'Harm' under Endangared Species Act now means direct harm, not indirect, such as habitat loss; many states object

Protection of northern spotted owls in the Pacific Northwest
under the Endangered Species Act led to the end of logging
in their habitat. (U.S. Fish and Wildlife Service photo by Tom Kogut)

"The Trump administration is removing protections from the key places where endangered species live, saying states can keep the areas safe, but experts say states aren’t equipped for the task," Alex Brown reports for Stateline.

On July 10, the administration finalized regulations redefinng the word "harm" in the Endangered Species Act, to make it cover only cases where endangered animals are directly harmed. That ruled out such actvities as "logging projects that would cut old-growth trees where owls build their nests, and agriculture operations that diverted water from streams where salmon return to spawn," Brown explains.

A 2019 study of animals added to the Endangered Species List from 1975 to 2017 "found that only 17 percent of them faced threats from direct killing, while 81 percent faced habitat loss," Brown reports. The change means “You can destroy the resources a species requires as long as you don’t do it when the species is at home,” Karrigan Börk, a law professor and director of the Center for Watershed Sciences at the University of California Davis Institute of the Environment, told Brown.

"In public comments after the rule was initially proposed, wildlife agency leaders from both liberal and conservative states said the change would be a blow to their conservation efforts," Brown reports. "Wildlife officials in Arizona, Georgia, Louisiana, New Mexico, New Jersey, Vermont and Wyoming also expressed concern about the loss of habitat protections, as did the Association of Fish & Wildlife Agencies, a nonprofit that represents state wildlife managers. Of the public comments reviewed by Stateline, only Alaska’s wildlife agency leader offered wholehearted support for the change. . . . Even if states were to pass laws and invest in programs to protect wildlife habitat, they would be unable to enforce those measures on federal land."

Federal officials said the change would let states "manage wildlife without burdensome federal regulations," Brown writes.  "But legal experts and wildlife veterans say that almost no states have endangered-species laws on the books that allow state officials to prevent habitat destruction in the name of saving wildlife. . . . Many wildlife experts also noted that state wildlife agencies are already underfunded as it is. Taking on the massive regulatory system that prevents developers and extractive industries from destroying critical habitat would require far more resources than those agencies have available. A coalition of environmental groups and tribal nations have filed lawsuits challenging the federal rollback."

West Virginia's waterway 'reclamation' yields cleaner water, rare earth metals and a growing outdoor industry

Deckers Creek is flowing with fresh water and 
wildlife again. (Wikipedia photo)

Coal mines left waterways across West Virginia polluted by sulfuric acid and metals, but that’s not the end of their story. "Set on a quiet hillside, a series of cascading ponds are doing their small part to fix a big problem," reports Mira Rojanasakul of The New York Times. The three-pond system slowly "reclaims" the state's waterways for wildlife and people to enjoy once again, and it comes with a side benefit of rare earth elements.

The three-pond system works to reduce water acid and then remove metals. The first pond allows water to "percolate through limestone and organic matter," Rojanasakul explains. The second pond completes more filtration, allowing the aluminum to drop out. By the time the water flows from the third pond, the iron has dropped out. "Fish and sensitive species like salamanders and frogs are returning to Deckers Creek, which for decades flowed rust-orange and lifeless from iron and other pollution."

Deckers Creeks is "one of dozens of cleanup sites being installed across West Virginia, helping the state make progress on a global environmental issue: waterways poisoned from coal mining," Rojanasakul reports. "A few miles downstream, a new, higher-tech version of this cleanup process is yielding an unexpected bonus: 'Rare earth' elements, essential for clean energy technologies and military equipment, are being recovered from the pollution."

Decreasing water acidity and removing metals isn’t just helpful for wildlife and biodiversity -- acid mine drainage "can corrode pipes and threaten drinking water for many residents of rural West Virginia who rely on backyard wells," Rojanasakul writes. 

Federal and state officials help guide West Virginia's waterway reclamation efforts, but the "boots on the ground" are often small nonprofits. Rojanasakul adds, "They monitor sprawling watersheds and build relationships within communities, even talking private landowners into opening up their backyards for cleanup work."

