Nebraska Habitat Conservation Coalition
PURPOSE The Nebraska Habitat Conservation Coalition was formed in 2001 to represent the interests of NHCC members concerning the designation of critical habitat for piping plovers in Nebraska. The Coalition provides authority, services, resources and studies.
*The NHCC represents the interests of the
members in proceedings before all agencies, courts, and any administrative,
legislative, executive, or judicial bodies concerning or affecting the
designation of critical habitat for piping plovers in Nebraska by the US Fish
& Wildlife Service.
*Explore alternatives to critical habitat designation.
*Inform and educate the public regarding critical habitat designation.
*Educate the public about the impacts on people and our natural resources.
COALITION
ACTIVITIES
--Retained services of Budd-Falen Law Office
based in Wyoming.
--Filed Comments and Petition for Extension after the proposed designation was
announced.
--Coordinated with members of Congressional delegation and other interested
parties.
--Filed a 60-Day Notice of Intent to Sue on Oct. 25, 2002.
--Monitored the National Academy of Science's peer review process for the Platte
River Cooperative Agreement.
--Filed lawsuit in Federal District Court in Nebraska on Febr. 14, 2003.
Lawsuit states that the FWS used inadequate science, questionable benefits to
the species, legal inadequacies, and failed to show the economic impact of the
designation.
--Currently exploring alternatives to critical habitat, including the
possibility of development of a Habitat Conservation Plan.
CRITICAL HABITAT DESIGNATION
In 1985, the piping plover was listed as threatened by the US Fish &
Wildlife Service under the Endangered Species Act. Eleven years later, in
1996, the Defenders of Wildlife petitioned the Service to designate critical
habitat for the piping plover. The Service answered the petition by
proposing critical habitat for the Northern Great Plains population in
2001. Critical habitat was officially designated on Sept. 11, 2002, in
five states- Nebraska, North Dakota, South Dakota, Montana, and Minnesota.
UPDATES
February 23, 2006
The
Nebraska Habitat Conservation Coalition, which Central Platte NRD is a member of, won its case in Federal District
Court against the U.S. Fish and Wildlife Service regarding piping plover
critical habitat in Nebraska last October.
The judge ordered the Service to redo their economic analysis and
re-assess their critical habitat designation.
After the judge ruled in the case the NHCC filed to recover its
attorney’s fees and in January the judge awarded the NHCC approximately
$175,000 in fees. However, any
payment of fees was put on hold when the federal government filed a notice of
intent to appeal the case to the 8th Circuit Court of Appeals.
Czaplewski
also briefed the CPNRD Board on the recent release of a report by the Keystone
Center (a Colorado-based think tank) that responded to a request by the U.S.
Senate’s Environment and Public Works Committee regarding Endangered Species
Act (ESA) reform.
The Keystone report is generally supportive of ESA reform similar to many
components in the recently passed House bill (TESRA) and may foster ESA reform
efforts in the Senate.
October 28, 2005
On October 13,
U.S. District Judge Lyle Strom ruled that the U.S. Fish and Wildlife
Service wrongly declared several Nebraska rivers as critical habitat for the
threatened piping plover. In 2002,
the Service designated critical habitat for the bird, on parts of four rivers in
Nebraska, as well as areas in Minnesota, Montana, North Dakota and South Dakota.
In Nebraska, the Service designated a total of 440 river miles, including
the Platte River from Lexington to the Missouri River and stretches of the Loup,
Niobrara and 120 river miles of the Missouri River adjacent to Nebraska.
The NHCC (CPNRD is a member) filed suit in federal District Court in
2003, arguing the critical habitat designation was not based on sound science,
was not done in accordance with the law and did not include an adequate economic
assessment.
Endangered Species Act Ron Bishop reported that the House of Representatives has passed a reauthorization bill, which many believe to be a positive change. The Senate is currently reviewing the bill. Bishop reported that the National Water Resources Association (NWRA) and the National Endangered Species Act Reform Coalition (NESARC) are currently requesting letters in support of improving and updating the ESA. The Board requested staff to draft a letter in support of changes.
February 26, 2004
Mark Czaplewski, biologist, gave an update on the suit
filed against the US Fish & Wildlife Service (FWS) at the February board of
directors meeting. On January 14th, the Nebraska Habitat Conservation
Coalition filed a motion with the U.S. District Court in Nebraska to add several
FWS documents to the Administrative Record for the case (the set of documents
they relied on to make their critical habitat designation for piping plovers).
On February 13th, the Service responded to the motion
conceding that the confidential protection for three of the documents had been
waived. They continue to argue that
several other documents are protected from disclosure.
These filings will change the Court-approved case schedule, but NHCC
legal counsel continues to believe the case could be wrapped up this calendar
year.
