THE U.S. ENDANGERED SPECIES ACT

The U.S. Endangered Species Act of 1973 (ESA) is the most far-reaching wildlife statute ever adopted by any nation. The National Academy of Sciences has issued a detailed report on Science and the Endangered Species Act.

Recommended reading: Science and the Endangered Species Act (1995) by the Board on Environmental Studies and Toxicology, Commission on Life Sciences, National Research Council.

Unlike previous legislation, the act was not designed to protect only those species that were economically useful or potentially useful to man; it is based on the idea that species are of "aesthetic, ecological, educational, historical, recreational and scientific value to the nation and its people". The ultimate purpose of the Endangered Species Act is to bring about the recovery of endangered and threatened species. The Supreme Court has interpreted the act to mean that the value of species cannot be calculated, and that listed species should be protected whatever the cost.  Summary of how the Act works.

Should we protect everything?  Read The Butterfly Problem

The ESA (as amended in reauthorizations) requires the following:

It requires the Secretary of the Interior (through the U.S. Fish and Wildlife Service or, for marine species, the National Marine Fisheries Service) to identify and publish lists of species that are endangered (in imminent danger of going extinct) or threatened (likely to become endangered in the foreseeable future). The lists include both U.S. and foreign species, and include invertebrates and plants. A decision whether to list must be based solely on the biological evidence; economic factors are not relevant at this stage. Anybody that can provide adequate evidence can make a proposal for listing. Endangered species are given full legal protection against exploitation: they cannot be "taken ". "Take" means harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in such conduct. Such activities directed against animals are illegal even on private land. (In the case of plants, the ESA prohibits taking of endangered species only if it is prohibited by state law, and it usually is not; this is a major weakness of the act). The federal government is prohibited from engaging in activities that could jeopardize the continued existence of listed species or adversely affect their designated critical habitat.  A recovery plan must be developed and the recovery of the species must be monitored. The species or its products cannot be exported or imported. Foreign Species may be included in the endangered or threatened species lists under the ESA.  This is meant to prevent the importation of wildlife products into the U.S. from contributing to the extinction of species outside our borders.  It also fulfills the United States' obligation under agreements such as CITES to enact legislation to protect species listed by international treaties (see Lecture 5). In 2000 the US listed the Australian Koala as Threatened across its entire range, causing embarrassment for the Australians who have failed to give the unique animal adequate protection against the timber industry and other threats.

An amendment was passed in 1978 creating an "Endangered Species Committee" (sometimes called the "God Squad" or "Extinction Committee") which consists of the secretaries of Agriculture, Interior, and the Army, the Chairman of the Council of Economic Advisors, the heads of the Environmental Protection Agency and the National Oceanic and Atmospheric Administration, and a representative from the affected state. This committee can be convened to resolve conflicts when all other efforts have failed, and it can grant exceptions to the ESA when no "reasonable and prudent alternative" exists, when the project is of national and regional significance, and when the benefits "clearly outweigh" those of alternative actions. Thus, the committee has the power to condemn species to extinction. 

Species, Subspecies, and Evolutionarily Significant Units

The original ESA applied only to named species and subspecies.  However some species exist as multiple reproductively isolated population segments that probably represent enough evolutionarily significant genetic diversity to make all of the segments worth preserving.  Anadromous fish populations, each associated with a specific river to which they return to spawn, represent some of the main examples of such subdivided species, even though it is often uncertain how much of this diversity is genetically based.  Because of these examples, in 1978 the ESA was amended to allow listing of "distinct population segments" of vertebrates, but the rules for determining what constitutes a distinct population were not defined. To clarify the situation for Pacific salmon, the National Marine Fisheries Service (NMFS) has devised its own policy, stipulating that a salmon population (or group of populations) will be considered "distinct" for purposes of the ESA if it represents an evolutionarily significant unit (ESU) of the biological species. An ESU is defined as a population that 1) is substantially reproductively isolated from other populations of the same species and 2) represents an important component of the "evolutionary legacy" of the species, meaning that it might provide the genetic raw material for future evolutionary changes.  Since 1994, the federal government has listed 26 populations of West Coast salmon and steelhead as endangered or threatened.

State Endangered Species Acts

Most states also have their own laws for Endangered Species Protection, some of which are stronger than the federal statutes.  The California Endangered Species Act was reauthorized 9/97 with several provisions that some environmental groups consider weakening, others consider strengthening.  The changes:
1.  Make it easier for developers to destroy endangered species habitat provided they set aside equivalent acreage elsewhere for protection
2.  Grant farmers immunity from prosecution if they accidentally kill endangered species during "routine" agricultural practices.

California law allows the designation of a species as Fully Protected, which is a greater level of protection than is afforded by the California Endangered Species Act. Such a designation means the listed species cannot be killed, nor can its habitat be destroyed if this would ultimately lead to its death or destruction. Fully Protected Species has been given to the Southern Sea Otter, California Condor, California Least Tern, Golden Eagle, Peregrine Falcon, Bighorn Sheep, Salt Marsh Harvest Mouse and many others.

