Policy News: May 6

Here are some highlights from the latest ESA Policy News by Science Policy Analyst Terence Houston. Read the full Policy News here.


The House Transportation and Infrastructure Subcommittee on Water Resources and Environment met May 5 for the first in a series of hearings entitled “EPA Mining Policies: Assault on Appalachian Jobs.”

The hearings are in reaction to the Obama administration’s review of coal mining projects and the recent interim Environmental Protection Agency (EPA) guidance for issuing mountaintop removal permits in Appalachia. The guidance is currently under review of the White House Office of Management and Budget (OMB). Of the hearing’s four witnesses, none was opposed to mountaintop removal mining.

Coal industry supporters on Capitol Hill believe the guidance, which sets the first-ever numeric standard for water conductivity—which  EPA says measures degradation from mining debris—is a significant departure from previous federal oversight of mountaintop removal mining. The mining technique being targeted by the guidance involves dynamiting mountaintops to expose coal seams and disposing of debris in adjacent valleys.

Critics of the guidance assert it amounts to new regulations without having gone through the rulemaking process.  Proponents of the guidance maintain that Appalachian mountaintop removal mining is particularly harmful to both ecosystems and people, while producing only a fraction of America’s overall coal output.


On May 4, the US Department of Interior’s Fish and Wildlife Service (FWS) published a final rule to remove gray wolves in Idaho and Montana as well as parts of Oregon, Utah and Washington, from the threatened or endangered list under the Endangered Species Act (ESA). The move comes per the direction of language in the recently enacted  appropriations bill for Fiscal Year 2011.

The wolf delisting provision was championed by of House Interior and Environment Appropriations Chairman Mike Simpson (R-ID) and Sen. John Tester (D-MT). Conservation and scientific groups are concerned that the delisting could pave the way for removal of additional species through legislative means that circumvent—as this one did—the usual delisting process.

Department of Interior Secretary Ken Salazar touted the delisting as “a success story,” comparing the gray wolf to the recovery of the whooping crane, brown pelican and bald eagle. Interior Deputy Secretary David Hayes noted that the agency will continue to apply the ESA’s “post-delisting monitoring requirements” to help ensure the wolf populations continue to flourish under state management.

Some, such as Senator Orrin Hatch (R-UT), claim the delisting language did not go far enough. Hatch is the lead sponsor of S. 249, the American Big Game and Livestock Protection Act, which would remove ESA protections for gray wolves nationwide. Identical legislation (H.R. 509) has been introduced in the House by Rep. Denny Rehberg (R-MT).

Great Lakes Wolves

The FWS also published a proposed rule to remove gray wolves from ESA protection in the western Great Lakes region, including Michigan, Minnesota, Wisconsin and portions of adjoining states.

Wolf numbers now total more than 4,000 in the three states, according to the agency. Wisconsin’s wolf population is an estimated 800 wolves, behind only Alaska and Minnesota Michigan is estimated to have roughly 630 wolves while Minnesota has an estimated wolf population of 2,921.

As part of the proposed rule, the FWS would revise the range of the gray wolf by removing all or parts of 29 eastern states due to newer taxonomic information indicating that the gray wolf did not historically occur in those states. FWS is also initiating status reviews of gray wolves in the Pacific Northwest and is seeking information on a newly-recognized species, the eastern wolf. Written comments on the proposed rule for wolves in the western Great Lakes may be submitted by one of the following methods:


On May 3, the House Natural Resources Committee and House Agriculture Committee met for a joint hearing that considered federal regulations on the use of pesticides that could pose a risk to salmon populations. Republican committee members assert the regulations, if implemented, could have devastating economic impacts on US farmers.

The hearing considered court-mandated National Marine Fisheries Service (NMFS) biological opinions (bi-ops) issued after a 2002 US District Court found that the Environmental Protection Agency did not sufficiently collaborate with NMFS and the Fish and Wildlife Service (FWS) on how pesticides may affect certain salmon protected by the Endangered Species Act. NMFS called for large spray buffer zones around waterways that would significantly limit the use of several pesticides on large swaths of Pacific Northwest and California farm land.

The bi-ops said salmon populations would be significantly harmed unless 1,000-foot pesticide buffer zones around waterways were put into place. Buffer zones that large would include 61 percent of farmland in Washington and 55 percent in Oregon, according to Natural Resources Committee Republicans. House Natural Resources Chairman Doc Hastings (R-WA) asserted that if the bi-ops become law, they would be in violation of President Obama’s executive order seeking to reduce regulatory burdens.


On April 27, the Environmental Protection Agency and the US Army Corps of Engineers (USACE) released a revised draft guidance for determining whether a waterway, water body, or wetland is protected by the Clean Water Act (CWA). This guidance is intended to provide more clarity for determining which water bodies are protected by the CWA. The draft guidance will be open for 60 days of public comment before it is finalized.

The new guidance is part of the Obama administration’s national Clean Water Framework.  The new guidance is a revised version of a December 2010 draft that had received criticism for being too rushed. The latest draft of the guidance seeks to demonstrate that the Obama administration intends to begin a longer, more deliberative process to clarify the definition of federally protected waters. Both environmental supporters and industry opponents have called for regulation-writing as a way to address the question in a more permanent way.

The new proposal would replace an earlier guidance released in 2008 under the previous administration that defined the scope of the CWA more narrowly in the wake of two Supreme Court decisions that created uncertainty as to the law’s jurisdictional authority. In the most recent case, Rapanos v. United States (2006), a 4-1-4 plurality limited the CWA regulatory authority to “waters of the United States” that are “relatively permanent, standing or flowing bodies of water,” not “occasional,” “intermittent,” or “ephemeral” flows.

Environmental groups support the Obama proposal, while representatives of agriculture and industry assert it circumvents proper regulatory procedure and will have dire economic impacts. House Transportation and Infrastructure Water Resources Subcommittee Chairman Bob Gibbs (R-OH), a critic of EPA’s attempts to expand CWA enforcement, plans to hold hearings on the new guidance policy.


On April 27, the Ecological Society of America (ESA) submitted comments concerning a draft environmental impact statement from the Bureau of Land Management on potential effects of the withdrawal of federal land from uranium mining surrounding the Grand Canyon.

ESA wrote in support of BLM’s proposal to withdrawal one million acres for up to 20 years from uranium mining in the region. The draft impact statement included BLM’s proposal as well as three alternatives that consisted of either limited or no withdrawal of federal land.

In its comments, ESA noted that Grand Canyon National Park in Northern Arizona is home to numerous species which fall under protection of the Endangered Species Act. The letter noted that many species of concern would be adversely impacted in the event uranium were to contaminate water resources in the Grand Canyon. Amphibians and many predatory birds, including the bald eagle, California condor and peregrine falcon would be among the effected species, according to the letter. It also noted that surface disturbances typical of mining operations have large footprints due to dust and erosion.

In addition to ecological impacts the letter also cited the public health effects and economic downsides of uranium mining. The letter notes consequences documented by the Environmental Protection Agency studies on current effects of uranium exposure to Navajo people in the region. It also references the economic impacts of recent unforeseen environmental disasters, such the 2010 BP Gulf oil spill and the 1979 Church Rock mine accident in New Mexico.

To read the letter, see: http://www.esa.org/pao/policyStatements/Letters/Grand%20Canyon%20Mining%20Letter.pdf

Author: Terence Houston

Science Policy Analyst for ESA.

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