Court Strikes Down [@POTUS] Administration Policy That Let Companies Kill Birds — @Audubon

From the Audubon Society (Andy McGlashen):

In a major victory for conservation groups, a federal judge ruled that the Migratory Bird Treaty Act covers unintentional but avoidable avian deaths.

No law degree is required to get the gist of the ruling U.S. District Judge Valerie Caproni handed down on Tuesday. Sure, the decision—the latest blow to the Trump administration’s efforts to weaken environmental laws—is marbled with the typical Latin and legalese. But beginning with its opening nod to the novel To Kill a Mockingbird, Caproni’s ruling in the Southern District of New York makes it plain that the Interior Department’s interpretation of the century-old Migratory Bird Treaty Act (MBTA) isn’t merely flawed—it’s flat-out wrong.

The decision strikes down a 2017 legal opinion issued by Daniel Jorjani, Interior’s top lawyer, which claimed the MBTA did not prohibit “incidental take,” a term for the unintentional but foreseeable and avoidable injury or killing of birds, often through industrial activity. For decades, the U.S. Fish and Wildlife Service (FWS) has used the threat of potential prosecution under the MBTA to convince companies to take steps to prevent killing birds, such as covering oil waste pits or marking power lines to make them more visible to birds in flight.

Under Jorjani’s opinion, even mass killings of birds—such as the 2010 BP oil spill, which killed an estimated 1 million birds and resulted in a $100 million fine against the company under the MBTA—would not be punishable if killing birds wasn’t the intention. Guided by that interpretation, the FWS has opted not to investigate cases of incidental take, and even counseled companies and local governments that they need not take steps to protect birds.

Caproni eviscerated that reading of the law. “It is not only a sin to kill a mockingbird, it is also a crime,” she wrote. “That has been the letter of the law for the past century. But if the Department of the Interior has its way, many mockingbirds and other migratory birds that delight people and support ecosystems throughout the country will be killed without legal consequence.”

he ruling is a major win for six environmental groups and eight states whose three consolidated complaints argued that the law clearly makes it illegal to kill, hunt, capture, or attempt to capture a bird or egg without a permit “by any means or in any manner.” Caproni agreed, ruling that Interior’s position was “simply an unpersuasive interpretation of the MBTA’s unambiguous prohibition on killing protected birds.” The judge also rebuked Jorjani for issuing an opinion without tapping the expertise of federal wildlife officials. “There is no evidence of input from the agency actually tasked with implementing the statute: FWS,” she wrote.

Conservationists were thrilled at the judgment’s forceful endorsement of their position. “The ruling is completely unambiguous on every count. Every rationale the government gave to try to uphold this rollback of the MBTA, the judge shot them all down,” says Erik Schneider, policy manager for the National Audubon Society, which was among the plaintiffs. “The experts had no bearing on [Jorjani’s opinion]. It was a political decision made without their input.”

California Attorney General Xavier Becerra, another plaintiff, said in a statement that the ruling “recognizes the critical importance of protecting our precious wildlife and upholding the rule of law. We hope the Department of the Interior and the U.S. Fish and Wildlife Service learn their lesson and renew their commitment to acting in the best interest of the public.”

People on both sides of the case expect the administration to appeal. “Three circuit courts have already weighed in supporting the opinion underlining the MBTA rule,” said Kathleen Sgamma, president of the Western Energy Alliance—an association of oil and gas companies that lobbied for ending enforcement of incidental take—in an email. “One district court ruling from New York will not be the final word.”

Sgamma’s reference was to other MBTA cases prior to Jorjani’s opinion. Interior cited those earlier rulings as evidence that courts hadn’t settled whether the law covers incidental take and that prosecuting accidental bird deaths was therefore legally dubious. But Caproni found that line of reasoning unconvincing. “Interior’s argument vastly overstates circuit disagreement and blurs the actual boundaries that have been drawn,” she wrote. “Tensions between the circuits certainly exist, but they are not of the magnitude or kind Interior presents.”