Many locals view their reclaimed waterways as a potential path to a new revenue source for residents and the state. Rojanasakul reports, "Employment in the state’s outdoor recreation economy is starting to rival other industries, with 20,300 jobs in 2023 compared with 17,700 workers in mining and support activities that same year."

Conservation pays off for Oklahoma farmers: clean streams, healthy cattle, lower costs and visiting eagles

Horse Creek Cove, Grand Lake, Oklahoma.
 (grandlake.com photo)

Making the tough decision to protect private property water sources helped Oklahoma farmers address contamination, produce healthier livestock and save money. "A big part of the solution was simple: Give cows clean drinking water and keep them out of the streams," reports Cara Buckley of The New York Times. "About 100 Oklahoman streams once polluted by runoff predominantly from farmland have been restored to health. That’s more than in any other state, according to the Environmental Protection Agency."

The choice to restrict farm animals from streams took farmers like Grant Victor, who wanted to clean up his property's creek, even if it meant breaking with ranching tradition. Buckley writes, "Working with a conservation program, he installed fencing around Horse Creek, creating a protective riparian buffer, even though it meant keeping his animals off 220 acres, about 6% of his family’s land."

He waited and nature did not disappoint. "The benefits of a healthier waterway exceeded his hopes," Buckley reports. "Within just a couple of years, the banks were transformed into verdant corridors of grasses and shrubs. Wildlife appeared, including white-tailed deer, bobcats, coyotes and bald eagles that return each year to a sprawling nest to rear their young."

But that's not all. Victor was rewarded with healthier cattle. Buckley adds, "Victor installed pipes and wells in the pastures, allowing his cattle to drink water unsullied by sediment and their own waste. They put on more weight and suffered fewer respiratory ailments, and that resulted in lower veterinary bills."

Other Oklahoma farmers have adopted methods that support nature while increasing farming profits. Steve Glasgow, a recently retired Oklahoma state resource conservationist, "estimates that nearly a third of Oklahoma’s crop farmers employ conservation practices, up from roughly one-fifth 25 years ago. . . . Conservation practices can also increase yields and reduce labor and fuel costs."

Victor knows some of his neighboring farmers remain conservation skeptics and scoff at his choices but he's OK with that. He told Buckley, "I’m sure at the coffee shop, they were all laughing at me. . . . My dad always taught me there’s some things you can’t afford to do and there’s other things you can’t afford not to do. This was one of the things I couldn’t afford not to do."

In landmark 5-4 ruling, Supreme Court says Environmental Protection Agency can't protect wetlands not tied to streams

Signs posted by the Idaho couple whose building project EPA
blocked, prompting them to file suit. (Associated Press photo)

The U.S. Supreme Court ended one of the longest battles over the Clean Water Act Thursday, ruling 5-4 that the Environmental Protection Agency's power to protect wetlands does not extend as far as the high court said it did in another narrow decision 17 years ago. The decision has "broad ramifications for the environment, agriculture, energy and mining," The Associated Press reports.

At issue was the act's phrase "waters of the United States," or WOTUS, which the court said in 2006 could be regulated if they had a "significant nexus" to nearby waterways. Thursday, in an opinion written by highly conservative Justice Samuel Alito, the court said WOTUS "extends to only those wetlands with a continuous surface connection to bodies that are 'waters of the United States' in their own right so that they are 'indistinguishable' from those waters." Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett joined the opinion.

Conservative Justice Brett Kavanaugh dissented, saying the Army Corps of Engineers “has always included in the definition of ‘adjacent wetlands’ not only wetlands adjoining covered waters but also those wetlands that are separated from covered waters by a manmade dike or barrier, natural river berm, beach dune, or the like. . . . We should not create ambiguity where none exists. And we may not rewrite ‘adjacent’ to mean the same thing as ‘adjoining,’ as the Court does today.”

Richard J. Lazarus, a professor of law at Harvard Law School, went back even farther in an op-ed for The Washington Post, citing a unanimous 1985 decision of the court that allowed EPA to protect wetlands. The latest decision "could lead to the removal of millions of miles of streams and millions of acres of wetlands from the law's direct protection," Lazarus writes. Connor Griffin of the Louisville Courier Journal explains, "Generally, wetlands are areas of land covered with water or saturated for some or all of the year. Marshes are an example of this habitat. Boasting biodiversity on par with rainforests and coral reefs, wetlands provide critical habitat for animals like waterfowl, and are a hotbed for plant life."