May 22, 2003
Mark Czaplewski, biologist, gave a status report at the Central Platte
NRD's May board meeting on the Platte River Cooperative Agreement’s May 7th
Governance Committee meeting in Denver. He
said discussions focused on the issues and requirements for an extension of the
Cooperative Agreement, which is scheduled to expire at the end of June but may
be extended for 6 months by the Governance Committee and further extended by the
signatories. Major issues debated were: the length of any extension,
milestones, funding, and activities the US Fish and Wildlife Service believe
should be undertaken to maintain Endangered Species Act compliance.
Czaplewski also reported on the U.S. Fish and Wildlife Service’s response to the lawsuit filed in February by the Nebraska Habitat Conservation Coalition (NHCC), regarding designation of piping plover critical habitat. Czaplewski reported that the Service filed an “Answer” with the U.S. District Court in Nebraska on April 28, 2003. On that same day the Defenders of Wildlife (the group who initially sued the Service to designate critical habitat) filed a motion with the court to intervene in the case. He said next step in the litigation is for the court to hold a scheduling conference that will establish deadlines for filing of the administrative record, briefings and related activities.
The Board was briefed on the May 6th
National Academy of Sciences public meeting in Kearney.
Czaplewski said
invited federal and State of Nebraska representatives made presentations on
their perspectives of Platte River hydrology, geomorphology and endangered
species issues, concluding the meeting with a brief open public forum.
The NAS panel toured the river by air and met in closed sessions on May 7th
and 8th. He said future
public and closed meetings are being planned for this summer.
Mark
Czaplewski, biologist, reported at the recent Central Platte NRD board meeting
that the National Academy of Sciences (NAS) will hold a public meeting in
Kearney on May 6th at the Kearney Community Theater from 9:00 a.m. to
6:00 p.m. with closed meetings and a tour on May 7-8th.
Most of the public meeting will involve presentations by “witnesses”
invited by the NAS who are primarily federal and state employees.
An open public forum is part of the meeting agenda with 20 speakers
allowed statements of two to three minutes each at the end of the day.
It is not clear whether or not presenters recommended by the Downstream
Water Users and others will be given a chance to present at future NAS meetings. The NAS has provisionally selected the members of the
review committee. The 13 committee
members were selected from across the United States and include biologists,
geomorphologists, environmental/civil engineers, an environmental lawyer,
natural resource planners/managers, and economists.
Czaplewski said with the calendar closing in on the Cooperative Agreement end date of June 30, 2003, the Governance Committee has formed a Working Group to address the possibility of an Agreement extension. The Governance Committee can extend the Agreement until the end of the year; any additional extension would need the sign off of the Signatories.
March 28, 2003
Czaplewski, Central Platte NRD biologist, reported at the Central Platte
NRD board meeting that the U.S. Fish and Wildlife Service and Department of the Interior
attorneys have yet to respond to the lawsuit filed by the Nebraska Habitat
Conservation Coalition on February 14th. The
Coalition lawsuit seeks to invalidate the designation of critical habitat based
on several key points, including the fact that the Service’s economic analysis
is inadequate, because of the Service’s disregarded for existing and ongoing
management efforts directed at piping plover conservation, and because of
various legal shortcomings. The
federal agencies have until the middle of April to respond and will likely use
all the time they have available. Central Platte NRD’s legal counsel is recommending, and
NHCC legal counsel concurs that Central Platte NRD, at the appropriate time,
file briefs with the Nebraska District Court as an “amicus” or “friend of
the court” in support of the NHCC lawsuit.
A motion was made and approved by Board to authorize the filing of an amicus (friend of the court) brief with the District Court in support of the Nebraska Habitat Conservation Coalition filing at the appropriate time. The motion was made on the contingency that Central Platte NRD legal counsel verify the legality of the NRD filing as an amicus while being a member of the NHCC lawsuit.
February 28, 2003
Mark Czaplewski, biologist,
reported on actions taken at the Nebraska Habitat Conservation Coalition’s
meeting in Grand Island on February 11th.
Czaplewski said the Coalition approved the filing of a lawsuit against
the U.S. Fish and Wildlife Service regarding their recent designation of piping
plover critical habitat. The
lawsuit was filed on February 14th before the U.S. District Court in
Nebraska.
Two recent actions prompted the filing.
First, the timing of the lawsuit is important since a separate 60-Day
Notice of Intent has been filed by the Coalition to Protect the Missouri River,
concerning piping plover critical habitat as well as several other issues. Since
priority would be given to the first complaint filed, the NHCC felt it was
important to have the matter addressed in Nebraska.
The NHCC hopes the Missouri River Coalition will consider intervening in
the matter in support of the NHCC filing.
The NHCC expressed no desire to become involved in the broader Missouri
River operational issues laid out in their Notice of Intent.
