Shiner Case
NWU Radio Script
5-13-02

Late last month the Arkansas River Shiner Coalition filed a lawsuit in Federal District Court in Albuquerque, N.M., challenging the U.S. Fish and Wildlife Service's (USFWS) designation of critical habitat for the small minnow.

This is just the latest in what may become a string of lawsuits against the USFWS for failure to follow another critical part of habitat designations and that is to study the economic impact of such designations.

This story written by Kay Ledbetter points to some of the USFWS deficiencies in their efforts to designate habitat for the minnow, also called a shiner.

"We believe the Fish and Wildlife Service has violated the Endangered Species Act by failing to conduct a proper economic analysis of their designation of critical habitat for the shiner," said Ross Wilson, Texas Cattle Feeders Association vice president.

"The service is saying basically that there will be no economic impact from designating critical habitat. We believe the opposite is true," Wilson said.

About 98 percent of the total critical habitat area is held in private ownership and habitat designation could restrict land use and groundwater pumping in the listed areas, according to those filing the lawsuit.

"We have maintained all along and continue to maintain that designating critical habitat isn't necessary," Wilson said. "We have also repeatedly said that the government failed to follow its own definition for critical habitat and has failed to use adequate scientific and economic evidence."

USFWS officials in Tulsa, Okla., said they were not aware of the lawsuit at the time it was filed. Officials at the Albuquerque office could not be reached for comment.

USFWS listed areas of critical habitat for the Arkansas River Shiner in four states comprising the Arkansas River Basin, including the Cimarron River in Oklahoma and Kansas; the Beaver/North Canadian River in Oklahoma; the Canadian/South Canadian River in Oklahoma, New Mexico and Texas; and the Arkansas River in Kansas.

The shiner was listed as threatened in November 1998, Wilson said, and at that time, the USFWS determined that critical habitat designation would not provide any additional benefit.

However, USFWS made the habitat designation in March 2001 as part of a court-ordered settlement of a lawsuit filed by the environmental group, the Center for Biological Diversity.

Critical habitat is defined as specific geographic areas that are essential for the conservation and recovery of a threatened or endangered species and that may require special management considerations.

Kent Satterwhite, general manager of the Canadian River Municipal Water Authority, said they too are a part of the coalition and the lawsuit.

"We're concerned about the critical habitat designation, which comes up onto our flood pool on the lake," Satterwhite said. "If the lake were to fill up into the flood pool, they could potentially require us to drain the lake down because of that. That's really our biggest issue."

The coalition the authority has joined represents thousands of farmers, ranchers and other landowners affected by the designation.

Lawyers for the coalition are Michael Klein and Craig Douglas of Smith, Robertson, Elliott & Glen, L.L.P. in Austin, Texas.

Included as defendants in the lawsuit are Gale Norton, U.S. Secretary of the Interior; and Steve Williams, director, U.S. Fish and Wildlife Service.

The coalition consists of the New Mexico Cattle Growers Association, Texas & Southwestern Cattle Raisers Association, Oklahoma Farm Bureau, Kansas Farm Bureau, CRMWA, TCFA, High Plains Underground Water Conservation District,Environmental Federation of Oklahoma, ProAg of Oklahoma, Settlers Ditch Co., Oklahoma Farmers Union, Oklahoma Cattlemen's Association, Hitch Enterprises, Panhandle Groundwater Conservation District, Kansas Livestock Association, North Plains Underground Water Conservation District and Oklahoma Panhandle Irrigation and Agriculture Association.

The Oklahoma Agricultural Legal Foundation is coordinating the coalition's efforts.

Aquatic herbicides
NWU Radio Script
5-20-02

The U.S. Environmental Protection Agency (EPA) in late March finally issued guidance to its regional offices that attempts to clarity the impact of last year's Ninth Circuit Court decision in Headwaters vs. Talent.

The case was brought by two Oregon environmental groups against the Talent (Oregon) Irrigation District in 1998. The suit cited an accidental leak of treated water that ran off into a stream and killed some 92,000 young steelhead, a threatened species.