The case was filed by an Idaho couple who got a local permit 15 years ago build about 300 feet from Priest Lake and filled in part of a wetland with sand and gravel, Reuters reports. The EPA blocked them, they sued, and the high court ruled 9-0 Thursday that EPA overstepped. As the case moved through the courts, Republican and Democratic administrations redefined WOTUS in various ways, some going beyond the wetlands question and generating more court action. "In 2015 the Obama administration widened the scope of the law to cover even ephemeral streams and ponds," Robert Barnes reports for the Post. "The Trump-era EPA repealed the rule and in 2019 created a new, weaker one. The Biden administration has tried to strike a balance by undoing the Trump-era rule and redefining EPA oversight as covering 'traditional navigable waters,' including interstate waterways and upstream water sources that influence the health and quality of those waterways."

California, Arizona and Nevada will take less water from the Colorado in return for at least $1 billion in federal funds

Lake Mead (Photo by Matthew Reamer, The New York Times)

"The Biden administration has negotiated a hard-fought agreement among California, Arizona and Nevada to take less water from the drought-strained Colorado River," reports Christopher Flavelle of The New York Times, noting that the deal "reduces, for now, the risk of the river running dry below the Hoover Dam, which would jeopardize the water supply for Phoenix, Los Angeles and some of America’s most productive agricultural land."

The states along river, also vital source of hydroelectric power, reached an agreement with the administration Monday "to conserve an unprecedented amount of their water supply in exchange for about $1 billion in federal funding, according to people familiar with the situation," reports Joshua Partlow of The Washington Post, who reported the outlines of the deal last week. The money would go to states, cities and Native Amerian tribes.

"California, Arizona, and Nevada have agreed to voluntarily conserve 3 million acre-feet of water over the next three years, which amounts to 13 percent of these states’ total allocation from the river," Patrlow reports. "The Biden administration has committed to compensating the states for three quarters of the water savings — or 2.3 million acre-feet — which would amount to at least $1 to $1.2 billion in federal funds, the people familiar with the talks said. The money from the Inflation Reduction Act would pay farmers and others who voluntarily forego their supplies."

Flavelle reports, "The agreement struck over the weekend runs only through the end of 2026, and still needs to be formally adopted by the federal government. At that point, all seven states that rely on the river — which include Colorado, New Mexico, Utah and Wyoming — could face a deeper reckoning, as its decline is likely to continue."

Record-breaking snowmelt is flooding the Mississippi

Mississippi River course, watershed, and major tributaries
(Wikipedia map)

Where there's snow, there's eventually water, and this spring, the Mississippi River and its vast tributaries have left their drought-filled days behind and are swelling with record-breaking snowmelt. "Flooding expected this spring is likely to bring the river to its highest level in over 20 years, according to the National Weather Service," reports Kayla Guo of Politico. "For the next three weeks, the Department of Agriculture said, all barge traffic across part of the Upper Mississippi has stopped due to flooding. . . . [It] predicts that around the end of this week, locks and dams as far south as Saverton, Missouri (around the Mississippi River's midpoint) could be forced to shut down until mid-May due to high water."

Riverside Park in La Crosse, Wis., flooded on April 26.
(Photo by Eric Auer Lee, La Crosse Tribune)

People in the river's central valley are preparing for the surge. "Cities in Iowa and Illinois are likely to face a big test of beefed-up flood defenses in the next week as flooding from record snow in Minnesota courses down the Mississippi River," reports Joe Barrett of The Wall Street Journal. "Some cities in Minnesota had record or near-record snowfall this winter, and much of it rapidly melted as temperatures climbed to the 80s and 90s earlier this month. . . . Peak floodwaters are heading for Iowa and Illinois. . . .The floods aren't expected to cause as much damage as they did in 2019. . . . One of the biggest and longest-lasting flood seasons on record. . . . Snow this winter was heavily concentrated in Minnesota and Wisconsin, so most tributaries of the Mississippi south of those states aren't likely to contribute to the flood."

