The New Interior – A periodic update from Steptoe & Johnson LLP featuring important policy changes at the Department of the Interior and related developments on Capitol Hill and throughout the Obama Administration.

Sage Grouse Populations Not Under ESA Protection but Species Management Issues Loom for Energy Developers

After evaluating available scientific and commercial information, the Fish and Wildlife Service (FWS) has announced that although protection of the greater sage-grouse is warranted under the Endangered Species Act (ESA), listing at this time is precluded by the need to address other listings of higher priority. The Department indicates that the greater sage-grouse will be added to the list of candidate species under the ESA and will be proposed for listing when funding and workload priorities for other listing actions allow. No projection has been made as to when a proposed rule might be issued for protection of the greater sage-grouse. In announcing its decision, FWS indicated that it will review the sage-grouse status annually and work with states, other federal agencies, private landowners, and other partners to increase efforts to conserve the species. Greater sage-grouse are typically found in Washington, Oregon, Idaho, Montana, North Dakota, eastern California, Nevada, Utah, western Colorado, South Dakota, Wyoming, and Canadian provinces of Alberta and Saskatchewan.

FWS simultaneously announced its determination that the Bi-State distinct population segment (DPS) of the greater sage-grouse (also known as the Mono Basin area population of greater sage-grouse) constitutes a valid distinct population segment and is therefore a listable entity under the ESA. Although finding that the Bi-State DPS of the greater sage-grouse warrants protection under the ESA, FWS decided that listing is precluded by the need to address higher priority actions.

In connection with these announcements, the Bureau of Land Management – which manages more greater sage-grouse habitat than any other government agency – has issued guidance to expand the use of science and mapping technologies to improve land-use planning and develop additional measures to conserve sage-grouse habitat while ensuring that energy production, recreational access and other federal lands uses continue as appropriate. The guidance, coming in the form of an Instruction Memorandum (IM), also addresses a related species – Gunnison sage-grouse – which is in the process of being evaluated by FWS to determine whether ESA protection is warranted. The IM supplements BLM’s 2004 National Sage-Grouse Habitat Conservation Strategy.

The IM identifies management actions necessary at some sites to ensure environmentally responsible exploration, authorization, leasing and development of renewable and non-renewable energy resources with the ranges of the greater sage-grouse and the Gunnison sage-grouse. The IM sets out a series of actions that can be taken in “priority habitat” (i.e. habitat of highest conservation value relative to maintaining sustainable sage-grouse populations range-wide) to maintain sustainable sage-grouse populations across the broader landscape.

These available actions include:

• For Oil and Gas/Geothermal Interests – 1) withholding or deferring the sale of parcels proposed for oil and gas or geothermal leasing in priority habitat; 2) for parcels offered for sale in sage-grouse priority habitat, attaching a lease notice to new leases alerting the lessee that additional conditions will apply to approvals to develop the lease, including Applications for Permit to Drill (APDs), sundry notices, and associated rights-of-way, if appropriate; and 3) in priority habitat and where supported by NEPA analysis, attaching conditions to the approval of APDs that are more protective than conditions identified in any applicable Resource Management Plan(s).

• For Oil Shale – screen new oil shale lease applications to identify whether the proposed leasing area includes priority habitat, and if so, alert the applicant that pending the NEPA analysis, the application could be delayed or denied, or that lease/project conditions of approval may be imposed to designate avoidance areas or include No Surface Occupancy restrictions, for example.

• For Wind and Solar Energy Development and Associated Site Testing – screen new right-of-way applications to identify whether the wind or solar energy development or site testing and project area includes priority habitat, and if so, alert the applicant that the application could be denied or conditions may be imposed on the right-of-way grant to protect the priority habitat.

• For Transmission – re-route proposed transmission projects to avoid priority habitat.

• For Resource Management Plan Revisions/Amendments – analyze one or more alternatives that would exclude priority habitat from energy development and transmission projects.

The IM notes that BLM will continue to work with state fish and wildlife agencies, using a consistent protocol, to delineate and map areas of high priority habitat across the ranges of the greater sage-grouse and the Gunnison sage-grouse. That map will serve as a platform for a more directed BLM-wide sage-grouse policy (along the lines of what is currently in place in Wyoming). Once that map is completed, each BLM State Office – working in coordination with state fish and wildlife authorities – will identify state-specific management actions to be undertaken both inside and outside the identified priority habitat in efforts to maintain sustainable sage-grouse populations.