A federal district court sided with the irrigation district but the Ninth Circuit Court of Appeals overturned the decision. Justices ruled that just because EPA has registered an aquatic herbicide, the use is not automatically exempted from National Pollution Discharge Elimination System (NPDES) permitting requirements under the Clean Water Act (CWA).

The Talent decision also declares irrigation ditches to be "waters of the United States" if the canals are tributary to natural streams with which they exchange water. The decision was not appealed to the U.S. Supreme Court, leaving the ruling standing throughout the Ninth Circuit.

What ensued was concern over how irrigation districts would be able to handle aquatic weeds and those that spring up along the irrigation ditches because of the availability of moisture. These weeds can easily clog ditches, diversion structures and farmer's irrigation systems if left unchecked over the course of an irrigation season.

EPA's guidance is narrow and applies only to pesticide applications made in irrigation canals that qualify for the return flow exemption under the CWA. The return flow exemption applies only to irrigation returns, not to municipal or industrial returns.

The document makes it very that "EPA is not addressing at this time whether other types of direct applications of FIFRA registered pesticides beyond the scope of this exemption are subject to regulation under the CWA. Nor does EPA intend for this statement to have any effect on point source discharges of pollutants subject to regulation under the CWA, including, but not limited to, discharges into an irrigation canal that is a water of the United States."

FIFRA is the Federal Insecticide, Fungicide and Rodenticide Act.

According to Craig Smith, executive director of the Family Farm Alliance, the EPA guidance is a step in the right direction, but it does not resolve all the issues that have been swirling around the Talent decision for the past year. He notes the Family Farm Alliance has met repeatedly with EPA this year and made the case that NPDES permits are not required under any circumstances for the application of aquatic herbicides.

His group's goal is still to have the agency affirm that the legal application of a registered pesticide to waters of the United States is not the release of a pollutant under the definition in the Clean Water Act.

"We need to remember that the Talent case is unique. A number of fish were killed because a weir (a small dam) was left open and water emptied directly into a creek. This was a violation of the FIFRA label. It would not have been avoided even if an NPDES permit had been in place.

"The fear, of course, is that by opening the door, the Ninth Circuit has created extreme uncertainty and may have hung out a welcome sign for future aquatic herbicide legal challenges. In fact, because of this flawed decision based on bad facts , there could be long term impacts to all pesticide programs, not just aquatic applications," said Smith.

A copy of the EPA guidance letter is available on the Alliance's web site at www.familyfarmalliance.org.

Shiner Designation
NWU Radio Script
8-26-02

The U.S. Fish and Wildlife Service last week announced a proposal to designate critical habitat for the Topeka Shiner, a once common Midwestern minnow.

The proposal includes a total of 186 stream segments in Iowa, Kansas, Minnesota, South Dakota and Nebraska. The Nebraska segment targets Taylor Creek in Madison County.

Topeka shiners also occur in Missouri, but because that state's Department of Conservation has developed a management plan for the species, the Service did not propose to designate critical habitat there.

Critical habitat, under the Endangered Species Act (ESA), refers to geographic areas that are deemed essential for the conservation of a threatened or endangered species and that may require special management considerations or protection.

The area being designated in Nebraska is Taylor Creek, a tributary of Union Creek which runs near Madison and eventually empties into the Elkhorn River.

The Topeka Shiner was listed as an endangered species in 1998 and is a fish that typically lives in small to mid-size prairie streams in the central United States that usually run continually, have good water quality and cool to moderate temperatures.

Once common throughout its range, the species at known collection sites had decreased by about 70 percent in the last 40-50 years, according to the Fish and Wildlife Service.

Members of the Topeka Shiner Recovery Team note the fish is considered important because it serves as an indicator of the general health of the aquatic ecosystems upon which fish, wildlife and people alike depend.

As a listed species, the Topeka shiner is already protected wherever it occurs and Federal agencies are required to consult on any action they take which might affect the species, regardless of critical habitat designation. Therefore, the Service said it anticipates little additional regulatory burden will be placed on Federal agencies as a result of any designation of critical habitat.