Caproni’s decision is a significant blow to Interior’s effort to enshrine Jorjani’s opinion in a formal rule, which would make the allowance of incidental take more difficult for a later administration to reverse. Part of the justification for such a reversal could come from the department’s recent draft environmental impact statement on the proposed rule, which says it is likely to push some bird species onto the endangered species list.

An Interior spokesperson declined to say if the department would continue work to finalize that rule despite the court decision, instead offering an emailed statement: “Today’s opinion undermines a common sense interpretation of the law and runs contrary to recent efforts, shared across the political spectrum, to de-criminalize unintentional conduct.”

Interior also declined to say how the ruling would affect day-to-day enforcement of the MBTA by the FWS. Gary Mowad, who spent 25 years with the FWS and was deputy chief of enforcement, says the agency should return to investigating industrial threats to birds and engaging companies to reduce those threats. “I hope that the Department of the Interior and the Fish and Wildlife Service take the special agents off the leash and let them do their jobs,” he says. “What I fear is that the service always has the ability to establish enforcement priorities, and they may still make this type of mortality a low enforcement priority.”

To buttress Tuesday’s victory, conservationists want Congress to step in and spell out even more clearly that the MBTA does not apply only to killing birds on purpose. The Migratory Bird Protection Act, which has passed a House committee but hasn’t yet received a vote in the full chamber or a companion bill in the Senate, would affirm that the MBTA prohibits incidental take. It also would set up a permitting program whereby companies would be protected from legal action as long as they adopt industry best practices to limit harm to birds. “Congressional action could potentially build on this victory,” Schneider says, “and help provide even greater stability going forward.”

Bald eagle takes down Michigan government drone — NBC News

Adult bald eagle on the Alsek River. Photo credit Wikimedia Commons.

From NBCNews.com (Dennis Romero):

A bald eagle took down a government drone in Michigan, state officials said Thursday.

The bird of prey attacked the Phantom 4 Pro Advanced quadcopter drone about 162 feet in the sky on July 21, “tearing off a propeller and sending the aircraft to the bottom of Lake Michigan,” according to the state Department of Environment, Great Lakes, and Energy.

“The attack could have been a territorial squabble with the electronic foe, or just a hungry eagle,” the department said.

An environmental quality analyst and drone pilot, Hunter King, was mapping shoreline erosion on Lake Michigan with the device, which was flying at 22 mph, when it began twirling out of control and he spotted an eagle flying away, it said.

A bird-watching couple nearby said it saw the eagle strike something and appear to fly away uninjured, department officials said.

A search for the drone days later was unsuccessful. The device was 150 feet offshore, in about 4 feet of Lake Michigan water, the department said.

State officials say #YampaRiver water users are complying with measuring requirement — @AspenJournalism #ColoradoRiver #COriver #aridification #WhiteRiver

Scott Hummer, water commissioner for District 58 in the Yampa River basin, checks out a recently installed Parshall flume on an irrigation ditch. Hummer said most water users in the Yampa are complying with a state order issued nearly a year ago that requires measuring devices. Photo credit: Heather Sackett/Aspen Journalism

From Aspen Journalism (Heather Sackett):

State regulators in the Yampa River basin say most water users are now willingly complying with an order to measure how much water they are taking — an order once greeted with suspicion and reluctance. But challenges to compliance remain, including the cost of installing equipment.

Last fall, the Colorado Division of Water Resources ordered nearly 500 water users in the Yampa River basin to install measuring devices to record their water use. Nearly a year later, most of those water users are embracing the requirement, according to water commissioner Scott Hummer.

“I am fully confident that over 90% of the people who have orders pending have either complied, are in the process of complying or have asked for an extension,” Hummer said. “So we are getting the cooperation and buy-in that we are requesting from our water users. They are understanding why we are doing it, at least in my area.”

Hummer is the water commissioner for Water District 58, which spans 400 square miles and includes all the water rights above Stagecoach Reservoir. He oversees between 350 and 400 diversion structures.

Measuring water use is the norm in other river basins, especially where demand outpaces supply. But the tightening of regulations is new to the Yampa River basin, and the order was initially met with resistance from some ranchers.

