Archive for the ‘Fish & Wildlife Service’ Category

FEMA’s Proposed Changes to the National Flood Insurance Program

Photo by kevin dooley. Some rights reserved.

Earlier this month, law firm Van Ness Feldman published an Alert detailing FEMA’s plans for revising the National Flood Insurance Program (NFIP).

The NFIP was developed in the late 1960s in response to a few seasons of nasty natural disasters. It is a federal program that encourages landowners in participating communities to adopt and enforce FEMA approved floodplain management ordinances. Those communities are then eligible to purchase flood insurance through the program, which is designed to provide a financial alternative to relying on emergency disaster relief. According to FEMA, “the costs associated with flood damage are reduced by nearly $1.7 billion a year” through the program.

Not everyone has been happy with the NFIP, of course. According to Van Ness Feldman, ever since its adoption, the program has faced “ongoing significant criticism,” with critics claiming that it either doesn’t do enough, or does way too much, depending on whom you ask. (For instance, environmentalists have criticized FEMA’s failure to consult with USFWS and/or NMFS on the impact of the NFIP on endangered species.) It is supposedly these criticisms that have driven FEMA to reform the NFIP.

In a mid-May, FEMA filed a Notice of Intent to prepare an Environmental Impact Statement, proposing to evaluate the following proposed action and alternatives in their EIS:

(1) Modify the NFIP based upon changes identified through the evaluation process to enhance floodplain management standards including provisions to address endangered species and habitat concerns. This is FEMA’s proposed action.

(2) Taking no action, which would result in the continued administration and implementation of the NFIP as it stands today.

(3) Discontinue the NFIP, recognizing that only Congress can take this action.

(4) Request legislative authority to remove existing subsidies and cross subsidies for flood insurance policies.

(5) Modify the NFIP based upon changes identified through the evaluation process to enhance floodplain management standards including provisions to address endangered species and habitat concerns and request legislative authority to remove existing subsidies and cross subsidies for flood insurance policies.

Comments will be accepted on the Notice until July 16, 2012.

Learn more about the NFIP: FEMA on the basics, NFIP evaluation, and NFIP reform. You can also read about recent changes to the NFIP approved in late June by Congress as part of the Federal Public Transportation Act of 2012 (see Title II).

Wind Regulation: Cooperation and Coordination?

Lake Huron. Photo by MeRyan. Some rights reserved.

The Obama Administration and five Great Lakes states signed a Memorandum of Understanding last Friday to coordinate development of offshore energy wind resources in the Great Lakes. Their potential to generate 700 gigawatts of energy represents one-fifth of the total offshore wind potential in the U.S. The memorandum follows the Obama Administration’s similar Smart from the Start initiative to speed wind energy development off the Atlantic Coast. An accompanying news release states that the memorandum will enhance collaboration between state and federal agencies and streamline the review of proposed offshore wind energy projects, as well as set shared standards for the evaluation of wind power projects that reflect their goals for efficient and responsible development. A memo from Mayer Brown discusses the memorandum in detail.

In the past, we’ve written about progress in developing offshore wind resources on the Atlantic Coast’s Outer Continental Shelf, but the Great Lakes pose different challenges. For one, individual Great Lakes states have jurisdiction over the nearby lakebed and onshore transmission points, while the Outer Continental Shelf is under exclusive federal jurisdiction. In addition, the Great Lakes states’ permitting processes are young or still undeveloped in contrast to federal regulators’ significant prior experience with oil and gas leases in the Atlantic.

On a more terrestrial level, the U.S. Fish and Wildlife Service released its final Land-Based Wind Energy Guidelines, creating a tool for developers to efficiently minimize wildlife and habitat impact and satisfy USFWS regulations. The guidelines, detailed in a Stoel Rives memo here, will informally guide developers’ decisions from early stages of site selection through project design and construction, helping developers decide how a potential project site will be judged by the USFWS for purposes of enforcement. They also encourage early communication between the Service and developers, and state the agency’s aim to respond to developers with recommendations for avoiding or mitigating impact within 60 days.

The Great Lakes’ wind resources are a long way from being harnessed, and the USFWS Guidelines don’t remove any level of regulation, but the two tell a story of increased coordination between the various agencies whose regulations affect the wind industry. Despite wind energy’s uncertain future (see our post on the production tax credit), regulators are at least looking to simplify the permitting process.