Successes and Failures of the Endangered Species Act

The Center for Biological Diversity has identified 631 species and subspecies that have been driven to extinction in North America since 1642.  Limited funding makes it impossible to list them as fast as they are going extinct.  Over 1700 species have been listed, but recovery plans are in place for only about half of them.  There is a huge backlog of 239 candidate species waiting to be listed, and 24 on a "warranted but precluded" list. In August 2001 there were 66 active listing petitions, and 37 species proposed for listing (map).

Opposition from farmers and developers also slows down listings.  A current example is the black-tailed prairie dog, which has been reduced to less than one percent of its historic range of 100 million acres and is in grave danger of extinction. Ranchers are opposed to listing because they feel the rodents compete with their cattle for forage.

Ten California species have been listed since a moratorium on ESA listing was lifted in 1996. The first one was the California red-legged frog. Two butterfly species and six plant species, as well as a fairy shrimp have been added to the list. One of the only two habitats for the fairy shrimp in Orange County is a vernal pool at Fairview park in Costa Mesa! In March 1998, after a long fight by the Sierra Club, the Peninsular Bighorn Sheep was listed as endangered.  This listing has major ramifications for resort and golf course developments in the California desert.  The population of this subspecies of sheep numbered 1,200 in 1971, 600 in 1991, and 280 in 1997.  This listing was followed by the Sierra Nevada Bighorn Sheep in February 1999.

In August 2001, the Interior Department agreed to speed up listing of 29 animal and plant species, as part of a deal to avoid legal challenges from conservation groups.

El Segundo Blue

The USFWS has not yet been able to routinely monitor the status of listed species or the effects of recovery plans. However, a report released in 1990 indicated that 41% of species then protected were either stable or increasing in number. On the other hand, 38% were declining, 2% were extinct and 19% were of uncertain status. The species that have recovered best are those that were threatened by single factors like over-exploitation or pollution. Those threatened because of habitat loss (the vast majority) have not recovered.

More than 80 species have gone extinct, and another 170 may have gone extinct, while awaiting listing. An example is the Columbia River Coho salmon, which the USFWS delayed listing in the 1970s while trying to negotiate new regulations for hydroelectric power in the Pacific Northwest. It became extinct in the wild in 1990 (some are still raised in hatcheries).   

31 species have been delisted: seven due to extinction; 12 due to scientific revision, additional discoveries or amendment of the ESA.  Of the species listed as "recovered", six are located outside of the U.S. (and therefore receive no direct protection from ESA), and three bird species recovered due to the banning of DDT.  There are only three remaining success stories: the California Gray Whale (1994), American Alligator (1987), and Rydberg Milk-vetch (1989).

- Less than one percent of all listed species have recovered under the ESA.

Delisting of recovered species would be evidence for success of the ESA, and makes for good publicity for the government agencies responsible for it.  So in May, 1998 Interior Secretary Bruce Babbitt announced: 

"Our new policy, to emphasize delisting, could alter the terms of debate over the future of the landmark 1973 conservation law. For we can now finally prove one thing conclusively: The Endangered Species Act works. Period. In the near future many species will be flying, splashing and leaping off the list. They made it. They are graduating."  The press release covering his speech also announced that USFWS will make a priority to delist and downlist more than two dozen birds, mammals, fish and plants that have achieved or are moving towards recovery.

Unfortunately, the Secretary and his staff had not paid attention to the details.  Most of the species concerned were being considered for downlisting for reasons other than recovery.  Five of them were being considered for delisting because they were extinct!

The banning of DDT helped the recovery of three listed bird species.  For example the Peregrine Falcon reached its minimum in about 1970, when there were only 39 known pairs in the lower 48 states and none left east of the Mississippi River.  The decline was caused mainly by eggshell thinning as a result of DDT spraying (see Chapter 14).  Both the American and the Arctic subspecies were added to the list of endangered species in 1970, and at that time falconers were asked to donate their few remaining Falcons to a captive breeding program.  20 chicks were hatched in 1973, and some birds were released into the wild in 1974.  An estimated 6,000 captive-bred birds were released in 34 states between 1974 and 1977.  The species reached over 1960 mating pairs in 1997, and the species was delisted in 1999.

The state legislatures of Wyoming, Idaho and Montana are developing management plans for the Grizzly bears in a 13,300-square mile area in and around Yellowstone National Park, with the intention of removing the bear from the endangered species list.  It would be only the second mammal species to be delisted, after the California Gray Whale in 1994.  The grizzly bear was listed in 1975 when the number of animals in the Yellowstone population reached a low of 200-250.  Now they have reached somewhere between 350 and 600 animals; part of a total of about 1200 when the other populations in the northern Rocky mountains are included.  The bear now survives on only 2% of its historic range.

Opposition to the listing has noted that wilderness areas that are home to these animals will have reduced protection from oil and gas development, logging, real estate development, new roads and recreational off-road driving.  The management plans could also allow hunting of grizzlies.

Monitoring is required for delisted species.  In the case of the Peregrine Falcon, this includes: annual occupancy surveys; the number of young produced; monitoring contaminant levels; and monitoring egg shell thickness.  After five years the species could be relisted if necessary.

Listed species that became extinct. 