Court Says Bureau of Reclamation Must Take “Hard Look” at Water Diversion Plan

The federal district court for the District of Columbia in Manitoba v. Salazar has brought to a grinding halt plans for a 45-mile pipeline that would divert water from the Missouri River into arid parts of North Dakota. The Canadian province of Manitoba and the State of Missouri claim that a joint venture between the governments of the United States and the State of North Dakota known as the Northwest Area Water Supply project, which is designed to withdraw water from Lake Sakakawea (a reservoir on the Missouri River) and transfer it across the continental divide should be halted because the Bureau of Reclamation failed to take a “hard look” under the National Environmental Policy Act concerning the risks of enabling foreign species to move from the Missouri River Basin to the Hudson Bay Basin.

In granting partial summary judgment for Manitoba and Missouri, the district court is requiring Reclamation to take a “hard look” at (1) the cumulative impacts of water withdrawal on the water levels of Lake Sakakawea and the Missouri River; and (2) the consequences of biota transfer into the Hudson Bay Basin, including Canada. This ruling follows a second effort by Reclamation to properly assess the environmental impacts of the project, after having been ordered by the court in 2005 to study such issues. Even in issuing that 2005 order, the court did not enjoin construction of the pipeline, much of which is now completed and highly anticipated by North Dakotans in the areas to where water would be diverted.

As part of its decision, the court rejected Reclamation’s argument that it had no obligation to consider the environmental impacts of its project within the territory of a foreign country. The court cited guidance from the Council on Environmental Quality indicating that federal agencies must consider reasonably foreseeable transboundary effects of proposed actions in any analysis of proposed actions in the United States.

Interior Unveils WaterSMART Initiative

Secretary Salazar has signed a Secretarial order establishing a new water sustainability strategy for the United States. In announcing the WaterSMART Initiative, the Secretary noted that the federal government’s existing water policies and programs are not designed to handle 21st century pressures on water supplies. He indicated that population growth, climate change, rising energy demands, environmental needs, aging infrastructure, and risks to drinking water supplies are all challenges that must be faced.

The WaterSMART Secretarial Order is focused on improving water conservation and helping water and resource managers make better decisions about water use. The program’s features include:

• A national framework to integrate and coordinate water sustainability efforts of the Department and its federal, state and private partners. WaterSMART will expand the Bureau of Reclamation’s various grant programs and its studies of river basins. WaterSMART will also boost the US Geological Survey’s National Water Census, which will be conducted for the first time in 30 years.

• Establishing a WaterSMART Clearinghouse for the American public. The clearinghouse will allow the Department to lead and assist state and local governments, tribal nations, and others in water conservation and sustainable water strategies. The clearinghouse will bring all stakeholders together to identify best practices in water conservation, incentives, and the most cost-effective technologies.

• Criteria that the Department applies to identify and support energy projects and actions that promote sustainable water strategies. WaterSMART will identify the water footprint of various energy technologies and ensure that it is considered as part of any decision process on the development of such technologies.

• A water footprint reduction program for facilities and water-consuming operations to achieve and exceed the goal established by President Obama to reduce overall consumption of potable water by 26% by 2020 and industrial, landscaping, and agricultural water by 20% by 2020.

Secretary Salazar also announced that he is directing the Department to increase available water supply for agricultural, municipal, industrial, and environmental uses in the western United States by 350,000 acre-feet by 2012.

President Obama’s 2011 proposed budget for the Department doubles the current enacted 2010 appropriations for water programs, including $72.9 million for the WaterSMART program, which is a total increase of $36.4 million over 2010. The WaterSMART Initiative will coordinate with the Department’s Task Force on Energy and Climate Change and its Climate Change Response Council, working with the Department’s regional Climate Science Centers and Landscape Conservation Cooperatives to obtain the best available science and ensure sustainable water strategies in bureau and agency field offices. 