John Raftopoulos, whose family ranches along the Little Snake River, a tributary of the Yampa in Moffat County, said he thinks most irrigators are complying. His cattle ranch has about 15 measuring devices, and he has to install a few more to be completely compliant.

“I know (the state) has to use them. There’s no other way they can control the water; they’ve got to have the measuring device,” Raftopoulos said. “You just got to bite the bullet and install them.”

State law requires water users to maintain measuring devices on their canals and ditches, but this rule was not enforced in Division 6 — consisting of the Yampa, White, Green and North Platte river basins — because historically there was plenty of water to go around in the sparsely populated northwest corner of the state. Long seen as the last frontier of the free river, there has been little regulatory oversight from the state when it came to irrigators using as much water as they needed. But that changed in 2018 with the first-ever call on the river.

A call is prompted when streamflows are low and a senior water rights holder isn’t receiving their full amount. They ask the state to place a call, which means upstream junior water rights holders must stop or reduce diversions to ensure that the senior water right gets its full amount.

Although the order for a measuring device comes with a deadline and the threat of fines, Division 6 engineer Erin Light has been lenient with water users and willing to give them extra time to get into compliance. The process to request an extension is simple: A water user can simply email Light.

“If a water user is working with our office, we are not going to go shut their headgate off,” she said. “We are going to work with them.”

Light doesn’t have an exact count on how many water users have complied so far — water commissioners are working in the field this summer and haven’t had time to enter the most current information into the division’s database yet — but as of January, the Yampa had 49% compliance.

“I am not hearing anything (from water commissioners) about concerns of noncompliance. If there were problems, they would let me know,” Light said. “I have a fair amount of confidence that things are going well in all my areas as to compliance.”

This recently installed Parshall flume in the Yampa River basin replaced the old, rusty device in the background. Division 6 engineer Erin Light is granting extensions to water users who work with her office to meet a requirement for measuring devices. Photo credit: Aspen Journalism/Heather Sackett

Financial burden

Still, some worry that the cost of installing the devices — which in most cases are Parshall flumes — is too big a financial burden for some water users. The devices, which channel diverted water and measure the flow below the headgate, can cost thousands of dollars, which adds up for water users who need to install multiple devices.

The Upper Yampa Water Conservancy District and the Yampa-White-Green Basin Roundtable have teamed up in recent months to create a $200,000 grant program to help water users with infrastructure-improvement expenses. According to Holly Kirkpatrick, the communications manager for the conservancy district, water users so far have completed about $3,500 worth of work. That money will be reimbursed through the grant program.

“We expect to see a huge influx of applications as the season comes to an end,” she said.

In March, Light issued notices to water users in the other Division 6 river basins — White and Green — but decided to delay sending orders after talking with some who had concerns over the economic crisis caused by the COVID-19 pandemic.

In a June letter to Light, signed by four water conservancy districts — White River, Rio Blanco, Yellow Jacket and Douglas Creek — representatives said they would be interested in seeking opportunities for financial assistance for their water users. Under the best-case scenario, it would take until spring to secure grant money and begin installing devices, the letter said.

“This year is a tough year to try and ask people to do anything above and beyond what they already have to do,” said Callie Hendrickson, executive director of the White River and Douglas Creek Conservation Districts. “I know (Light is) willing to give extensions, but right now, our folks don’t need that additional financial or emotional stress.”

Scott Hummer, water commissioner for District 58 in the Yampa River basin, points out how snowmelt flows from high elevation down to the valley where the water is used for irrigation. Hummer said most water users in the Yampa are complying with a state order issued nearly a year ago that requires measuring devices. Photo credit: Heather Sackett/Aspen Journalism

Colorado River Compact influence

Some water users have questioned why, after years of not enforcing requirements for measuring devices in Division 6, the state is now doing so. One answer is that more and better data about water use is becoming increasingly necessary as drought and climate change reduce streamflows, create water shortages and threaten Colorado’s ability to meet its Colorado River Compact obligations.

Division 6 has traditionally enjoyed abundant water and few demands, but as state regulators saw with the 2018 call, that dynamic is no longer guaranteed every year. As the threat of a compact call and the possibility of a state demand-management program grow, state officials say the need to measure water use grows, too.