Tecopa Pupfish (1982)* Longjaw Cisco (1983)* Blue Pike (1983)* Santa Barbara Song Sparrow (1983)* Sampson's Pearly Mussel (1984)* Amistad Gambusia (1987) Dusky Seaside Sparrow (1990)

* These may have been extinct before the Act was passed in 1973

The federal government spent over $6 million buying up 6,200 acres of habitat in Florida for the Dusky Seaside Sparrow, but inept management led to extinction of the bird in 1987. Listing does not guarantee survival!  

Although it has been protected as an endangered species since 1967, the Attwater's prairie-chicken has suffered a decline in numbers from 2,254 birds in 1975 to only 42 in 1996. The 8000-acre Attwater Prairie Chicken National Wildlife Refuge was established specifically to help save this highly endangered species.

Role of ESA in Habitat Protection

The ESA protects habitats by requiring that federal agencies, through their own actions or actions funded or permitted by them, must not jeopardize the continued existence of an endangered species or its habitat. Before any federal agency can begin a project or provide funds or permits for a project that might affect a listed species or its habitat, they are required to consult with U.S. Fish and Wildlife or NMFS over ways to avoid jeopardizing endangered species.

Out of over 1,989 proposed federal projects affecting endangered species in 1987-91, only 23 were rejected because of threats to endangered species. Modifications to the project were required in 350 cases. In the vast majority of cases, consultation has resulted in the incorporation into a project of measures to mitigate effects on listed species or their habitats. Such measures include acquisition, restoration and revegetation of habitat to compensate for any that is lost, establishment of trust funds for conservation, off-site reintroduction, provision of funds for research, and so on.

Groups demand safe haven for Sonoran pronghorn, ENN Daily News -- 12-31-1999

As a result of the ESA focus on individual endangered species, habitat is often protected because it contains an endangered or threatened species. For example:

California gnatcatcher - coastal sage scrub in southern California. Least Bell's Vireo - riparian wetlands in southern California. Stephens kangaroo rat - desert areas of Riverside County Louisiana black bear - hardwood forests in Louisiana. Red-cockaded woodpecker - eastern pine forests. Mount Graham red squirrel - mountaintop forest islands in Arizona. Delta smelt - Sacramento River delta Northern spotted owl - old-growth forests in the Pacific Northwest.

Salmon and the ESA

Recent changes in policies regarding the ESA have come about as a result of controversies regarding salmon in the Pacific Northwest.  There are five species of salmon in the Pacific - chinook, sockeye, coho, pink and chum, and the closely related steelhead and cutthroat trout. But for each species, there are many different stocks, each one representing those fish that return to a specific spawning ground on a specific river. Stocks are equivalent to subspecies, and each one is considered a distinct genetic entity under the Endangered Species Act. Over the last century, Pacific salmon have disappeared from about 40% of their historical breeding ranges in Washington, Oregon, Idaho, and California, and many of the surviving populations are severely depleted. 107 separate stocks have become extinct, and 89 others are at high risk of extinction. This is partly due to overfishing, but also partly due to alteration of their habitats.

Recommended reading: Upstream: Salmon and Society in the Pacific Northwest

These fish are anadromous. They swim up river as far as 900 miles inland to spawn, then the young fish make their way back out to the open ocean where they mature.  After several years of growth and maturation, the adult fish swim back up the river to the spawning grounds where they were born.  They then spawn and die.

One of the main reasons for salmon depletion has been the interruption of their life cycles by the construction of dams for the purposes of hydroelectric power, control of river flow to improve shipping, and water diversion for irrigation.  Dams prevent upstream migration of adult salmon, but this can be overcome to some extent by the construction of fish ladders in which the salmon jump up a long series of waterfalls.  More serious is the blockage of downstream migration of young salmon.  Dam engineers have provided bypass systems, and the salmon are being transported by barge and truck.  Unfortunately, this has not prevented the disastrous decline of salmon in west-coast rivers.  One of the major problems is that, in addition to presenting barriers to both upstream and downstream migration, dams also transform cold, fast-flowing rivers into a series of deep, warm, slack-water reservoirs.  Salmon have evolved under the original conditions of the river and may not be adapting well to the new hydrology.

Columbia-Snake Basin salmon and steelhead

In the past, countless thousands of sockeye salmon made the journey up the Snake river in Washington State; they were so abundant that they "churned the waters" in their Idaho spawning run and provided a primary food source for both miners and American Indians throughout the Snake river. Now this stock is almost extinct; only four fish reached the spawning grounds in 1991. It was listed as an Endangered Species in 1991. Other salmon stocks have suffered the same fate; in 2002 twelve stocks in the Columbia-Snake Basin had been listed as either endangered or threatened. 

The many government agencies responsible for the Columbia-Snake Basin considered several alternative plans for restoring the salmon resources.  One of the most controversial proposals, supported by many biologists, was the removal of the four dams on the lower Snake river that blocked the migration of salmon to and from their spawning grounds in Idaho.  The federal government' rejected that proposal and came up with a plan to carry out many technological improvements.  The plan to restore Columbia-Snake Basin salmon and steelhead (the Biological Opinion on the federal dams in the Columbia - Snake River Basin) was approved in December, 2000.  The plan details 199 specific measures to be implemented over 10 years to protect salmon and steelhead from the adverse impacts of the federal dam system, and to restore depleted species. 

