Editorial: WOTUS rule change restores federalism

The usual suspects in the self-styled environmental groups predictably collapsed into palpitating conniptions this past week when the Trump administration announced its final rule rolling back the Obama-era rule that overreachingly defined the waters of the United States (WOTUS) covered by the Clean Water Act of 1972 as every stream, ditch, wetland or muddy hoof print that might ever eventually spill a few drops of water into any rivulet.

Brett Hartl, government affairs director at the Center for Biological Diversity, wailed, “This sickening gift to polluters will allow wetlands, streams and rivers across a vast stretch of America to be obliterated with pollution. People and wildlife need clean water to thrive. Destroying half of our nation’s streams and wetlands will be one of Trump’s ugliest legacies. We’ll absolutely be fighting it in court.”

Massachusetts Sen. Elizabeth Warren, a Democratic candidate for president, fired off a Twitter rant, “Government works great for giant corporations that want to dump chemicals & toxic waste into streams & wetlands. It’s just not working for families that want to be able to drink water without being poisoned. This is corruption, plain and simple.”

But Environmental Protection Agency Administrator Andrew Wheeler, while announcing the rule change at a conference of the National Association of Home Builders in Las Vegas, pointed out, “All states have their own protections for waters within their borders, and many regulate more broadly than the federal government. … Our new rule recognizes this relationship and strikes the proper balance between Washington, D.C., and the states. And it clearly details which waters are subject to federal control under the Clean Water Act and, importantly, which waters falls solely under the states’ jurisdiction.”

The new rule — prepared by the EPA and the Army Corps of Engineers — is to take effect in 60 days, though litigation challenging it is a certainty.

The Obama administration’s 2015 definition of WOTUS covered about half of the nation’s wetlands and many streams that flowed only after heavy rainfall and required farmers and developers to seek expensive and time-consuming permits before turning so much as a shovel of dirt.

The Clean Water Act made it unlawful to discharge any pollutant that could eventually reach navigable waters unless a permit was first obtained. The 2015 WOTUS definition, for example, barred a Minnesota company from mining peat on a wetland 120 miles from the Red River.

Nevada and a dozen other states in 2015 obtained an injunction from a federal judge blocking enforcement of the sweeping WOTUS rule. Then-Nevada Attorney General Adam Laxalt said of the injunction, “This important order, at a minimum, delays implementation of an unwise, unjustifiable and burdensome rule, and protects Nevada’s landowners, farmers and developers from job losses and increased energy prices, until the final rule can be comprehensively fought in court.” The EPA decided the injunction applied only to those 13 states.

The rule change has been in the works since shortly after President Trump took office.

In a speech to the American Farm Bureau two weeks ago Trump talked about the rule change, saying, “And, today, I’m proud to announce that I am taking yet another step to protect the water rights of American farmers and ranchers. Under the previous administration, the Army Corps of Engineers proposed a new Water Supply rule that would give the federal government vast and unlimited power to restrict farmers’ access to water. That’s not a good thing. Is anybody happy with being restricted to water if you have a farm? Please stand up if you are happy about that. Because this authority rightfully belongs to the states, not the bureaucrats in Washington, D.C.”

The nation’s waters are not being turned over to corporations for dumping chemicals and toxins. The power to regulate and protect the water is simply being returned to the states, which under the principles of federalism, is where they rightfully belong.

In fact, Trump’s executive order of February 2017 that started the rule change process is titled: “Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Editorial: Goal of zero emissions on public land a futile gesture

Democrats in the House of Representatives this past week unleashed their latest pie-in-the-sky legislation intended to save the planet from frying like an egg due to catastrophic global warming due to carbon emissions.

The bill, if passed, which thankfully is highly unlikely, would require zero emissions from drilling, mining and other activities on federal public lands by 2040, and immediately halt oil and gas leasing for at least a year, according to a Reuters dispatch.