Shell a Step Closer to Arctic Drilling

Beaufort Sea ice and Brooks Mountain Range. Photo by U.S. Fish and Wildlife Service, some rights reserved.

On Wednesday, the Department of the Interior announced approval of Shell’s oil spill response plan for its Arctic drilling plans, another milestone in the oil giant’s years-long efforts to drill in the Arctic.

For now, Shell has its eyes on two sites for Arctic drilling. Off the north coast of Alaska lie the shallow waters of the Beaufort Sea, and sitting atop the Bering Strait is the Chukchi Sea, separating northwest Alaska from Russia and its East Siberian Sea.

The Department of the Interior’s Bureau of Safety and Environmental Enforcement (BSEE) has approved Shell’s oil spill response plans for the two drilling sites, following the EPA’s announcement in September that it had granted air pollution permits to Shell’s drill ships, supporting icebreakers, and oil-spill response vessels for both sites.

For its part, the DOI has increased safety standards and scrutiny of drilling plans in the wake of last year’s BP spill in the Gulf of Mexico. BSEE director James Watson stresses that they have “conducted an exhaustive review of Shell’s response plan,” and that the Bureau will follow up with exercises, reviews, and inspections, according to the Hill’s post on the approval.

In May, the Obama administration created an inter-agency team to streamline the Alaskan permitting process as part of an effort to speed up domestic development, responding to political pressure over high gasoline prices as well as what Republicans have decried as undue bureaucratic permitting delays. The past year has seen a string of approvals fall into place for Shell.

Still, a long list of federal approvals await before wells can be drilled. Each well must receive an individual permit from the DOI, and the U.S. Fish & Wildlife Service and National Marine Fisheries Service must sign off on the plans.

Shell hopes to begin drilling in both regions this summer.

Selenium, the Snake River, and the Two-Headed Trout

Photo by gharness. Some rights reserved.

A federally prompted US Fish and Wildlife Service study released earlier this month took a close look at selenium contamination in Idaho’s Snake River as a result of the nearby Smoky Canyon phosphate mine. Selenium is a chemical that can be toxic in large amounts, often created as a bi-product in the synthesis of other elements. Last year, the J.R. Simplot Company, owner of the Smoky Canyon Mine, requested that restrictions surrounding selenium disposal be loosened, which is authorized by Idaho water quality laws and the federal-level Clean Water Act, so long as it can be proven that relaxing these restrictions would not cause any harm to the health of nearby humans and animals.

Environmentalist outcries over this request prompted the US Senate to request an official USFWS study, which in turn found that, indeed, increasing the amounts of selenium in the Snake River would negatively affect its population of “prize-winning” brown trout. Toxicologists involved in the study found that many trout died as a result of selenium poisoning, while others birthed larval fish with two heads, a mutation that would most likely prove fatal in the wild. The percentage of affected fish was found to be quite high, nearing 70% for trout alone, without considering other animals in the surrounding environment that may feed on this affected fish population.

The USFWS study concludes that “it seems highly doubtful that the proposed site-specific criterion would comply with the Clean Water Act’s mandate to protect wildlife,” and while Simplot Company has argued that loosening the desired constrictions surrounding selenium would open up room in their budget to contribute financially to clean up and other environmental efforts, environmentalists argue that making an exception in this case could lead to a snowball effect in dealing with similar cases in the future.

Obama Administration/FWS Issue Final Rule on Ferocious Snakes

Photo by cbr_case. Some rights reserved.

For decades, negligent Florida pet owners have been letting their domestic reptiles slip through screen doors and out into the warm, wet embrace of the Florida Everglades. Large snakes like the Burmese python and the yellow anaconda, often inexpensive to buy at pet stores, have in the last two decades become an enormous threat to the environment in and surrounding the Everglades. Thus these snakes, most of them native to Southeast Asia, are at the top of the list of invasive species threatening the already precarious balance of life in the Everglades (which have shrunk to less than half of their original size already due to residential/commercial development and have been polluted by runoff from nearby agricultural operations). The first python was discovered in the Everglades in 1979, but the spike in the python population didn’t occur until around 1995. And then the population exploded.