A major unknown is what would happen in the event of a compact call. A compact call could occur if the upper-basin states — Colorado, Utah, Wyoming and New Mexico — were not able to deliver the 75 million acre-feet of water over 10 years to the lower basin states — California, Arizona and Nevada — as required by the 1922 compact. Colorado water managers desperately want to avoid this scenario, in part because it could trigger mandatory cutbacks for water users.

State engineer Kevin Rein said that without knowing how much water is being used, it’s a blind guess as to which junior water users would have to cut back.

“We could see the (cubic feet per second) amount that the water right is decreed for, but we don’t know how much is really being diverted and we don’t know how much is really being consumed, so we don’t know what effect it’s going to have on meeting our compact obligations,” Rein told Aspen Journalism last week.

It’s a similar scenario with a potential demand-management program. At the heart of such a program is a reduction in water use in an attempt to send as much as 500,000 additional acre-feet of water downstream to Lake Powell to help the upper basin meet its compact obligations. Agricultural water users could get paid to take part in the temporary, voluntary program to fallow fields and leave more water in the river.

But before they could participate in a demand-management program, the state needs to know how much water that an irrigator has been using.

“The first thing we need is diversion records,” Rein said. “If there’s no measuring device, no record of diversions and somebody wants to participate, they are simply not going to have the data to demonstrate their consumptive use.”

Since nearly everyone is making progress, Hummer said he doubts that enforcement will reach a point where he has to fine someone for not measuring their water use. Still, the transition is a tough one for an area not accustomed to state government oversight of their ditches.

“We are just dealing with difficult circumstances within the whole Colorado River basin system that dictates change, and folks don’t like change, especially in rural areas,” Hummer said. “But it’s here and it’s not going away. The demand for measurement will become more stringent in the future, not less.”

Aspen Journalism is a local, nonprofit, investigative news organization covering water and rivers in collaboration with The Aspen Times, along with other Swift Communications newspapers. This story ran in the Aug. 15 edition of the Steamboat Pilot & Today and the Aug. 17 edition of The Aspen Times.

The next energy frontier: “It’s crazy to be building 40,000 new homes a year with natural gas (Eric Blank)” — The Mountain Town News #ActOnClimate #KeepItInTheGround

Photo credit: Allen Best/The Mountain Town News

From The Mountain Town News (Allen Best):

‘It’s crazy to build 40,000 houses a year’ with natural gas infrastructure in Colorado

In 2010, after success as a wind developer, Eric Blank had the idea that the time for solar had come. The Comanche 3 coal-fired power plant near Pueblo had just begun operations. Blank and his company, Community Energy, thought a parcel of sagebrush-covered land across the road from the power plant presented solar opportunities.

At the time, Blank recalled on Wednesday, the largest solar project outside California was less than 5 megawatts. He and his team were looking to develop 120 megawatts.

It didn’t happen overnight. They optioned the land, and several times during the next 3 or 4 years were ready give up. The prices of solar weren’t quite there and, perhaps, the public policies, either. They didn’t give up, though. In 2014 they swung the deal. The site made so much sense because the solar resources at Pueblo are very rich, and the electrical transmission as easy.

Comanche Solar began operations in 2016. It was, at the time, the largest solar project east of the Rocky Mountains and it remains so in Colorado. That distinction will be eclipsed within the next several years by a far bigger solar project at the nearby steel mill.

Eric Blank. Photo via Allen Best/The Mountain Town News

Now, Blank has moved on to other things. He wants to be engaged in the new cutting edge, the replacement of natural gas in buildings with new heating and cooling technology that uses electricity as the medium.

“There’s too much benefit here for it not to happen,” he said in an interview.

California has led the way, as it so often has in the realm of energy, with a torrent of bans on natural gas infrastructure by cities and counties. Fearing the same thing would happen in Colorado, an arm of the state’s oil-and-gas industry gathered signatures with the intention of asking voter in November to prevent such local initiatives. An intervention by Gov. Jared Polis resulted in competing parties stepping back from their November initiatives.