“To solve our climate crisis we need to solve this problem from two sides,” said Rep. Raul Grijalva, chairman of the Democratic-controlled House Natural Resources Committee. He said the bill would slash emissions from energy production on federal land and preserve vegetation and forests so they may absorb carbon.

“Putting a stop to all new fossil fuel leasing on public lands and waters is a vital first step in stopping the climate crisis, and it’s heartening to see Chairman Grijalva propose a framework that could ultimately achieve that,” Brett Hartl, government affairs director at the Center for Biological Diversity, said in a press release. “But much more is needed to undo the incredible damage the Trump administration has caused through its massive increase in fossil fuel leasing, to say nothing of the decades of reckless fossil fuel leasing that has already occurred.”

The same press release notes that the United Nations Environment Program issued a report this past month stating world governments plan to greatly increase fossil fuels production. So what good will cutting production on public lands do?

Never mind that the brunt of the burden of this foolish venture would fall on the Western states, where the majority of public lands lie and especially on Nevada, 85 percent of whose land is controlled by the federal bureaucracy. This would cost countless jobs and shrink the economies of rural areas of the West. While Nevada is not rich in oil and natural gas, its mining jobs are some of the best paid in the state and mining taxes support many communities.

Meanwhile, the rest of the world is shrugging off its share of the emissions control effort. Of the nearly 200 countries that signed off on the Paris climate accord a couple of years ago, only two have actually met emissions reductions goals, Morocco and Gambia, according to a PBS report in September.

The Wall Street Journal recently reported that China, the top carbon emitter in the world, is adding more coal-fired plants than the rest of the world combined and is building coal plants in other countries, too. The U.S., the world’s second-largest emitter, saw carbon emissions rise 3.4 percent in 2018.

Also, pay no attention to the fact there has been no significant global warming since 2005. Those hottest years on record claims are well within the margin of error.

The bill is a senseless and futile gesture, but Democrats are just the ones try it.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Newspaper column: Lawsuit falsely claims fracking will be devastating

The Luddites are tossing legal wrenches into the economic machinery.

A pair of self-styled environmental groups have filed a lawsuit in federal court in an attempt to block oil and gas leases on tracts on Bureau of Land Management public land, claiming hydraulic fracturing or fracking might somehow jeopardize aquifers and all manner of wildlife.

Fracking is the process of pumping fluid into the ground to create fractures in a rock formation to facilitate the recovery of oil or gas.

In June the BLM offered 196,000 acres for auction in Eureka, Lander and Nye counties, but only 5,800 acres drew any bids. The 10-year leases fetched less than $7 an acre on average and some went for as little as $2 an acre. Another 9,000 acres were sold the next day in a non-competitive sale.

Despite the lack of interest and the uncertainty as to whether any drilling will ever take place, the Center for Biological Diversity and the Sierra Club filed suit, declaring the leases have the potential to devastate the environment.

The plaintiffs are asking the court to “overturn BLM’s unlawful sale and ensure that BLM allow oil and gas leasing and subsequent development on the lands at issue, if at all, only following a thorough environmental review that fully considers the potential impacts of fracking and possible effects to, inter alia, water resources, wildlife, air quality, and seismicity.”

A BLM official told The Associated Press such a sweeping environmental review “would amount to speculation” and that analysis is performed on each site once a drilling permit is actually sought.

The lawsuit cites a 2016 Environmental Protection Agency study, saying that study “concluded that fracking can and has resulted in adverse effects on drinking water resources.”

The suit fails to mention the EPA reported that fracking “can impact drinking water resources under some circumstances,” but “the scientific evidence is insufficient to support estimates of the frequency of contamination.” They said the instances of contamination were small in comparison to the vast number of fracked wells across the nation.

“Turning over northern Nevada’s public lands to Big Oil risks polluting the region’s air, water and soil with toxic chemicals while fueling the global climate crisis,” said Clare Lakewood, an attorney at the Center’s Climate Law Institute, in a press release announcing the suit. “The Trump administration wants to turn public lands into private profits for the fossil fuel industry at the peril of local communities and wildlife.”