Marquette, Iowa, pop. 430, is one town preparing. "Highway 76 along the Mississippi is closed north of Marquette. Marquette Mayor Steve Weipert said the city is in a good place, as they continue to follow their plans," reports KCRG News in Cedar Rapids. Weipert told KCRG, "We knew at every stage what we had to do, and go ahead and get 'er done, and that's how life goes on the river." Barrett reports, "Still, the floods are poised to present the first significant test of new pumps and strengthened temporary levees that cities put in place or into their flood-fighting plans after 2019. . . . The river crested in La Crosse, Wis., about 25 miles north of the Iowa border, on Wednesday at the third-highest level ever."

Contractors hired to aid E. Kentucky flood victims left some feeling 'violated and vulnerable;' lack of coordination cited

Louisville Public Media graph from Kentucky Transportation Cabinet data; click to enlarge

For victims of Eastern Kentucky's record flash flood last July, surviving the disaster was one thing; now, some of the victims must overcome additional losses, wreckage debris and possible re-flooding from what state-paid cleanup crews did or left behind, report Jared Bennett and Justin Hicks of The Kentucky Center for Investigative Reporting, part of Louisville Public Media.

Bennett and Hicks spoke with Don and Malissa Young of McRoberts, whose trailer was removed from its foundation and flooded. "For weeks [after], the Youngs had been working on packing up what they could from the inside: Baby photos, home videos, memorabilia from Don's time spent as a State Police officer. . . . Without any notice, cleanup crews ripped apart the home they had shared for nearly 30 years. . . . A Kentucky Transportation Cabinet official overseeing the cleanup process called Don personally and afterward told him to file a negligence claim with the state Board of Claims. They filed a claim seeking $400,000 to pay for the house and their belongings." The state denied any liability and a cabinet attorney "argued the couple's house was taken by an unnamed third party," KyCIR reports. "In fact, the response said the Youngs 'may themselves have been negligent in failing to remove or secure their personal property.'"

Don Young sits in rubble after clean up crews
demolished his home. (Courtesy photo)

The crossovers of state, federal and subcontracted employees failed flood victims because groups did not coordinate effectively, Bennett and Hicks report: "In a daily report compiled by several staffers, a U.S. Army Corps of Engineers adviser wrote that even trying to get an accurate assessment of the amount of debris was hindered by 'too many coaches, not enough players.'. . . USACE advisors regularly expressed concerns about crews taking trees or other materials that did not fit federal criteria for debris removal after a disaster. . . . KyCIR heard from residents on multiple occasions that contractors removed debris such as valuable trees from private property without permission or cut half-mile long access routes through forests. It left them feeling overtaken and ignored by the very people charged with helping them."

A cabinet spokesman "said that cleanup crews were instructed to make attempts to contact property owners before starting the work," KyCIR reports. "Nearly a month later, the same work crew that demolished the Youngs' home was confronted with threats and resistance when they tried to cut down live trees they considered a hazard to future flooding. This time they tried the law-enforcement approach. A young, untrained police officer arrived on the scene to Tase and arrest the homeowner. . . . The homeowners had no prior notice or information about what was happening and the mission debris workers were on. Like the Youngs, they're also investigating legal remedies."

The Army Corps' early estimates "said the July floods created nearly two million cubic yards of debris in the waterways alone," KyCIR reports. "Justin Branham was one of the Corps staffers who wrote those estimate reports. . . . Branham said that most of Eastern Kentucky were in danger of flooding again because of debris piles blocking waterways." Records show that, within a week of the flood, the cabinet signed a contract with Florida-based Ashbritt Inc. to lead the cleanup. "Since August 2022, the state has paid the company $157 million . . . by the ton for debris removed."

As Branham warned, some areas have re-flooded. "Candice Fields, disaster coordinator for the Kentucky River Area Development District, said the help that does come is akin to a 'Band-Aid on a bullet wound,'" KyCIR reports. Letcher County resident Angela Collins told KyCIR that Gov. "Andy Beshear gets on [the TV] and says, 'Oh, things have changed.'. . . Well, get your high horse down here and see how much it changed because they left garbage! Do we deserve garbage all over our land? No, we don't. We're not a bunch of, you know, nutsy hillbillies. We're human beings just like everybody else."