Second, the Service, working with the Governance Committee of the Platte
River Cooperative Agreement recently executed a contract with the National
Academy of Sciences (NAS) to review and evaluate the science relevant
to the habitat needs of the piping plover and other target
species. Despite NHCC efforts
to promote review of all areas designated in Nebraska, the NAS will only review
critical habitat on the central Platte River.
The NHCC lawsuit seeks to invalidate the designation of critical habitat based
on several key points, including the fact that the Service’s economic analysis
is inadequate, because of the Service’s disregard for existing and ongoing
management efforts directed at piping plover conservation, and because of
various legal shortcomings.
January 6, 2003
Czaplewski
reported that the Coalition continues to seek support for the independent review of
plover critical habitat across the State. He
said the Department of Interior and some Governance Committee members have shown
support for expanding the review of the plover critical habitat to all of the
areas designated in Nebraska, not just on the central Platte River.
According to a recent opinion by attorneys from Fennemore Craig, non-discretionary federal programs will not trigger Section 7 consultations under the Endangered Species Act if the Platte River Cooperative Agreement is not implemented. There was concern whether all conservation and commodity payment programs provided a federal nexus under the Act, which may have made individual landowners vulnerable to consultations and regulations if they received any type of payment through government programs. Although commodity payments could not be taken away, discretionary programs designed to provide federal funding, such as Farm Loan Programs, are subject to regulations requiring application of Section 7. The analysis was prepared for the Nebraska Water Users’ Inc. and the Central Platte NRD. The board passed a motion for the Central Platte NRD to join a coalition to develop an economic study of the proposed Program and to administer funds if requested.
November 25, 2002
The
Nebraska Habitat Conservation Coalition’s legal counsel filed a 60-Day Notice
of Intent to Sue the U.S. Fish & Wildlife Service on October 25, 2002,
regarding their designation of piping plover critical habitat in Nebraska.
Mark Czaplewski, biologist, said
the Coalition developed a set of peer review questions related to endangered and
threatened species in Nebraska, coordinating their efforts with the Nebraska
Downstream Water Users. He reported
that since the filing of the 60-Day Notice, the Dept. of Interior raised
concerns regarding the Coalition’s involvement in the peer review process,
prompting the Coalition to postpone the filing of the lawsuit pending the
implementation of the peer review process.
Brian Barels, DWU representative to the CA, updated those
present on the status and schedule of the CA peer review process and noted
concerns voiced by the Service and Department of the Interior regarding
involvement in the CA peer review process given the NHCC filing of the 60-Day
Notice. A motion was made by Brian
Barels, seconded by Kent Miller to have the Coalition:
1) continue to monitor the NAS peer review process of the CA;
2) work with our congressional delegation, the State of Nebraska and the
Department of the Interior regarding including the remainder of Nebraska
critical habitat for the piping plover in the NAS review;
3) have legal counsel prepare the necessary documents to file the NHCC
lawsuit noted in the 60-Day Notice of Intent to Sue;
4) have the Executive Committee meet on a monthly basis to review the
status of factors that could affect that lawsuit and, if they believe conditions
warrant, schedule a Coalition meeting to consider filing of the lawsuit;
and
5) following completion of the NAS peer review process for the CA,
schedule a meeting of the Coalition to consider filing of a lawsuit regarding
designation of critical habitat for the piping plover in Nebraska.
Motion passed. The date of the next
meeting of the NHCC was not scheduled. The
next meeting would be scheduled by the Executive Committee based in part on the
schedule of the NAS peer review process.
September
11, 2002
On Wednesday, September 11, the U.S. Fish & Wildlife Service issued their
final ruling on piping plover critical habitat for the Northern Great
Plains. As anticipated, the critical habitat changes in Nebraska from what
was initially proposed are minimal.
CHANGES:
** Platte River- upstream boundary moved
from Cozad downstream to Lexington 252 miles; was 266 miles in initial proposal
** Niobrara River- upstream boundary moved
from near the Cherry-Brown County line downstream to the bridge near
Norton 120 miles; was 129 miles
NO CHANGES
** Loup River- (68 miles) or on the Missouri
River (120 miles shared with South Dakota).
TOTAL CHANGES
Total miles for Nebraska changed from the original
proposal of 463 miles to a total of 440 miles (plus the 120 miles on the
Missouri River).
See details on the Fish & Wildlife Webpage (Click on Endangered Species, News Releases.)