Pay no heed to the fact private profits are used to pay salaries of workers as well as taxes.

“At a time when Nevada should be developing its abundant renewable energy resources, the BLM is giving a boost to dirty fossil fuel development in the state,” Lakewood said, revealing more of the group’s real agenda. “Instead of surrendering public lands to oil companies, we must keep fossil fuels in the ground and transition to cleaner, safer sources of energy.”

The lawsuit spells out a litany of woes.

“For example, new oil and gas leases will allow increased fracking and oil and gas development, resulting in noise, visual blight, increased traffic, seismic risks, habitat fragmentation and degradation, increased air pollution, increased water pollution and increased water consumption,” the suit details. “All of these harms will diminish Plaintiff’s members’ ability to enjoy the recreational, spiritual, professional, aesthetic, education, and other activities in and around the Lease Area.”

And as though that were not enough the lawyers speculated about possible effects that are “highly certain or involve unique or unknown risks.”

The Luddites don’t seem to realize that the “fracking industry” has been around since the Civil War and hydraulic fracking has been used since World War II.

More than half of all oil production in the U.S. in 2015, whether using horizontal drilling or not, came from fracked wells. Currently, 46 percent of all natural gas production in the country comes from shale, tight sandstone and coal formations that once were not profitable. Also, 90 percent of all natural gas wells drilled require fracking at some point during production.

Despite the EPA’s diligent efforts to find problems caused by fracking, it found “the scientific evidence is insufficient to support estimates of the frequency of contamination.”

Never let the facts get in the way of a Luddite’s litigation.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Court should stop federal public land agencies from usurping our rights

Sometimes you have to fight fire with fire.

The agencies in charge of federal public land have developed a penchant for “sue and settle” — some friendly environmental group files suit to demand protection of some weed, bug, minnow or rodent and the agency compliantly settles.

The U.S. Fish and Wildlife Service did just this in 2011 settling with the WildEarth Guardians and the Center for Biological Diversity and agreeing to set up a schedule for listing or not listing 251 species under the Endangered Species Act (ESA). 

The deadline for the bi-state sage grouse in Northwestern Nevada was a couple of months ago. The deadline for listing the greater sage grouse, which live in most of the state, is set for September 2015, though a rider on a spending bill by Rep. Mark Amodei may delay that.

Fish and Wildlife listed the bi-state grouse as endangered, but backed off when its scientific data was challenged. Especially telling was that a Fish and Wildlife report found core populations of bi-state grouse had actually increased by between 120 and 144 percent.

A couple of weeks ago a coalition of public and private groups filed their own lawsuit in Nevada’s U.S. District Court challenging the legality of that 2011 court settlement.

The suit was filed by the Nevada Association of Counties, Nevada Mineral Resources Alliance, the American Exploration & Mining Association, and FIM Corp. – a family-owned million-acre sheep ranch in Northern Nevada.

To begin with, the suit points out that Fish and Wildlife agreed in the settlement to either list or not, entirely leaving out a third option required by the ESA — “listing is warranted but precluded because the species at issue has a lower listing priority as compared to other species.”

This error is compounded by the fact Fish and Wildlife has failed to follow the congressional requirement under the ESA that species that are candidates for listing must be re-evaluated once each year using the best scientific and commercial data. The agency in a letter from its regional office reported that it will not be completing this annual review because it is too busy implementing the lawsuit settlements.

The suit claims expensive efforts by the state and local governments to protect sage grouse habitat were ignored.

The lawsuit against Fish and Wildlife also argues that its settlements with the environmental groups violate the Due Process Clause of the Fifth Amendment because they bind nonparticipating third parties, in this case the plaintiff counties and businesses.

“The due process clause of the Fifth Amendment to the Constitution forbids

government practices and policies that violate precepts of fundamental fairness,” the suit says. “Here, FWS’s decision to forego a specific statutory provision, to the detriment of the Plaintiffs, denies Plaintiffs due process and is fundamentally unfair to Plaintiffs.”