The Salmon Plan required action on 129 measures during the first year, 2001. The measures included barging and trucking young salmon around the dams, increasing river flows using storage water from Idaho, and spilling water over the dams to aid fish passage.   Unfortunately, the Bush administration failed to implement more than 75% of these measures.  This resulted in the lowest in-river out-migration survival rate for spring/summer chinook salmon (30%) and steelhead (4%) since they were listed under the ESA. Both of these 2001 migration rates were 20% lower than in 2000. 

Then Salmon Plan is due to be reviewed in 2003 and if it is found to be unsuccessful, the federal agencies will be forced to consider more effective measures, including the previously rejected plan to remove the four dams on the lower Snake River. 

Oregon's Coastal Salmon Restoration Initiative

In April 1997 the National Marine Fisheries Service listed Coho salmon in southern Oregon and northern California as a threatened species, but delayed announcing protective regulations in order to give the States time to develop their own Coho conservation plans.  Oregon  developed The Coastal Salmon Restoration Initiative (CSRI) and it has been accepted by the Department of the Interior as meeting the requirements of the ESA.  This represents the first time the federal government has relinquished its ESA enforcement powers to a State.  The CSRI is the result of a three-year effort during which the State sought input from Oregonians from all walks of life, academic, business, and governmental, as well as from non-Oregonians during the drafting and revision process.  The Oregon program is built around four elements: coordinated agency programs; community based action; monitoring; appropriate corrective measures.  Its stated goals are to: 

Retain state and local management flexibility for lands, waters and fish.      Remove the need for a federal threatened or endangered species listing if possible.      Process will rely on grassroots involvement, ownership and commitment in a cooperative     environment.      Focus on a voluntary versus regulatory approach.      Reestablish sport and commercial fisheries as an important part of our economy.      Manage hatchery and wild fish in a compatible manner.      Review and evaluate existing fish management and habitat protection laws, rules, regulations and policies.      Recognize salmon as an integral part of our cultural identity.      Serve as a model for inter-government and community-based collaboration and partnership.      Ensure that all partners will share in addressing the problems and creating solutions.

In order for the CSRI to be effective, local, state, and federal agencies must find a way to work together, private citizens must contribute both time and assets, and funding for monitoring and corrective actions must be made available by the State.   It is not yet clear whether these requirements will be met. 

California still has not developed its plan for coho conservation.

The Klamath Basin Water Wars, 2001-2002

The Klamath was once the third-richest salmon river on the west coast, but now it supports only a small fraction of the historical salmon numbers. The fish that do use the river often die stranded in dried-up streams or suffocate in water that is too warm and too low in oxygen for their survival

Commercial fishermen working off the Northern California coast landed 4.27 million pounds of salmon from 1976 through 1980, but in 1998 they landed only 58,000 pounds. Recreational salmon fishing also declined, by 80% in 13 years. The salmon-dependent Yurok tribe ran a successful commercial fishing operation in only five of the last 15 years.  The collapse of the fishery has been blamed on many factors:

• overfishing
• increased regulation
• competition from foreign fishing fleets
• damming of rivers
• logging, which disturbs the forest soil and clogs streams with silt that sullies spawning grounds
• diversion of river water for agriculture

The main source of salmon for the Northern California fishery is the Klamath river basin on the border of California and Oregon.  The Klamath has recently become an ESA battleground because the diversion of water to irrigation projects has become a serious threat to Coho salmon and other endangered species inhabiting the river.

Coho salmon have declined due to multiple factors including overfishing, habitat degradation, reduced access to spawning areas, changes in hydrologic regime, warming of the river, and introduction of hatchery-reared Coho.

Endemic freshwater fishes of the Klamath basin include the shortnose sucker and the Lost River sucker, which live primarily in lakes and were abundant enough during the 19th and early 20th centuries to support commercial fisheries. These species declined so much during the 20th century that in 1988 they were both listed as endangered species. Like the Coho, their numbers were also reduced by many factors including degradation of spawning habitat, deterioration in water quality, overfishing, introduction of exotic species, blockage of migration routes, and entrainment in water management structures. 

The U.S. Bureau of Reclamation has been diverting Klamath River water since 1907, when they launched a huge irrigation project to help farmers grow crops on the arid plain along the upper Klamath river. By 2000, 1,400 farms were using Klamath river water to grow crops in this region. Two dams were built in the early 1960s on the Trinity River, the largest and most important salmon tributary on the Klamath. 75% of the water in the Trinity river is now used to irrigate California's Central Valley. Since the river was dammed, Chinook salmon numbers have declined by 90%.

Following the listing of the suckers and Coho, in 2001 the U.S. Fish and Wildlife Service and the National Marine Fisheries Service issued biological opinions in which they made several recommendations to help recovery of the listed fish species in the Klamath.  Most controversially, both agencies called for water levels in the lakes to be increased to protect the suckers, and flow rates in the river to be increased to protect the Coho salmon.

In 2001, commercial fishermen and environmentalists sued federal agencies to force them to allow enough water to flow downstream in the Klamath basin to provide the necessary environmental conditions for young Coho salmon.  Unfortunately this happened during a record drought, and providing water for the salmon meant cutting off water to 1,200 farmers in the Klamath irrigation project. This caused serious loss of production, economic disruption and several bankruptcies. The Bush administration is trying to find a way to provide $175 million in aid for the Klamath Basin, to be included in the 2002 farm bill.