Wind Turbine Advisory Committee Settles on Draft Recommendations

The Department announced in early March that the 22-member Wind Turbine Guidelines Federal Advisory Committee had reached consensus on a set of draft recommendations aimed at minimizing the impacts of land-based wind farms on wildlife and its habitat. Secretary Salazar plans to review the recommendations and take them under advisement as the US Fish and Wildlife Service develops guidelines for evaluating wind energy development on public and private lands. The draft report contains both policy recommendations and recommended voluntary guidelines for siting and operating wind energy projects.

While a full set of the Advisory Committee’s recommendations are not yet publicly available, highlights of the recommendations include:

• A decision-making framework that guides all stages of wind energy development;

• Reliance on the best available science when assessing renewable energy projects and their potential environmental impact; and

• Use of landscape-scaled planning that recognizes the need to think long-term about protecting our nation’s economic and natural resources.

Interior Outlines Plan to Develop Department-wide Policy on Tribal Consultation

The Department has set in motion a plan of action to comply with President Obama’s November 2009 directive to implement Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, which requires federal agencies to develop policies on tribal consultation and cooperation. The Department intends to establish a comprehensive, department-wide policy for meaningful consultation and cooperation with tribes.

The Department plans to develop a consultation policy that will:

• Recognize the special legal status of tribal governments;

• Respect tribal sovereignty and support self-determination and self-governance;

• Honor the trust relationship between the United States and tribal governments;

• Demonstrate Interior’s commitment to improving communications while maximizing tribal input and coordination;

• Ensure that Interior consults on a government-to-government basis with appropriate tribal representatives;

• Identify appropriate Interior officials who are knowledgeable about the matters at hand and are authorized to speak for Interior; and

• Ensure that Interior’s bureaus and offices conduct consultation in a manner consistent with the department-wide policy.

As part of the plan, Interior will create a Tribal Consultation Team comprised of senior Department representatives and tribal leaders. The team will draft the consultation policy document; ensure compliance with the President’s goal and policy of transparency during the policy development process; require the review and evaluation of Interior functions, policies, procedures and practices to identify policies with tribal implications; and require on-going review and comments from the tribes and general public on the draft policy.

The plan also requires Interior to identify an official who will be responsible for overseeing the implementation of the plan, as well as progress on reporting and compliance with the Executive Order. That official will also be responsible for overseeing the development of supplemental consultation policies specific to each Interior bureau and office, and coordinating with other federal departments and agencies to ensure greater efficiency and consistency in the consultation process throughout the federal government.

FWS Director Passes Away

On February 20, 2010, US Fish and Wildlife Service Director Sam Hamilton died unexpectedly in Colorado. Hamilton was a 30-year employee of FWS. Prior to being appointed as FWS Director by President Obama in September 2009, Hamilton served as the FWS Southeast Regional Director. Earlier in his career, Hamilton served as Assistant Regional Director of Ecological Services in Atlanta and as the FWS Texas State Administrator in Austin. Among many career accomplishments, Hamilton is credited with providing key leadership and oversight to the Department’s restoration work in the Everglades, the largest ecosystem restoration project in the country. He also oversaw the extensive recovery and restoration efforts required following Hurricanes Katrina and Rita, which devastated coastal wetlands, wildlife refuges, and other wildlife habitat areas along the Gulf of Mexico. Steptoe’s Tom Collier and John Duffy were friends with Hamilton from their days together at Interior during the Clinton Administration.

Rowan Gould has been named Acting FWS Director. Prior to Hamilton’s death, Gould was the FWS Deputy Director of Operations. Gould previously served as acting director from January 2009 until August 2009, when Hamilton was confirmed.

One rumor is that Dan Ashe, currently FWS Deputy Director for Policy, will be named Hamilton’s permanent replacement. 

If you would like to speak with a Steptoe attorney about our Interior practice, please reply to this email or contact Tom Collier (202.429.6242 or tcollier@steptoe.com) or Jody Cummings (202.429.8096 or jcummings@steptoe.com). 

Missed an issue? Click on the links below to access previous newsletters:
    Issue 1
    Issue 2
    Issue 3
    Issue 4
    Issue 5
    Issue 6
    Issue 7
    Issue 8
    Issue 9
    Issue 10
    Issue 11
    Issue 12
    Issue 13
    Issue 14
    Issue 15
    Issue 16
    Issue 17