The suit further accuses Fish and Wildlife of violating the constitutional requirement of separation of powers by binding the executive branch to settlement that transfers powers of Congress to special interest litigants.

The damages caused by listing of species are not vague and speculative. They are specific and calculable.

The FIM sheep ranch reports that the earlier listing of the Sierra Nevada Bighorn Sheep under the ESA has cost the operation approximately $400,000 per year since 2000, and it believes the listing of the sage grouse will cause similar or greater damage to its bottom line due to grazing prohibitions and other restrictions.

The courts should give this case its urgent attention to curtail further damage to the economy of Nevada.

Newspaper column: States can do a better job of saving endangered species … and jobs

The Endangered Species Act (ESA) of 1973 was intended to protect the grand and noble eagles, bears, whooping cranes and condors, but it has turned into a tool for self-styled environmental groups to wipe productive human endeavors from private and public lands for the sake of protecting bugs, minnows, rodents and weeds.

During a recent online conference put on by Watchdog Wire, a network of citizen journalists, two authorities on the topic who come at it from the free market side suggested the best way to fight the ESA is to embrace its goal — saving species, as reported in this week’s newspaper column, available online at The Ely Times, the Mesquite Local News and the Elko Daily Free Press.

Greater sage grouse

Greg Walcher, president of the Natural Resources Group, noted that in the history of the ESA there have been more than 2,100 species listed, but fewer than half of 1 percent have been taken off — 10 because they were extinct.

He and Brian Seasholes, director of Reason Foundation’s Endangered Species Act project, said the U.S. Fish and Wildlife Service has been pressed by groups such the Center for Biological Diversity and Wild Earth Guardians into listing hundreds of species as endangered. In 2011 the federal agency settled a lawsuit by agreeing to list 757 species by 2018. Among those is the greater sage grouse, whose habitat covers much of Nevada.

Walcher, a former Cabinet Secretary of Colorado’s Department of Natural Resources, said:

“The endangered species protection and recovery was an enormously popular issue in our state, literally at 80-20 polling issue. People overwhelmingly support protecting and recovering endangered species and yet in the just concluded campaign every place we went it seemed like people were mad about it and he got asked about it on the campaign trail over and over and over again by angry people. It just struck us as sort of strange that people are no contentious and bitter, antagonistic and even litigious over issue that we supposedly all agree on.

“So we decided to take a completely different approach in our state — nothing particularly new or different about what was going on in Colorado, but based on three really essential premises. One, that the Endangered Species Act is one of the most powerful laws enacted by Congress when some federal official you’ve never heard of who is five rungs below anyone accountable can declare a species to be endangered or threatened and that kicks in a whole body of federal law that just sort of seems to trump everything else — other federal laws and state laws and local operations and everything else.”

Walcher said the state discovered — with respect to several specific species in Colorado — that there not only was no recovery plan in sight but no one ever really talked about goals or delisting criteria.

Colorado pikeminnow

“In fact, they didn’t have the first clue what that criteria ought to be,” Walcher said. “We started actually with the endangered fish in the Colorado River, because it’s a series of water issues that affect the well being and economy of 30 million people in seven states and is a part of a 75-year-old battle over use the Colorado River in the most arid part of the county where you have to be able to divert water out of that river and use it or you can’t live there.”

Colorado engaged the federal agency in a years-long battle, before it unilaterally spent $5 million to build a hatchery dedicated to endangered fish.

“We began putting razorback suckers and bony-tailed chubs and humpback chubs and Colorado River pikeminnow back in the river by the hundreds of thousands,” Walcher said.

“There came an ah ha moment for me … The Fish and Wildlife Service literally tried to tell us it was illegal to do that,” he said. “They brought in batteries of federal lawyers to tell us the state wasn’t even allowed to possess an endangered species much less raise them in captivity and reintroduce them into the wild. It was all very political, so we responded by saying, well, OK then the governor’s going to have a press conference on the capitol steps and tell the world that you, the federal Fish and Wildlife Service, are opposed to recovering endangered species.”

