found here.

The suit arises from BLM's September 14, 2011, lease of three oil and gas parcels totaling approximately 2,500 acres to Vintage Production California, LLC, Lone Tree Energy & Associates, LLC, and a private individual. In the suit, CBD and the Sierra Club allege that BLM's decision to lease the land violates the National Environmental Policy Act ("NEPA") and the Mineral Leasing Act of 1920. Specifically, the suit contends that "BLM relied upon an environmental assessment ('EA') prepared pursuant to NEPA that failed to analyze many of the significant environmental effects of the oil and gas development that could occur upon development of the leases," citing concerns for endangered and sensitive species in the area. The suit also warns of potential impacts to water quality and other resources that allegedly result from hydraulic fracturing, or “fracking,” a method of oil and gas extraction that may be employed in the leased areas. It also complains that oil and gas activity on the property may result in spills and habitat contamination and emissions of methane gas. Ultimately, CBD and the Sierra Club seek to overturn the leases.

The central legal defect alleged by CBD and the Sierra Club centers on BLM's decision to prepare an EA and a Finding of No Significant Impact, or "FONSI," rather than prepare a full Environmental Impact Statement ("EIS"). The environmental groups filed a protest to BLM's decision to proceed with the oil and gas lease sale without an EIS. BLM dismissed their protest and proceeded with the sale, leading to yesterday's filing. Additional information may be found on BLM's website for its Hollister office.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

EPA Releases Findings of Ground Water Investigation in Pavillion, Wyoming

The Environmental Protection Agency ("EPA") recently released draft findings of a ground water investigation conducted in Pavillion, Wyoming. The report is available here. According to an EPA release, "[t]he draft report indicates that ground water in the aquifer contains compounds likely associated with gas production practices, including hydraulic fracturing."

Commenting on the investigation, Jim Martin, EPA's regional administrator in Denver, said:

EPA’s highest priority remains ensuring that Pavillion residents have access to safe drinking water. We will continue to work cooperatively with the State, Tribes, Encana and the community to secure long-term drinking water solutions. We look forward to having these findings in the draft report informed by a transparent and public review process. In consultation with the Tribes, EPA will also work with the State on additional investigation of the Pavillion field.

Some have hailed the draft report as evidence of the potential ground water impacts of fracking generally. Steve Jones of the Wyoming Outdoor Council noted that "[t]his is an important first indication there are potential problems with fracking that can impact domestic water wells. It's I think a clarion call to industry to make sure they take a great deal of care in their drilling practices." But the EPA has been careful not to generalize the results of its investigation, stating that its draft findings "are specific to Pavillion, where the fracturing is taking place in and below the drinking water aquifer and in close proximity to drinking water wells – production conditions different from those in many other areas of the country." And in an interview (video available here), EPA head Lisa P. Jackson confirmed that the particular formation in Wyoming may have contributed to the detection of chemicals in the ground water.

Encana, the company targeted by EPA's investigation, issued a statement that "[t]he EPA's draft report and current view is based on a possibility, not a conclusion built upon peer-reviewed science. The cause of the compounds in the water remains inconclusive. . . . Encana remains committed to seeing that the investigations into determining the source of the compounds found in the Pavillion groundwater are backed by sound science that is reviewed by independent peers." In a further release issued December 12, Encana identified a series of claimed discrepancies in the EPA's data and analysis, commenting that the EPA's "preliminary conclusions do not stand up to the rigor of a non-partisan, scientific-based review and that is of paramount importance to every natural gas producing community, every citizen and business that relies on natural gas and every industry worker."

The draft report will be available for a 45-day public comment period beginning December 14, following which a panel of independent scientists will subject the report to a 30-day peer review process. More information regarding EPA's investigation may be found on its website.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Related news coverage and commentary:

• EPA: Fracking may cause groundwater pollution
• Bad water found at fracking site
• Six Questions for EPA on Pavillion

EPA Announces Urban Waters Small Grants

The Environmental Protection Agency (EPA) recently announced that it will provide funding for projects across the country to protect Americans’ health and help restore urban waters by improving water quality and supporting community revitalization. The funding is part of EPA’s Urban Waters program, which supports communities in their efforts to access, improve, and benefit from their urban waters and the surrounding land.

According to the EPA, the purpose of the small grants is to fund projects, training, and research that will advance restoration of urban waters by improving water quality and community access. EPA expects to award $1.8 million in grants for projects across the country. Examples of projects eligible for funding may include:

• Education and training for water quality improvement or green infrastructure jobs
• Public education about ways to reduce water pollution
• Local water quality monitoring programs
• Engaging diverse stakeholders to develop local watershed plans
• Innovative projects that promote local water quality and community revitalization goals

Funding proposals must be received by EPA by January 23, 2012. The applications may be found here. Answer to frequently asked questions, such as applicant eligibility, project eligibility, and timing may be found here. EPA will hold two web-based seminars on this funding opportunity on December 14, 2011, and January 5, 2012. Registration for the seminars is available here. EPA expects to award the grants in summer 2012.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Congressional ESA Oversight Hearing Materials Available Online

As we recently reported, the House Natural Resources Committee conducted a full committee oversight hearing today, December 6, 2011, on the Endangered Species Act (“ESA”), specifically looking at the impacts of ESA litigation on the economy and species recovery.