A report, from a panel of the National Academy of Sciences, then found problems with the methods used by federal officials to justify protecting salmon and other rare fish.  Although many biologists believe that higher water levels are essential for salmon survival and reproduction, the report found that higher flows might actually harm Coho salmon by sending warmer water from upstream lakes into the river.

In Spring 2002, another court case resulted in the opposite outcome, with water to be diverted for irrigation as in years prior to 2001.  This decision came after the Bush Administration intervened to argue that scientific findings were not adequate to justify sending water downstream for the salmon.  Farmers celebrated the outcome, while hundreds of young salmon were stranded in pools of water separated from the depleted river. 

Opponents of the ESA are using the National Academy report to argue that the decision to withhold Klamath river water from farms in 2001 was wrong, and to support reform of the ESA: 

"The ESA has become a wrecking ball in this country, devastating personal finances and regional economies. We must reform this law. We must protect species and people. This law does neither.

“We have recovered few - if any - species because of the ESA. Meanwhile, the ESA has cost private citizens, local governments and regional economies billions of dollars over its 30-year life. The cost estimate for the Klamath Basin debacle alone is in excess of $135 million, according to researchers at UC-Davis. That’s unconscionable. It’s time we reform this law, grounding it in sound science, not political ideology.”

"Sound Science" in ESA Decision-making

The Klamath Basin conflict has led to the introduction of two Bills designed to improve the scientific basis for listing decisions.  Under the current ESA the listing agency is required to use the "best scientific and commercial data available". Proponents of reform argue that the best available data may not be good data, and that more absolute standards are required. Federal agencies are, of course, open to using better science, but they also find that the proposed new procedures would delay listings by as much as 120 days.

Hatchery Salmon and the ESA

Salmon decline in the Pacific Northwest began in the 1800's due to overfishing, damming of rivers and damage by the timber industry to streambeds needed for spawning.  Biologists hoped to build up salmon populations by establishing hatcheries, where eggs could be hatched and the young stages protected from predators, then the fry could be released so they could make their way back to the sea and continue the cycle.  For many decades the hatcheries were unsuccessful, but by the 1960s the technology had improved so that enough adults were returning to supply the eggs for the next generation.  Now hatcheries are being used to bolster salmon populations all over the world.  Hatcheries in Canada, Japan, Russia and the United States release up to 6 billion salmon per year, and this represents about 25% of all young salmon entering the North Pacific.  This has not prevented salmon populations from declining to a small fraction of historic levels, but it has probably slowed the decline in many areas.  However, biologists are increasingly concerned that the hatchery-raised fish are genetically distinct from the wild salmon, and that they may be hurting rather than helping wild salmon. 

Why are hatchery-raised salmon different from wild salmon?

Although hatchery-raised salmon are similar in appearance to their wild relatives, biologists mark them at the hatchery by clipping a fin, so that they can be recognized when caught.  This makes it possible to compare the survival rates and other biological parameters of the two kinds of fish. 

One difference is that the hatchery fish, having been provided with ideal conditions and food, can be three times the size of wild salmon when released, so they can outcompete the wild fish for food. But a more serious problem is that the hatchery-raised fish are becoming genetically distinct because they are being subjected to different kinds of genetic selection.  They are protected from predators, so there is no natural selection for predator avoidance during the young stages.  Some tend to search for food near the water's surface, where they would find food pellets in the hatchery.  And hatchery managers may have selected for other features by collecting eggs from only the biggest, or the brightest-colored, or the earliest-returning adults. Some studies indicate that hatchery salmon are less efficient foragers, less territorial, less fearful of predators and less variable in size and shape than wild fish. Critics of the practice claim that the hatchery salmon have become domesticated and may no longer be well adapted for a complete life cycle away from human help.  Government policy has incorporated this philosophy and requires protection of naturally spawning stocks and the ecosystems they inhabit, regardless of the size of the hatchery populations.

Since 1994, 26 populations of West Coast salmon and steelhead have been listed as either endangered or threatened. This includes Coho salmon along the Oregon coast, listed as threatened in 1998 despite a strong hatchery program.  After the listing and to give the wild species a better chance at survival and to prevent interbreeding with genetically distinct hatchery fish, officials in Oregon have closed down hatcheries and tried to kill off hatchery-raised fish by clubbing them to death as they swim upstream.

Some property-rights activists argue that government biologists have exaggerated the differences between hatchery and wild salmon, and that hatchery fish have interbred with wild salmon for so long that most "wild" salmon have some hatchery-born ancestors. On this basis the Pacific Legal Foundation and the Alsea Valley Alliance sued and forced delisting of the coastal Oregon Coho salmon. A U.S. District Judge ruled in September 2001 that hatchery and wild Coho were genetically the same, and that since large numbers of hatchery fish can be produced the wild fish should be delisted.  The order was stayed by a federal court in December, pending an appeal by conservation groups.

The decision on coastal Oregon Coho may have established an unfortunate precedent.  NMFS is facing lawsuits and petitions challenging other salmon listings, and has decided to reconsider all but one of the 26 listings for West Coast salmon and steelhead.  NMFS is also re-evaluating its procedures for consideration of hatchery fish in ESA listing determinations.  Draft policies will be available for public comment in Spring 2002.