That stopped that.

Instead of confronting the agenda of environmentalists with arguments about how it affects human endeavors and the economy, Seasholes suggests states show the public how the ESA is harmful to its stated purpose. He noted how the law’s onerous penalties — “$100,000 and/or one year in jail if you harm one species, one egg, one chick, anything, or even if you harm its habitat” — provides a strong incentive for landowners to rid their land of endangered species and their habitat — often called shot, shovel and shut up.

Seasholes stated:

“Those of us in sort of the free market, limited government camp tend to think about environmental issues, especially stuff like the Endangered Species Act, as issues of secondary and tertiary importance. I think that you really need to pay attention to this issue because the Endangered Species Act is going through a phase of unbelievable growth right now. It is going to start touching parts of the country it has never touched, start touching sectors of the economy that have been relatively untouched, especially oil and gas. The Endangered Species Act is increasingly being used as a regulatory means to do other things, whether it is water quality, air quality, global warming. There is global warming slash climate change push with endangered species. So I think that this is something our side has really not paid much attention to its detriment. …

“But we have a winning had to play with this because the Endangered Species Act is so damaging and detrimental to its purpose of preserving endangered species.”

Another example cited by Walcher was how the Forest Service wrote up management plans for forests in Colorado to protect lynx, which had not been found in the state in decades and never amounted to a population of more than 18 even then. But the agency intended to close roads and ban snow mobiles and stop logging, grazing and drilling.


The state imported hundreds of lynx and there are now more than ever before.

Though environmentalists and Fish and Wildlife bitterly opposed the restocking in private meetings, Walcher said, “I can tell you that not one time did any environmental organization or any federal agency ever publicly criticize us for it. … Who’s going to stand up in front of a room full of people and say, ‘You know I don’t really care about those fish I just want to control the water and stop growth in the Southwest.’ Or, ‘I don’t care about the lynx, I just wanted to stop logging.’ Or, “I don’t care about the Gunnison sage grouse, I just want to stop grazing and ranching.’ Nobody can admit to some other agenda, because the public wouldn’t be with them then.”

Environmentalists try to stop job-creating oil and gas exploration in Nevada

There is one species the environmentalists are willing to allow to become extinct — homo economicus.

In its latest salvo in the war on jobs, the Center for Biological Diversity filed a demand that the Bureau of Land Management call off the leasing of 174,000 acres of federal public land near Tonopah and Austin for oil and gas exploratory drilling. The BLM has already cut the lease offer down from 285,000 acres in an effort to protect sage grouse habitat.

Even though the BLM offer only mentions drilling, the CBD screeches that the lease is for fracking, a word the enviros spit out like a vile epithet. Since 90 percent of the wells in this country are hydraulically fractured, they are probably correct in the assumption.

Noble Energy rig in Elko County

“Fracking in other parts of this country has repeatedly shown the practice to be dangerous both for human health and the environment,” skrieks Rob Mrowka, a senior scientist with the Center. “It poses an imminent threat to one of Nevada’s scarcest resources — water — as well as clean air and wildlife habitats. And of course it significantly adds to greenhouse gas pollution and exacerbates climate change.”

Though the CBD formal protest says there are no fracked wells in Nevada, there is in fact one. It was fracked in March in Elko County by Noble Energy and was monitored closely by the Nevada Division of minerals. No problems reported. In fact, a spokesman for the division says there has never been a significant harm to groundwater attributable to fracking on record in this county.

Despite this, the CBD warns, “Hydraulic fracturing, a dangerous practice in which operators inject toxic fluid underground under extreme pressure to release oil and gas, has greatly increased industry interest in developing tightly held oil and gas deposits such as those in the proposed lease area. Fracking brings with it all of the harms to water quality, air quality, the climate, species, and communities associated with traditional oil and gas development, but also brings increased risks in many areas.”