In Colorado, Blank sees another route. He sees state utility regulators and legislators creating a mix of incentives and at the same time nudging along the conversation about the benefits.

“It will happen because the regulators and the Legislature will make it happen,” he says. Instead of natural gas bans, he sees rebates and other incentives, but also educational outreach. “Maybe someday you need a code change, but to me public policies are in this nuanced dance. The code change is way more acceptable and less traumatic if it is preceded by a bunch of incentives that allow people to get familiar with and understand (alternatives) than just come in from the outside like a hammer.”

Blank says he began understanding the value of replacing natural gas about a year ago, when conducting studies for Chris Clack of Vibrant Clean Energy about how to decarbonize the economy. “This is just another piece of that. I think building electrification is the next frontier.”

And it’s time to get the transition rolling, he says. It just doesn’t make sense to build houses designed for burning natural gas for heating, for producing hot water and for cooking. Retrofitting those houses becomes very expensive.

“It’s crazy to be building 40,000 new homes a year with natural gas,” he says. Once built for natural gas, it’s difficult and expensive to retrofit them to take advantage of new technology. But the economics of avoiding natural gas already exists.

To that end, Blank’s company commissioned a study by Group14 Engineering, a Denver-based firm. The firm set out to document the costs using two case studies. The study examined a newer 3,100-square-foot single-family house located in Arvada, about 10 miles northwest of downtown Denver. Like most houses, it’s heated by natural gas and has a water heater also powered by natural gas.

A house in the Denver suburb of Arvada was used as a case study. Photo credit: Allen Best/The Mountain Town News

The study found that employing air-source heat-pumps—the critical technology used at Basalt Vista and a number of other no-gas housing developments—can save money, reducing greenhouse gas emissions—but would best be nudged along by incentives.

“For new construction, the heat pump scenarios have a lower net-present cost for all rates tested,” the report says. “This is due to the substantial savings from the elimination of the natural gas hookup and piping. Although net-present costs are lower, additional incentives will help encourage adoption and lower costs across the market.” The current rebates produce a 14% savings in net-present costs.

The same thing is found in the case study of a 28,000-square-foot office building in Lakewood, another Denver suburb.

The study digs into time-of-use rates, winter peak demand and winter-off peak use, and other elements relevant to the bottom lines.

The bolder bottom line is that there’s good reason to shift incentives now, to start changing what business-as-usual looks like. Blank points out that natural gas in every home was not ordinary at one time, either. It has largely come about in the last 50 to 60 years. With nudges, in the form of incentives, builders and others will see a new way of doing things, and electrification of buildings will become the norm.

Colorado’s natural gas pivot

Blank says he began to understand how electrification of building and transportation could benefit the electrical system that is heavily reliant on solar and wind and perhaps a little bit of natural gas when conducting studies last year with Clack at Vibrant Clean Energy .

“I was just blown away by the benefits of electrification (of buildings and transportation) to the electric system,” he says.

Greater flexibility will be introduced by the addition of more electric-vehicle charging and water heating by electricity, both of which can be done to take advantage of plentiful wind and solar during times when those resources would otherwise be curtailed, he explains.

Already, California is curtailing solar generation in late spring, during mid-afternoon hours, or paying Arizona to take the excess, because California simply does not have sufficient demand during those hours. Matching flexible demand with that surplus renewable energy allows for materially greater economic penetration of highly cost-effective new solar.

“In our Vibrant Clean Energy study, with building and transport electrification, we found that Colorado could get from roughly 80% to 90% renewables penetration before the lack of demand leading to widespread renewable curtailment makes additional investments in wind and solar uneconomic,” says Blank.

Electrification of new sectors also expands the sales base for distribution, transmission and other costs. Since the marginal cost of meeting this additional demand is low (because wind, solar, and storage are so cheap), this tends to significantly lower all electric rates.”

Colorado, he says, is unusually well positioned to benefit from this transition. It is rich with both wind and solar resources. Coal plants are closing, electricity costs flat or declining. Consumers should benefit. The time, he says, has come.

This is from the Aug. 14, 2020, issue of Big Pivots. To sign up for a free subscription go to BigPivots.com.