UPDATE, April 29: KCIR reports that it "found around only 59% of the debris initially estimated to be on the ground after the flood had been picked up as of Dec. 22, 2022, when officials said cleanup was 'complete'."

The Mississippi is awash in spring, but fears of another drought that will impede barge traffic are never far away

Lake Pepin, the river's widest natural section, is part of the Minnesota–Wisconsin border. (Photo: Tom Peterson, Stateline)

A Wikipedia snapshot on how mighty the "Mighty Mississippi" is: The river has the world's fourth-largest drainage basin ("watershed" or "catchment"). The basin covers more than 1,245,000 square miles, including all or parts of 32 U.S. states and two Canadian provinces. Wow.

Spring is here, melting ice on the Mississippi and snow in its watershed. "As state and federal officials prepare for the prospects of spring floods, last fall's drought, which stalled commercial boat traffic on the mighty river, is never far from mind," reports Tom Peterson of Stateline. "The drought provided an expensive reminder of just how vital — and how vulnerable — the economic thoroughfare is." Lou Dell'Orco, chief of operations for the Army Corps of Engineers, told Peterson, "It's a highway. If you haven't lived around it, you don't recognize it. But it's a major artery to move goods and commerce in a safe, efficient and cost-effective manner."

The river handles "92% of the nation's agricultural exports and 78% of the world's exports in feed grains and soybeans," Peterson reports. "Millions of barrels of crude oil and other petroleum products move on the river monthly, as do 35% of the nation's exports of thermal coal, which fuels power plants. . . . Eleven of the top 12 agriculture-exporting states in the nation lie in the basin. . . .When the river dropped precipitously last fall, it snarled barge traffic and delayed shipments, exacerbating supply chain problems and bringing the Mississippi River's role in the U.S. and global markets to the fore."

"What comes this spring is uncertain. The National Weather Service's spring flood forecast called the risk to the Mississippi main-stem 'well above normal,'" Peterson reports. "Since February, the service reported, at least one significant weather system has moved through the Upper Mississippi region each week, leaving an 'anomalously large snowpack.'" As of April 12, the service's website says, "Based on snowmelt alone, [they are] expecting the similar river levels that were seen in April 2019. . . . Based on snowmelt alone, we are expecting rivers to crest between April 19 to 26. Any additional precipitation may result in secondary crests or exacerbate ongoing flooding."

Olivia Dorothy, director for the Upper Mississippi Basin at American Rivers, told Peterson, "We've known for quite some time that climate change is going to be causing these pendulum swings between extreme drought and extreme floods." Peterson adds, "Ice, floods and low water made navigating the Mississippi difficult long before Mark Twain began chronicling its charms and dangers. The dangers are expected to become more frequent."

EPA, Corps again redefine 'waters of the U.S.'; rule includes ephemeral streams and 'significant nexus' test ag dislikes

The Biden administration has redrafted the regulations defining what the Clean Water Act means by "waters of the United States," a topic of controversy for more than nine years, beginning in the Obama administration. It repeals a Trump administration rule that failed in court, but could result in more court action, and the Supreme Court is considering a separate case that could also change the regulatory framework again.

The regulation maintains "longstanding exemptions for farming activities but also trims back an exclusion for prior converted cropland" that was in the Trump-administration rule, Agri-Pulse reports. And it includes "ephemeral streams, which flow in response to precipitation. The Trump administration's 2020 rule categorically excluded ephemeral streams."

"Agriculture interest groups and others said the Biden administration's iteration of the rule will complicate life on the farm," Todd Neeley reports for DTN/The Progressive Farmer. He cites its use of a "significant nexus" test to "establish a scientific connection between smaller water bodies, such as tributaries, and larger, more traditional navigable waters such as rivers." American Farm Bureau Federation President Zippy Duvall said farmers and ranchers "deserve rules that don't require a team of attorneys and consultants to identify 'navigable waters' on their land."