NHCC's Response to the
Designation of Critical Habitat for the Piping Plover:
A
federal agency’s decision to designate hundreds of miles of land along the
Platte, Loup, Niobrara and Missouri rivers as critical habitat for a threatened
species of shore bird is likely to cost Nebraskans more money, but isn’t
likely to improve the birds’ chances of survival, according to a coalition of
33 Nebraska organizations.
The U.S. Fish and Wildlife Service (FWS)
announced Wednesday (September 11) that it is designating critical habitat for
the threatened piping plover along 440 miles of the Platte, Loup and Niobrara
rivers, and another 120 miles of the Missouri River that is shared by Nebraska
and South Dakota.
But the habitat designation’s costs to
Nebraska are likely to far outweigh any benefits, according to a spokesman for
the Nebraska Habitat Conservation Coalition, which has been monitoring the issue
for months.
The critical habitat designation also falls
short of what is required by the federal Endangered Species Act, according to
Ron Bishop, president for the Nebraska Habitat Conservation Coalition. Bishop is
manager of the Central Platte Natural Resources District at Grand Island.
Bishop said Fish and Wildlife failed to
consider efforts already under way in Nebraska to help the piping plover, and
the agency erred in including many acres that are not suitable habitat for the
birds. “The benefits of the designation are questionable,” Bishop said.
“Fish and Wildlife has failed to subject its decision to the scientific rigor
required by federal law. Yet, the costs of this designation will be borne by
thousands of Nebraskans for many years.”
These costs would affect electrical customers,
municipalities, people who pay property tax, people who own land along these
rivers, irrigators, businesses, and others. Of the affected land, 97 percent is
owned by private landowners. More than half of Nebraska’s population lives in
counties where FWS has designated critical habitat for the plover.
The Nebraska Habitat Conservation Coalition is
composed of 33 Nebraska entities from both the public and private sectors,
including natural resources districts, municipalities, irrigation and power
districts, and other organizations.
Bishop said many of these groups have been
involved for years or decades in efforts to conserve natural resources,
including habitat for endangered species and other types of wildlife.
For example, the states of Nebraska, Wyoming and
Colorado, along with the Department of Interior, are working under the framework
of the Platte River Cooperative Agreement to develop a program to benefit four
target species, including the piping plover. Two utilities, Central Nebraska
Public Power and Irrigation District and Nebraska Public Power District, have
developed additional plover habitat on the Platte River in central Nebraska. And
Central Platte Natural Resources District holds in-stream flow water rights on
the central Platte River, some of them for the piping plover.
The Habitat Conservation Coalition filed
comments with the Fish and Wildlife Service earlier this year, when FWS proposed
the critical habitat designation. In addition to the points listed above, here
are some of the issues raised by the coalition:
The
Endangered Species Act requires the Fish and Wildlife Service to make several
specific findings when designating critical habitat for a threatened or
endangered species. The Fish and Wildlife Service has failed to make these
findings. For example, the federal law requires FWS to make a finding that the
proposed critical habitat is in need of “special management considerations.”
But FWS has failed to show that current management of the habitat is inadequate.
The law also requires that any designated
habitat must be beneficial to the species. But the agency failed to make this
finding.
The Fish and Wildlife’s decision also falls short of complying with the
Endangered Species Act in deciding what areas it will designate as critical
habitat. It appears that FWS listed nearly any area in Nebraska where plovers
could, possibly, someday breed, and areas never known to be used by the bird.
Much of the area designated is not suitable as habitat for the plover.
The Fish and Wildlife Service’s analysis of
impacts is inadequate. The
agency is required to evaluate economic impacts and “any other relevant
impact,” but the economic analysis overlooked consultation costs, the costs of
modifying and mitigating projects in the critical habitat areas, and various
cumulative impacts that build up over such a large geographic area.
List
of members and partners of the Nebraska Habitat Conservation Coalition:
Members:
Central Nebraska Public Power & Irrigation District
Central Platte NRD
City of Grand Island
City of Lexington
Dawson Public Power District
Farwell
and Sargent Irrigation District
Lewis and Clark NRD
Loup Public Power District
Lower Elkhorn NRD
Lower Loup NRD
Lower Platte North NRD
Middle Loup Public Power & Irrigation District
Nebraska Public Power District
North Platte NRD
North Loup River Public Power & Irrigation District
Papio-Missouri NRD
South Platte NRD
Southern Public Power District
Tri-Basin NRD
Twin Loups Reclamation District
Twin Platte NRD
Upper Big Blue NRD
Upper Elkhorn NRD
Upper Loup NRD
*NRD= Natural Resources District
Partners:
Nebraska Airboaters Association Nebraska Association of Resources Districts
Nebraska Cattlemen Nebraska Corn Growers
Nebraska Farm Bureau Federation Nebraska Off Highway Vehicle Association
Nebraska REA
Nebraska Water Users
Click below to view the Comments Submitted By the Coalition
Comments Submitted on January 25, 2002
Additional Comments Submitted on May 17, 2002
Contact:
Mark Czaplewski