In what some are seeing as a too little, too late effort, the Obama administration (via Ken Salazar and the Fish and Wildlife Service) announced on Tuesday a ban that would outlaw the transportation of four giant snake species (along with gametes, eggs, or hybrids) categorized as “injurious” by the Lacey Act of 1900  outside of Florida state lines. It’s a good thing, too, as apparently these snakes (Burmese pythons in particular) can survive and travel in salt water and are capable of eating whole deers. Senator Bill Nelson (D-FL), who has been pushing for a ban on sale and importation of snakes for three years, summed up the issue nicely:

“These snakes sure-as-heck don’t belong in the Everglades… And they certainly don’t belong in people’s backyards.”

The Humane Society, meanwhile, has already come out commending the administration’s action but voicing their disapproval in the steady weakening of the ban that occurred prior to being passed (originally nine species would have been prohibited and restrictions on pet ownership/liability increased). Wayne Pacelle, CEO of the Humane Society, issued a statement (following Salazar’s annoucement) saying:

“This rule was swallowed up in the federal bureaucracy for 22 months, and put through a political meat grinder, leaving us with a severely diminished final action.”

Let’s just hope it’s not too late; after all, we’ve all seen Anaconda.

What Does “significant portion of its range” REALLY Mean?

Photo by viralbus. Some rights reserved.

Well, evidently it’s not very straightforward. Which is why the US Fish and Wildlife Service (FWS), along with the National Marine Fisheries Service (NMFS), published draft guidance in the Federal Register last Friday, providing interpretation of the phrase “significant portion of its range” in the Endangered Species Act’s definitions of “endangered species” and “threatened species.”

According to a recent Perkins Coie Update, a “clear and consistent” interpretation of this phrase has “proved elusive over the years.” If finalized, the guidance would provide a legally binding policy that would set forth the agencies’ interpretation of ‘‘significant portion of its range’’ and its place in the statutory framework of the ESA, replacing a 2007 legal opinion from the Solicitor of the DOI on the topic (which was subsequently withdrawn in 2011).

FERC Agrees to Try Not to Kill Too Many More Birds

On Wednesday, March 30th, FERC officially entered into a Memorandum of Understanding (MOU) with the US Fish and Wildlife Service (FWS) in the name of “strengthening” and “promoting” migratory bird conservation.

Image courtesy of FWS. Some rights reserved.

The MOU was mandated by Executive Order 13186, which was signed by then-President Clinton more than ten years ago. I couldn’t help but notice in the text of the Order the following requirement:

Sec. 3. Federal Agency Responsibilities. (a) Each Federal agency taking actions that have, or are likely to have, a measurable negative effect on migratory bird populations is directed to develop and implement, within 2 years, a Memorandum of Understanding (MOU) with the Fish and Wildlife Service (Service) that shall promote the conservation of migratory bird populations.

But, hey, what’s eight years? A “Migratory Bird Mortality” fact sheet published by FWS in 2002 estimated that migratory bird collisions with high tension transmission and distribution power lines “very conservatively kill tens of thousands of birds annually,” and that actual mortality “could be as high as 174 million deaths annually.” Even green technologies are not off the hook: a 2009 article in the Wall Street Journal cites estimates of 75,000 to 275,000 wind-turbine-related bird deaths per year. I’ll let you do the math.

However, FERC might deserve a little slack. As they point out in the MOU, “It is the Commission’s position that as an independent regulatory agency, as defined in 5 U.S.c. § 104, it is not bound by Executive Order 13186. However, the Commission recognizes the benefits of cooperation with the FWS, other Federal agencies, State agencies, and other partners to identify and implement actions that benefit migratory birds. The Commission therefore will implement the provisions ofthis MOU, consistent with its mission, under the procedures established by the Commission’s regulations.”

Under the MOU, FERC agrees to, most generally: “Engage FWS for early coordination relative to potential impacts of proposed actions, to proactively address migratory bird conservation, and to initiate appropriate actions to avoid and minimize the take of migratory birds.” The MOU became effective upon signing.

To read about the rest of FERC’s obligations regarding Migratory Birds, don’t forget to check out the full text of the MOU.

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