Larimer County kicks off public hearing on #NISP — The Loveland Reporter-Herald

Map of the Northern Integrated Supply Project via Northern Water

From The Loveland Reporter-Herald (Pamela Johnson):

All three Larimer County commissioners began listening to an application for the Northern Integrated Supply Project on Monday, with Steve Johnson and Tom Donnelly declining to step away from the upcoming decision.

“I have no doubts I can consider that application on its merits and weigh it against the land use code,” said Johnson at the start of the public hearing Monday night.

Three organized groups opposed to the project and its associated Glade Reservoir — Save the Poudre, No Pipe Dream and Save Rural NoCO — had asked Johnson and Donnelly, the two Republicans on the board, to step back from the decision.

They claimed that the two commissioners, both in their 12th year of service, have shown “decade-long support and endorsement of the project” and have had outside contact with Northern Water, which has applied for a 1041 permit for its reservoir project on behalf of 15 water providers.

Johnson and Donnelly both stressed they would make an impartial decision on the application during this public hearing, which is scheduled to run across four days, and denied any bias…

Right now, the county is considering its 1041 permit, which allows the county to have input and impose conditions on the reservoir construction and pipeline facilities. County planning staff members recommended approval as did the Planning Commission, by a split vote, and the county commissioners have the final say…

The three-member elected board heard from the planning staff and Northern Water on Monday night during a 3½-hour hearing. Next, they will hold both afternoon and evening sessions to take public comment on Aug. 24 and Aug. 31 before deliberating and making a decision Sept. 2.

To approve the permit, the commissioners must believe that the project meets 12 criteria that are listed in the land use code, including whether:

  • It would negatively impact health and safety.
  • It mitigates construction impacts.
  • It doesn’t adversely affect the environment and natural and cultural resources without adequate mitigations.
  • Alternatives were considered.
  • In evaluating the 1,600-page application, the county staff looked at issues ranging from traffic associated with construction and future recreation to water-quality and air-quality impacts to a plan for recreation on the land surrounding Glade. They dug into everything from truck traffic trips to dust levels to the costs of recreation, as well as the acres of habitat and wetland mitigations compared with the amount lost.

    The staff recommended approval with requirements that include noise, water- and air-quality monitoring and mitigation during construction.

    The three commissioners listened to staff members and representatives of Northern Water during the first segment of the hearing, asking about negotiating easements on private property, associated road work, flow levels in the Poudre River and more.

    All three said they will carefully consider all the input from both Northern Water and residents, who will be allowed to speak at hearings on the next two Mondays. Residents who want to speak during the upcoming sessions must sign up by 10 a.m. Aug. 24 at larimer.org/planning/NISP-1041.

    Aspinall Unit operations update: Releases to turn down 50 CFS on August 17, 2020 #ColoradoRiver #COriver #aridification

    Looking downstream from Chasm View, Painted Wall on right. Photo credit: NPS\Lisa Lynch

    From email from Reclamation (Erik Knight):

    Releases from the Aspinall Unit will be decreased from 1650 cfs to 1600 cfs on Monday, August 17th. Releases are being adjusted to bring flows closer to the baseflow target in the lower Gunnison River. The actual April-July runoff volume for Blue Mesa Reservoir came in at 57% of average.

    There is a drought rule in the Aspinall Unit Operations EIS which has changed the baseflow target at the Whitewater gage. The rule states that during Dry or Moderately Dry years, when the content of Blue Mesa Reservoir drops below 600,000 AF the baseflow target is reduced from 1050 cfs to 900 cfs. Therefore, the baseflow target for July and August will now be 900 cfs.

    Flows in the lower Gunnison River are currently above the baseflow target of 900 cfs. River flows are expected to stay at levels above the baseflow target after the release decrease has arrived at the Whitewater gage.

    Currently, Gunnison Tunnel diversions are 1050 cfs and flows in the Gunnison River through the Black Canyon are around 650 cfs. After this release change Gunnison Tunnel diversions will still be around 1050 cfs and flows in the Gunnison River through the Black Canyon will be around 600 cfs. Current flow information is obtained from provisional data that may undergo revision subsequent to review.