Critical Habitat

In 1978, Congress required that ESA listings be accompanied by the designation of critical habitat, which may not be destroyed. Even private property can be designated critical habitat. Economic factors may be considered when designating critical habitat. As of 5/5/02, 152 U.S. species have designated critical habitat. 

Arroyo Toad

In February 2001, the USFWS designated 182,360 acres of land as Critical Habitat for the endangered Arroyo Toad, including 12,000 acres in Orange County.  The critical habitat was much less than the 500,000 acres proposed last year by USFWS.  Biologists were disappointed because the protected habitat did not include several important streams on the U.S. Marine Corps base at Camp Pendleton, and failed to include upland habitat, which is used extensively by the toad.  Read the Final Rule for examples of how the USFWS responds to public comments on habitat issues.

The critical habitat for the Arroyo Toad includes some land in the San Mateo Creek drainage, which is in the path of the proposed Foothill South toll road. The preferred route for the toll road would bisect San Onofre State Park and cross part of the critical habitat for the toad.  Other sensitive species that would be impacted by the toll road in Southern Orange County include the coastal California gnatcatcher, tidewater goby, Riverside fairy shrimp and one of the last three known populations of the Pacific pocket mouse. San Mateo Creek is also home to the only known population of steelhead trout south of Los Angeles.

Also in February 2001, USFWS proposed designating 301,010 acres in San Diego and Riverside counties as critical habitat for the endangered Quino Checkerspot butterfly.  This species was once common in Southern California, but is reduced to only a few hundred individuals in San Diego and Riverside counties. Orange County was not included in the critical habitat proposal, but supported populations in the 1920s and 1930s so may be used for establishing two additional populations as part of the recovery plan.

Unfortunately, the USFWS has not been able to designate critical habitat as fast as species are getting listed. In fact, critical habitat has been designated only for about 12% of all listed species.  Conservation organizations are finding it necessary to either petition (e.g. Sonoran pronghorn antelope) or sue the USFWS to get them to move forward on designating critical habitat.

A recent court case involving the Southwestern Willow Flycatcher (New Mexico Cattle Growers Association, et al. v. United States Fish and Wildlife Service, et al.) has invalidated the USFWS approach to conducting economic analyses for critical habitat designations. Previously the Service had used a "baseline approach", meaning they analyzed the economic impacts that are predicted to occur specifically because of the proposed critical habitat designation.  The impacts of the ESA listing itself were not included as part of the impact of critical habitat designation.  The court rejected the baseline approach, ruling that the Service must consider "all of the economic impacts of a critical habitat designation, regardless of whether those impacts are attributable co-extensively to other causes." The decision is limited to the jurisdiction of the Tenth Circuit, but USFWS has stated that it intends to comply with the court's ruling throughout the country.  Other Critical Habitat designations are coming under fire for similar reasons:  Piping Plover in the central Platte Valley; 19 populations of salmon and steelhead trout in the Pacific Northwest.

Another Critical Habitat designation was recently thrown out for a different reason.  The USFWS listed the Arizona population of the cactus ferruginous pygmy-owl as endangered, and designated critical habitat for the population.  In designating critical habitat, the Service relied on incomplete data and included areas that they considered suitable for occupation by the owl, in addition to areas known to be occupied.  The court ruled that the agency decision did not comply with the ESA requirement to use "the best scientific data available", and set aside the critical habitat designation.

Problems with the Endangered Species Act

Many conservationists have started to think that the ESA approach is not adequate to the task of preserving biodiversity, even in this country. They see it having the following weaknesses:

Narrow focus

The number of endangered species is just too large for them to be successfully dealt with one at a time. It has cost about $4 million per species for complete recovery. Rough estimates indicate it would cost $4.6 billion over ten years to provide for recovery of all listed and candidate species to the level where they could be delisted. This is about 8x the amount that USFWS has in its budget (about $63 million per year).

For political reasons, the Act has been used primarily to protect the charismatic megafauna, even if only a population or subspecies is under threat. In 1991, over half of the dollars spent were used on seven of 639 listed taxa; all seven were subspecies or populations. At the same time, many full species of invertebrates or plants are left without protection. 270 plants and 9 invertebrates together received 5% of total funding.

Previous Secretary of the Interior Lujan ("Nobody's told me the difference between a red squirrel, a black one or a brown one") has even questioned whether subspecies should be listed. But subspecies contribute to biodiversity just as species do, and many of them probably would evolve into species if they had the chance.

Loopholes

One legal loophole available to listing agencies is to declare a listing "warranted but precluded".  This is ostensibly to allow them to postpone action on species deserving protected status yet not in imminent danger of extinction, in order to focus first on other critically imperiled species. Environmental groups have sued the Fish and Wildlife Service for using this provision in the case of the lynx, which is abundant in Canada but endangered in the U.S. The Interior Department agreed to protect the species under a settlement reached in February 1998.

Timing

The ESA approach is an "emergency room" approach. Species are not given protection until their numbers are reduced to the extent that they are already on their way to extinction. The number of individuals left at the time of listing has been about 1000 for animals and about 100 for plants. When they have gone this far, recovery is very difficult, not guaranteed, and very expensive.