Fracking, which has been used since the 1940s, uses a liquid that is 98 percent water and sand. You may read what was in injected in the Elko well at Fracfocus.org — just search for wells in Nevada and Elko County.

The enviros also overstate the amount water used to frack wells, claiming it takes 2 million to 5.6 million gallons. The well in Elko took about 300,000 gallons and 60 percent of that is reusable. Admittedly the Elko well was not horizontally drilled which would have taken more water.

“The recently released National Climate Change Assessment makes it abundantly clear that the climate of the United States is already being hurt by human-induced changes and that that the situation will only get worse with time,” Mrowka bemoans. “It’s human folly of the worst kind to add to the changes through more fracking, simply for the short-term economic gain of a few companies.”

Actually, that 840-page White House propaganda report was 98 percent toxic falsehoods.

As North Dakota and Texas can attest, oil and gas production creates jobs, something Nevada, especially rural Nevada, needs.

Pay no heed to Chicken Little.


A small subset of sage grouse called threatened, can the rest of the species be far behind?

On Friday the U.S. Fish and Wildlife Service proposed to designate as threatened — under the terms of the Endangered Species Act — the bi-state greater sage grouse found along the northern California-Nevada border, supposedly a distinct population segment of about 5,000 remaining birds. Sage grouse are legally hunted in both states.

The service plans to set aside nearly 1.9 million acres in Carson City, Lyon, Douglas, Mineral and Esmeralda counties in Nevada, as well as land in Alpine, Mono and Inyo counties in California, as critical habitat. This could lead to restrictions on mining, grazing, farming, fences, oil and gas exploration, roads, power lines, wind turbines and solar panels, various forms of recreation and more — costing jobs and economic development.

A Mono Basin sage grouse. (National Park Service photo)

After the decision is published in the Federal Register the service will take comments for 60 days.

The Center for Biological Diversity claims the population of this group of grouse has declined by up to 70 percent, though it does not say over what time span.

Though this proposal is only for a specific subset of sage grouse, it does not bode well for economic prospects in the rest of the state or the West — where one estimate of its population as of 2007 was 535,000 — if such a designation is extended to cover all sage grouse habitat.

The Center for Biological Diversity’s Nevada ecologist Rob Mrowka said, “These birds are facing so many threats that Endangered Species Act protection really can’t come too soon. … Because the bi-state sage grouse exists at the periphery of the species’ range and is genetically unique, it contains characteristics that could be critically important to the survival of the greater sage grouse as a whole, particularly in light of climate change.”

Sounds similar to claims about the Northern Spotted Owl, whose designation as endangered devastated the Northwest timber industry, though there are doubts about its uniqueness, as they have been interbreeding with more aggressive barred owls.

The claimed threats to the sage grouse include grazing and invasive species — such as cheatgrass, pinyon and junipers — that crowd out the birds’ preferred sagebrush. Additionally, transmission lines provide a convenient perch for predators such as ravens.

The Fish and Wildlife Service wrote in its proposal Friday that it is preparing “an analysis of the economic impacts of the proposed critical habitat designation and related factors. We will announce the availability of the draft economic analysis as soon as it is completed, at which time we will seek additional public review and comment.”

Why the agency is doing this is unclear, since the Endangered Species Act says economic factors cannot be considered when determining whether to list a species as threatened or endangered, but must be “based solely on the best scientific and commercial data available.”

Of course, pay no heed to the fact that sage grouse were very seldom spotted until European settlers arrived with their sheep and cattle to trample and fertilize the land and develop water resources. The matter of “historic population” depends entirely on what date is picked for a baseline.

The Sagebrush Ecosystem Council, created by the Nevada Legislature this past session, is trying to find ways to convince Fish and Wildlife that sage grouse and its habitat can be protected without resorting to listing under the Endangered Species Act, which creates so many arbitrary restrictions on land use. It has its work cut out for it, and had better redouble its efforts.

The handwriting is on the wall, and the handwringing will soon follow.