While the service notes that activities on private lands that do not require Federal permits or funding are not affected by a critical habitat designation, anyone who farms along Taylor Creek and participates in any Federal program must be leery of a potential Federal nexus or connection.

The Service writes glowingly that "critical habitat designation may play a positive role by increasing the awareness of landowners and agency personnel regarding the importance of these stream habitats. This may result in increased opportunities for landowners to implement conservation practices."

Since many special conservation efforts have federal funding attached to them, the potential for a Federal nexus pops up yet again.

In this drought year water use questions are sure to arise. While the service says in a question and answer section on the proposed designation that it would not reduce the amount of water that is available for irrigation on private land, a second sentence notes: "If large amounts of water are used, so as to cause a detrimental impact to the shiner, it would be considered a "take" under Section 9 of the ESA and would require consultation and a permit regardless of critical habitat designation."

What is considered "large amounts?" Who determines how and where to measure "large amounts?"

The just released proposal is in response to a lawsuit brought by the Biodiversity Legal Foundation. As a result of that litigation the Service agreed in a court settlement to propose critical habitat designations for the Topeka shiner by Aug. 13, 2002, and to issue a final rule by Aug. 13, 2003.

The service is now accepting written comments from the public up to 60 days following publication in the Federal Register. Written comments on the Topeka shiner critical habitat proposal should be submitted to the Kansas Ecological Services Field Office, U.S. Fish and Wildlife Service, 315 Houston St., Suite E, Manhattan, Kansas, 66502. Comments may also be sent electronically to fw6_tshiner@fsw.gov.

Public meetings regarding the critical habitat proposal begin next week with the lone Nebraska hearing set for Sept. 12 in Madison at 6 p.m. The exact location will be announced in local newspapers.

Other hearing sites include: Sept. 4 - Manhattan, Kan.; Sept. 5 - Bethany, Mo.; Sept . 9 - Ft. Dodge, Iowa; and Sept. 10 - Pipestone, Minn. Landowners along designated segments need to be sure they participate and attend these hearings and make their feelings known about yet another proposed critical habitat designation.

Title transfers progress
NWU Radio Script
10-28-02

For many years throughout the 17 Western states served with U.S. Bureau of Reclamation projects there has been interest in transferring Bureau projects to local ownership and control.

Through the efforts of the Family Farm Alliance and it's Project Transfer Council, established in 1998, progress has been made in accomplishing the transfer goal in several states. Nebraska will mark the successful completion of one transfer on the Farwell Irrigation District in November.

Two more project title transfer proposals are now before Congress. These include the Fremont-Madison Irrigation District in Idaho and the Pershing County Water Conservation District in Nevada.

The Fremont-Madison Irrigation District was created under Idaho law in 1935 to enter into a repayment contract with the Bureau. The project involved construction of Island Park Dam, Grassy Lake Dam and the Cross Cut Diversion Dam and Canal as well as Teton exchange wells.

In testimony before the Senate Subcommittee on Water and Power Resources, Fremont-Madison Chairman Jeff Raybould said the 40-year contract was paid out in 1979. Fremont-Madison provides a supplemental water supply to some 1,500 water users irrigating about 20,000 acres associated with the original Island Park and Grassy Lake projects.

The district is known for its involvement in the Henry's Fork Watershed Council, a grassroots community forum that for the past nine years has used a non-adversarial, consensus-based approach to problem solving and conflict resolution on a popular regional trout stream.

Fremont-Madison Irrigation District (FMID) originally requested the Bureau for transfer of title from Reclamation to FMID of Island Park Dam, Grassy Lake Dam and the Teton wells, Cross Cut Dam and Canal.

The district worked closely with its partner in the Watershed Council, the Henry's Fork Foundation, to develop a consensus on how a title transfer could come about. At a June 2000 meeting, Reybould said in his presentation, it became apparent there was no opposition to transferring the title of the Cross Cut Dam and Canal, and the Teton wells.

In the end title transfer was only sought to the latter facilities. Cross Cut Dam is a 475-foot concrete gravity weir, built in 1938, that diverts water from Henry's Fork into the seven-mile long Cross Cut Canal, which FMID has maintained since it was built.