Economic Impacts of ESA listings

The ESA has become unpopular with commercial interests because of some well-publicized cases in which preservation of a single endangered or threatened species resulted in restrictions being placed on commercial activities.

It has been especially unpopular when it has resulted in loss of jobs. For example, the listing of the Northern Spotted Owl resulted in loss of jobs in timber-dependent communities in the Pacific Northwest. This resulted in a reduction in the tax base, so reductions in the budget for schools and public services.

Listing can also impact the ability of a landowner to realize the maximum profit from an investment. For example:

• Development of Dana Point Headlands is being restricted because of the presence of the pacific pocket mouse.
• More than 200 development projects in the Mohave desert of Kern County have been delayed or canceled because they affected the habitat of the Mohave Ground Squirrel (on the State Endangered Species List).
• Hotel projects at Mammoth Lakes have been held up because providing additional water supplies would impact the Owens Tui Chub (a small fish)
• A Chinese bamboo farmer near Bakersfield has been blocked from developing his farm because of the presence of three endangered species - the Tipton kangaroo rat, the blunt-nosed leopard lizard, and the San Joaquin kit fox.  But read more facts about this case!

There are many other examples. Consequently, development interests are out to get the Endangered Species Act:

• American Petroleum Institute
• American Forest Council
• American Mining Congress
• Ocean Trust
• Mountain States Legal Foundation (Denver)
• Putting People First (Colorado)
• Concerned Shrimpers of America
• American Farm Bureau
• National Cattlemen's Association
• Numerous developers

For these reasons, development interests (mainly the "Wise Use Movement") are arguing that economic factors should be considered when species are being considered for listing. This is included in many recently proposed amendments to the ESA.

Sometimes the government gives in to pressures from developers and allows destruction of habitat even when an endangered species is absolutely dependent on it. An example is the Alabama Beach Mouse, a small, big-eyed mouse that inhabits beachfront sand dunes along the Alabama Gulf Coast, whose habitat is being destroyed for a resort development.

Some ESA opponents are arguing that restricting the use of private property is essentially a "taking" of that property, and should not be done without compensation.

In spite of its weaknesses, the US Endangered Species Act is probably the strongest of any nation. Even Canada is far behind this country in this respect - it is still in the process of debating its first law to protect endangered species. A final proposal that was released in May 1996 protects only aquatic species, some migratory birds, and any species on federal lands. This leaves 60% of the 254 listed species without any protection!

House Committee Agrees to Exempt Pentagon from Some Environmental Laws

The Bush Administration's "Open Season" on America's Wildlife

Habitat Conservation Plans

Most ESA-mandated conservation efforts have focused on the preservation of individual species.  Habitat conservation plans (HCPs) are increasingly being used as an alternative approach to conservation.  HCPs are typically produced by states in collaboration with landowners.  They set aside large areas of habitat to protect multiple species (both endangered and not endangered), and in return the landowners are allowed to develop outside the HCP area even if it means killing endangered species.  They typically require a developer to set aside or to construct habitat to mitigate for destroyed habitat at a ratio of 1:1.  HCPs have recently undergone a surge in popularity - There are now over 350 HCPs in various stages of development, and over 200 have been approved. 

An example of an HCP that appears to be working well is the Natural Communities Conservation Planning (NCCP) Program, an effort by the State of California, together with private and public partners, to protect Southern California coastal sage scrub habitat. This habitat and its associated species are being destroyed very rapidly to make room for housing, highways, and commercial developments. The Central/Coastal NCCP was approved by the Orange County Board of Supervisors in April 1996.   The program creates reserves of more than 38,000 acres and protects 42 species including the three "target species" (the federally listed California gnatcatcher, the Coastal Cactus Wren, the Orange-throated whiptail lizard), and 39 additional species, most of which are not on federal or state endangered species lists (including three mammals, eleven birds, six reptiles, three amphibians, and nine plants).

The recently approved San Diego Multi-Species Conservation Plan includes a reserve system of 164,000 acres.

Another example of a large-scale habitat conservation plan:  The Interior Columbia Basin Ecosystem Plan.

Most conservation biologists believe that the HCP process is the best way to try to conserve biodiversity when habitats are confronted with massive human population increase and sprawling development.  Developers and politicians are also generally in favor of the approach.  BUT there are many serious concerns about the way it is being handled.  The Natural Resources Defence Council has published a report analyzing the effectiveness of the NCCPs. In San Diego, the Southwest Center for Biological Diversity has been analyzing the motivation behind the San Diego HCP and the effectiveness of this plan).

State HCPs

The HCP approach is often being used by States to take over from the federal government the control of their natural resources.

Jaguar Conservation.  

