Environmental Law and Policy Salzman & Thompson Ch.9b(10b): Endangered Species Act HWR415/515 The University of Arizona 2013 1
Summary IV. The Endangered Species Act (ESA) A. Listing Species B. Limits on Federal Agency Actions C. Private Violations 1. The prohibition on Takings 2. Incidental take permits 3. Administrative reform efforts 4. Criticisms of Sec. 9 5. Constitutional Taking challenges to Sec. 9 D. Recovery Plans & Other Provisions E. Does the ESA Work? HWR415/515 The University of Arizona 2013 2
SNAIL FOUND NEAR ROSEMONT MINE SITE NO LONGER UP FOR FEDERAL PROTECTION AP, AZDailyStar, 3/28/13 A terrestrial snail found near the planned Rosemont copper mine no longer is a candidate for federal endangered species protection. The Rosemont talussnail is the same species as the Santa Rita talussnail, the U.S. Fish and Wildlife Service says. The Center for Biological Diversity had filed a petition in 2010 seeking protection for the Rosemont talussnail that it said lives only in the Santa Rita Mountains south of Tucson. HWR415/515 The University of Arizona 2013 3
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A Historic Binational Agreement Gives New Life to the Colorado River Delta Posted by Sandra Postel of National Geographic's Freshwater Initiative in Water Currents on November 20, 2012 Today, the United States and Mexico signed a landmark agreement that will return vital flows to the lower Colorado River and its once bountiful delta and reconnect the river to its final destination, the Gulf of California. The binational agreement, known as Minute 319, is an amendment to the 1944 water sharing treaty between the two countries. In addition to securing flows for the river, the agreement sets out new guidelines for sharing the pain of droughts and gives Mexico the ability to store water in Lake Mead, the vast reservoir behind Hoover Dam. One of North America s most unique and valuable ecosystems, the delta provides habitat for more than 380 bird species, including the endangered Yuma clapper rail and southwestern willow flycatcher, as well as spawning and nursery grounds for once abundant fish, such as the Gulf corvina and the totoaba. HWR415/515 The University of Arizona 2013 7
Major Sections SECTION 4 LISTING, CRITICAL HABITAT, & RECOVERY The Listing Process...................................15 Citizen Petitions.....................................18 Critical Habitat......................................19 Designating Critical Habitat.............................20 Recovery Plans......................................22 Designing Recovery Plans...............................24 Delisting...........................................24 V SECTION 6 WORKING WITH STATES AND LANDOWNERS............28 VI SECTION 7 RESPONSIBILITY OF FEDERAL AGENCIES..............29 Biological Opinions...................................31 VII SECTION 9 THE TAKE PROHIBITION...........................32 Protections for Plants.................................33 VIII SECTION 10 EXCEPTIONS TO THE TAKE PROHIBITION.............35 Habitat Conservation Plans..............................35 No Surprises........................................35 Safe Harbor Agreements...............................37 Experimental Populations...............................38 The Endangered Species Committee.......................38 IX SECTION 11 CITIZEN SUIT PROVISION.........................42 www.earthjustice.org HWR415/515 The University of Arizona 2013 8
The Endangered Species Act 1973 Bans hunting/killing of endangered species and protects them against significant habitat loss. But no protection until listed as seriously in danger of extinction no cost benefit analysis (hard to quantify benefit in many cases) Justification: genetic heritage (10 in 250k); biodiversity decomposers, purifiers, soil, pollination, pest control cultural and aesthetic values A. Listing Species FWS, NMFS 1. Endangered in danger of extinction in all or most of its range 2. Threatened likely to become an ES in the foreseeable future can be species or subspecies or distinct pop. segment (Vertebrates) 1250 in US (500 animals, 750 plants); Top 6 states: Hawaii, CA, AL, FL, TN, TX Time limits: 90 days to decide if full review warranted; 1 yr to list Issues: candidate species wait list, higher priorities, budget limits, add. info Conservation & Preservation efforts can be considered HWR415/515 The University of Arizona 2013 9
Discussion Developers and Agencies sometimes claim some environmentalists are too quick to use the ESA to file nuisance suites that unnecessarily delay or prohibit some kinds of development. What is your view of this? What is the cost/benefit of this kind of suit? For what reasons should we be evoking the ESA? HWR415/515 The University of Arizona 2013 10
The Endangered Species Act ii B. Limits on Federal Agency Actions All federal agencies must consult with FWS before taking action that might affect an ES and must insure that its actions is not likely to jeopardize the continued existence of a species or destruction or adverse modification of its habitat How much & Which habitat to protect: FWS can consider cost Case: TVA v. Hill (1978) Tellico Dam: almost completed @ $80 M Snail Darter threatened Question: nuisance, ulterior applic. Congress created ES Comm. (God Squad) Can exempt govt activity if there are no reasonable and prudent alternatives Lessons: Cost matters not; Congressional intent must be clear HWR415/515 The University of Arizona 2013 11
The Endangered Species Act iii C. Private Violations 1. The prohibition on Takings 9(a)(1) pursue, harass, harm, hunt, trap, capture, kill, collect 1981 significant habitat modification or degradation that actually and foreseeably (not just accidental ) kills or injures wildlife by impairing essential activities like breeding, feeding or sheltering; Difficulties: tree cutting, roads, water loss most controversial 9(a)(2) plants: bans removal, digging, destroying does not apply to threatened species 2. Incidental take permits Can be permitted if taking is incidental to lawful activity, such as property development AND applicant has an approved habitat conservation plan Controversial: too much room for stakeholder pressure? How confident can FWS be that they know enough about E/T species? HWR415/515 The University of Arizona 2013 12
The Endangered Species Act iv 3. Administrative Reform Efforts Id activities likely to violate sec. 9 No surprises policy FWS can t renege on an incidental taking Safe harbor agreements allows landowner to create useful habitat for E/T species and not be at risk to lose use options 4. Criticisms of Section 9 Restrictions happen w/o compensation Shoot, shovel & shut up (3 S syndrome) If habitat is needede, public should pay for it 5. Constitutional Takings Challenges Differences betw. public access and access to E/T species HWR415/515 The University of Arizona 2013 13
The Endangered Species Act v D. Recovery Plans & Other Provisions give priority to species most likely to benefit from a recovery plan Congress has never fully funded Poster quality species most often helped E. Does the ESA work? Success stories: American alligator Peregrine falcon Brown pelican Gray whale HWR415/515 The University of Arizona 2013 14