The rule will become effective 60 days after publication in the Federal Register, unless blocked by a court. The Environmental Protection Agency issued the regulation with the Army, whose Corps of Engineers decides whether a parcel of land includes a water of the U.S. The agencies said they would improve consideration of regional differences in applying the rule, and issued a coordination memo with the Department of Agriculture.

Radhika Fox, EPA's assistant administrator for water, told The Associated Press that the rule “balances that protecting of our water resources with the needs of all water users, whether it’s farmers, ranchers, industry, watershed organizations.” AP's Jim Salter and Michael Phillis write, "The new rule is built on a pre-2015 definition, but is more streamlined and includes updates to reflect court opinions, scientific understanding and decades of experience, Fox said. The final rule will modestly increase protections for some streams, wetlands, lakes and ponds, she said." Here is the EPA press release.

The snail darter, a small fish that became focus of big conservation fight, goes off the threatened-species list

A snail darter (Tennessee Valley Authority photo)

The snail darter, a small fish native to the Southeast that was the focus of an initial major battle over the Endangered Species Act, is no longer considered imperiled by federal authorities.

In the 1970s, the new law was put to the test when the last known habitat for the endangered fish was determined to be on a portion of the Little Tennessee River that was about to be flooded by a new Tennessee Valley Authority dam.

A lawsuit followed and construction of the Tellico Dam stopped as the case made its way to the Supreme Court, which sided with advocates for the fish, reports Travis Loller of The Associated Press. The conflict "was portrayed as environmental extremists versus economic realists; in reality, the Tellico Dam was quite small and unneeded to generate electricity." It was eventually built after Congress exempted the dam from the law with a rider on an appropriations bill. But prior to construction, biologists collected the fish and transplanted them to other rivers, and later they were discovered in other streams. Three years ago, biologists petitioned for the fish's removal from federal protection since its population has adequately recovered. It left the list Tuesday.

Snail darters are members of the perch family, and grow to be about 3.5 inches long while eating mainly snails. The Department of the Interior said the snail darter is the fifth fish species, and first in the eastern U.S., to be delisted because of population recovery.   

“There are a lot of people who don’t believe in the Endangered Species Act,” said Jim Williams, the U.S. Fish and Wildlife Service biologist who first listed the fish as endangered. “That say, ‘You know, this is like 'Hotel California'; you can check in, but you can never leave.’ And it’s like, ‘No, you can leave. You just got to get recovered before you leave. And the Endangered Species Act is a vehicle to do that.”

Lawyers: High court likely to reject its and EPA's definitions of 'waters of the U.S.,' but which wetlands will be regulated?

Chantell and Michael Sackett erected these signs early in their
dispute with EPA. (Photo by Keith Kinniard, The Associated Press)

The U.S. Supreme Court not only seems likely to throw out the latest effort to define the meaning of "waters of the United States," the key jurisdictional phrase in the Clean Water Act, it will probably abandon its current jurisprudence on the WOTUS issue when it comes to wetlands.

So said lawyers on both sides Monday after the court heard oral arguments in Sackett v. EPA, in which an Idaho couple is fighting the Environmental Protection Agency's effort to make them protect or replace a wetland on property where they have wanted to build a home for 15 years.

"The court’s fractured 2006 ruling" written by then-Justice Anthony Kennedy allowed EPA to regulate wetlands with “significant nexus” to the nation's navigable waters, on the logic that "any pollution or development causing pollution in a tributary of a navigable river or lake would affect the biology and chemistry of the larger water body," reports Bobby Magill of Bloomberg.

“I just don’t see five votes for the significant nexus test,” Jeff Porter, chair of the environmental law practice at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, told Magill. “The real question is what will replace it.” Wetland protection has implications for developers and farmers.

The high court "searched for a way to clarify which wetlands near federally protected waters fall under federal jurisdiction," Magill reports, "Justice Sonya Sotomayor asked if another test could be used that is more precise than the significant-nexus test. Her questioning offered a clue that the 'significant nexus test is likely gone,” said David Smith, a partner at Manatt, Phelps and Phillips.' The court appears to be pivoting toward using adjacency as one of the ways to define WOTUS, he said."