Protection of the jaguar in the southwestern United States represents an example of State conservation plans fulfilling ESA requirements.   In 1972 the jaguar was listed as endangered from the U.S.-Mexican border throughout Central and South America.  Historically, however, the jaguar has occurred throughout the U.S.-Mexico border region, with reports of the species as far east as Louisiana and inland to northern New Mexico and the Grand Canyon.  Although jaguar sightings are rare in the U.S., (there have been only 16 confirmed in the last 150 years in Arizona), this region is considered to be a legitimate part of its range and in July 1997 the big cat was listed as endangered in its U.S. range in Arizona, New Mexico and Texas.  The U.S. Fish and Wildlife Service has decided to accept the State plans being developed by New Mexico and Arizona rather than to implement federal regulations. Since no habitat within U.S. borders is necessary for the jaguar's survival, no critical habitat will be defined.  It is thought that identifying and publishing critical habitat location might actually hurt the cat's survival chances by encouraging poaching in those areas.

Reauthorization of the Endangered Species Act:

The Endangered Species Recovery Act (ESRA)

Congressmen George Miller (D-CA) and Frank Pallone (D-NJ) introduced the Endangered Species Recovery Act (ESRA: HR 4579) in May 2002 with 76 bipartisan cosponsors. The ESRA strengthens protections for listed species by focusing on recovery and implements the recommendations by the National Academy of Science. Some of the key provisions are to: 
-improve the scientific basis for listing species and other decisions
-use independent scientists to peer review large-scale habitat conservation plans 
-allow scientists, not politicians, to identify necessary recovery and delisting steps. 

ESRA is supported by the Endangered Species Coalition, comprised of more than 430 conservation, scientific, fishing, and business organizations.   

ESRA HELPS LANDOWNERS BY: 

1. PROVIDING TAX INCENTIVES FOR GOOD STEWARDSHIP. 

ESRA incorporates tax proposals endorsed by both property-rights and conservation organizations. It provides Estate tax deferrals for lands enrolled in "Endangered Species Conservation Agreements" (ESCA), in which landowners would agree to implement proactive conservation measures (such as prescribed burning or tree planting) not already required by law.

2. GIVING PLANNING ASSURANCES WITHOUT IGNORING SCIENCE.
ESA has a "No Surprises" policy.  If a landowner acquires a permit for a project, this cannot be modified even if there are changes (e.g. another endangered species found on the property). 
ESRA requires that the developer file a performance bond to cover the costs of all reasonably foreseeable circumstances (such as wildfires, plant diseases, and other natural events that can have devastating impacts on weakened populations of wildlife). Then ESRA sets up a Habitat Conservation Plan Trust Fund to cover all other unforeseeable costs -- a safety net for landowners and species -- while allowing changes to the permit when needed to protect species.

3. ENCOURAGING REGIONAL PLANNING FOR HABITAT PROTECTION.
ESRA encourages ecosystem planning on a regional basis. Ecosystems do not run along political boundaries, so multi-species and multi-landowner plans are essential to ensure recovery. ESRA encourages regional governments to cooperate together, allows groups of private landowners to pool resources, and allows local governments to administer habitat plans.

4. HELPING LANDOWNERS WITH STREAMLINING & ASSISTANCE.
ESRA helps small landowners by streamlining the permit process and establishing an Office of Technical Assistance. ESRA also allows the small landowners that have a minimal impact on endangered species to benefit from a quick and easy permit process and to receive planning assurances.

ESRA HELPS TO RECOVER AND DELIST SPECIES BY:

1. FOCUSING ON RECOVERY, NOT JUST SURVIVAL.
ESRA improves the existing protections by clarifying approval standards. Under the existing law, pesticide application, river damming, forest clearcutting, and other habitat destruction are judged by their impact on the SURVIVAL of imperiled wildlife. ESRA requires that taxpayer-funded activities must not reduce the likelihood of RECOVERY. In addition, ESRA improves the chances for recovery by identifying specific management actions and biological criteria in recovery plans, placing deadlines on final recovery plans, and encouraging federal agencies to take preventative measures before a species becomes endangered.

2. USING THE BEST AVAILABLE SCIENCE TO PLAN FOR RECOVERY.
ESRA strengthens the existing protections by relying on the best scientific information available. ESRA implements recommendations from the National Academy of Sciences on improving the scientific basis of important endangered species decisions. For unprotected species that means providing protection before population numbers are too low to recover. For listed species that means using independent scientists to peer review large-scale, multi-species habitat conservation plans. It also means asking biologists, not politicians, to tell us what it will take to recover and eventually delist an imperiled species.

3. REQUIRING FEDERAL AGENCIES TO ACT RESPONSIBLY.
ESRA improves the existing protections by strengthening the checks and balances on taxpayer-funded agencies. While federal actions already undergo review to ensure minimal impacts on endangered species, federal agencies should also make efforts to further recovery or consider the cumulative impacts of their actions. ESRA requires federal agencies to help plan for species recovery and then implement those plans within their jurisdictions. ESRA also requires agencies to consider the impacts of their actions on imperiled species in other nations.

4. INCREASING CITIZEN PARTICIPATION IN COMMUNITY PLANNING.
ESRA would improve the existing protections by expanding opportunities for public participation in managing their communities. By requiring public notification when a federal activity may impact wildlife in their neighborhoods, ESRA would improve the public's right to know. ESRA would also require balanced public participation in large-scale regional habitat planning, as well as allow citizen enforcement when their local plans go awry.

For more information on ESRA, contact the Endangered Species Coalition at 202-682-9400.

World Conservation Monitoring Centre - Species Information | Hotlinked Endangered Species List | Endangered Species Update