Five Teton exchange wells were developed by the Bureau three decades ago. They were to have provided groundwater in exchange for Teton Reservoir storage water but the 1976 Teton Dam failure made the wells the only supplemental water source to irrigate lands affected by the Teton Dam failure.

Lands served by Nevada's Pershing County Water Conservation District are located in a high desert valley at an elevation of 3,900 feet, 90 miles east of Reno and just upstream from the Humboldt Sink, terminus of the Humboldt River.

Funding for the project was approved in 1933 and the project was authorized in 1935. Upstream water rights were acquired and the project's Rye Patch Dam construction began in 1935 after the district transferred its supplemental water rights to the United States and signed a 4o-year repayment contract with the Bureau. The completed reservoir had a capacity of 170,000 acre-feet. The district took over project operation and maintenance in the early 1940s.

On July 11 this year, the Water and Power Subcommittee of the House Resources Committee held a hearing on both HR 4708, the Fremont-Madison Conveyance Act, and HR 5039, the Humboldt Project Conveyance Act.

On July 24 the full House Resources Committee favorably reported both acts, paving way for action on the title transfer yet this fall.

On the Senate side a hearing was held in the Water and Power Subcommittee of the Senate Energy and Natural Resources Committee on July 31 on S. 2556, the Senate companion bill to HR 4708.

If adopted this year the acts would pave the way for title transfer to the districts who have been operating and managing these facilities since the 1920s and 1930s.

Hansen Files Landmark Bill to Restore Original Intent of ESA
Exempts private property, military lands and all plant life from ESA
12-13-02
 
Retiring House Resources Chairman James V. Hansen today filed a bill that would exempt military lands, private property and all plant life from the Endangered Species Act.
 
Hansen called the bill "a shot across the bow from a retiring chairman" and a blueprint for bold changes that reflect what Congress originally intended when it passed the law more than 30 years ago. "I'm just greasing the wheels for change here, giving my colleagues something they can act on swiftly in the next Congress," Hansen said.
 
Growing problems with the ESA cost consumers and taxpayers more than a billion a year in litigation, lost profits, lost jobs and rising operating costs for both government and business,  according to estimates from private groups.
 
In some instances, private property owners can't walk their own property. Some military bases can't use their own land for mission-critical training at a time when America is on the verge of war.
 
Chairman Hansen's statement:
 
"After working with this law during my 22 years in Congress, I've concluded it's the most powerful law in the land. It can be used to thwart everything from the training of our fighter pilots to the farmer's simple desire to plant a crop in his field so he can feed his family.
 
"Right now, in this country, the rights of an endangered fly or a species of seaweed take precedence over national security, commerce and many people's right to the enjoyment of property and the pursuit of happiness.
 
"Our founding fathers would be appalled. This government was founded on a few key concepts, among them the need to provide a common defense and the protection of individual property rights. These days, ESA is tripping up
even that. This legislation moves the federal government in the direction of working cooperatively with private land owners. Under current law, the only option to protect endangered species is legal confrontation.
 
"Congress crafted this law nearly 40 years ago to protect large species like the grizzly, wolf and bald eagle from extinction. Frankly, the ESA hasn't done a particularly good job of protecting anything but lawyers' pocketbooks. Outlawing DDT did more for our wildlife than the ESA has done.
 
"Meanwhile roads have been stalled, homes lost, countless jobs forfeited and thousands of acres locked up because of this ham-fisted law. Republicans and Democrats have long recognized that something needs to be done to fix the Endangered Species Act. I'm just making it easy for everybody next year by dropping a bill now with the three simple changes that could fix this law.
 
"If we exempt private property, military lands and all plants from the ESA, we would, in short order, have a more prosperous and secure nation and still have a healthy and abundant wildlife. We would create thousands of jobs,
jump-start our economy, free up our clogged court system and still protect our wildlife.
 
I'd wager my federal pension you could make these changes and the populations of threatened and endangered species would remain the same. The numbers didn't improve when we started stripping people of their rights. I
doubt they'll go down any once we restore those rights."