In a release issued by the Committee, Chairman Doc Hastings said:

The purpose of the ESA is to recover endangered species – yet this is where the current law is failing – and failing badly. Of the species listed under the ESA in the past 38 years, only 20 have been declared recovered. That’s a 1 percent recovery rate. I firmly believe that we can do better. In my opinion, one of the greatest obstacles to the success of the ESA is the way in which it has become a tool for excessive litigation. Instead of focusing on recovering endangered species, there are groups that use the ESA as a way to bring lawsuits against the government and block job-creating projects. By strengthening and updating the Endangered Species Act, improvements can be made so it’s no longer abused through lawsuits and instead can remain focused on fulfilling its true and original goal of species recovery.

The Committee heard testimony from eight witnesses, listed below with their affiliations and links to their written testimony:

• Dan Ashe, U.S. Fish and Wildlife Service (testimony)
• Eric Schwaab, National Oceanic and Atmospheric Administration (testimony)
• Karen Budd-Falen, Budd-Falen Law Offices (testimony)
• Doug Miller, Public Utility District #2 of Pacific County (testimony)
• Kieran Suckling, Center for Biological Diversity (testimony)
• Jay Tuchton, WildEarth Guardians (testimony)
• John Leshy, UC-Hastings College of Law (testimony)
• Brandon Middleton, Pacific Legal Foundation (testimony)

A video of the hearing may be viewed here.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Related stories and media coverage:

• Congressional Committee Will Hold Oversight Hearing On Endangered Species Act Litigation
• The Endangered Species Act: Reviewing the Nexus of Science and Policy
• Court Denies "Fall X2" Motions and Finds Agency Bad Faith
• Court Finds 2009 Salmonid Biological Opinion Arbitrary and Capricious and Remands to National Marine Fisheries Services
• House panel probes workings of ESA

Congressional Committee Will Hold Oversight Hearing On Endangered Species Act Litigation

On Tuesday, December 6, at 10:00 am EST, the House Natural Resources Committee will hold a full committee oversight hearing on the Endangered Species Act (“ESA”), specifically looking at the impacts of ESA litigation on the economy and species recovery.  The oversight hearing, entitled “The Endangered Species Act:  How Litigation is Costing Jobs and Impeding True Recovery Efforts,” promises to be the first of many hearings that the Committee will hold to examine the efficacy of the ESA and to consider how the Act could be improved.

In a release issued by the Committee, Chairman Doc Hastings said:

It has been over two decades since the ESA was last reauthorized and it’s the responsibility of Congress to undertake a thoughtful analysis of the law to see what improvements could be made to ensure that it works for both species and people. The goal of the ESA is to conserve key domestic species, yet it’s being used by special interest groups to file lawsuits and drain resources away from real recovery efforts. This hearing will specifically look at the impacts of ESA litigation on jobs, our economy and species recovery.

The hearing is open to the public and will be broadcast by live video stream.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Related stories:

• The Endangered Species Act: Reviewing the Nexus of Science and Policy
• Court Denies "Fall X2" Motions and Finds Agency Bad Faith
• Court Finds 2009 Salmonid Biological Opinion Arbitrary and Capricious and Remands to National Marine Fisheries Services

DWR and EPA Release "Climate Change Handbook for Regional Water Planning"

Today, California's Department of Water Resources (DWR) and the U.S. Environmental Protection Agency (EPA) announced the release of "Climate Change Handbook for Regional Water Planning", a publication designed to guide water resource managers and planners as they adapt and navigate the complexities of climate change.

In announcing the release of the handbook, EPA Region 9 Administrator Jared Blumenfeld said:

Climate change will directly affect water supplies and how they are managed. With this guide, EPA is giving water agencies the practical tools they need to effectively manage this precious resource.

DWR Director Mark Cowin added:

Our scientists, engineers and planners are on the cutting edge of analyzing and preparing for the effects of climate change on our water supply. For example, climate change is considered in Integrated Regional Water Management (IRWM), one of our primary strategies for improving water management at the local, regional, and state level.

IRWM is a collaborative effort to manage all aspects of water resources in a region. IRWM attempts to address the issues and differing perspectives of all the entities involved through mutually beneficial solutions. Since 2002, California voters have approved $1.8 billion for IRWM planning and project implementation. The handbook uses the IRWM planning framework as a model into which analysis of climate change impacts and potential adaptation measures can be integrated.

The handbook also provides a checklist for identifying and prioritizing the vulnerability of local watersheds. The checklist includes questions about water demand and supply, wildlife and habitat, sea level rise, critical infrastructure, and hydropower.

The handbook includes:

• Advice on how water resource managers can take climate change into consideration
• A summary of climate change science with links to resources and tools
• Tools for evaluating greenhouse gas emissions for a project
• Tools for measuring regional climate change impacts
• Case studies of communities already incorporating climate change into water resource management

The handbook may be found here.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.