Changes to Endangered Species Act Called Bad Science

Andrea Thompson, LiveScience.com 28 Aug 08;

Changes that the Bush administration is proposing to make to Endangered Species Act regulations just aren't sound science, various scientists and conservation groups say.

They're concerned that the loss of scientific oversight resulting from the changes will leave some species vulnerable to federal projects that could damage habitats.

The Endangered Species Act (ESA), signed into law by President Nixon on Dec. 28, 1973, does more than just provide for the creation of the Endangered Species List. The act also requires that "recovery plans" be drawn up and implemented to protect and ultimately restore the populations of endangered species, and it charges the U.S. Fish and Wildlife Service and National Marine Fisheries Service with detailing and enforcing these plans.

The ESA "is one of our bedrock environmental laws," said Melissa Waage, a campaign manager with the Natural Resources Defense Council, a non-profit advocacy group.

But the act also charges other federal agencies with "a special duty," as Michael Bean, an environmental lawyer with the Environmental Defense Fund puts it, not to jeopardize these plans by authorizing, funding or carrying out activities that would further endanger any listed species. It is this duty that the proposed changes would affect.

"These changes will affect any federal project that affects any endangered species," Bean told LiveScience. "It puts every endangered species at particular risk."

Conservation tool

In the 35 years since its inception, the ESA "has allowed for many important successful conservation efforts," said George Amato, a conservation biologist with the American Museum of Natural History in New York.

The proposed changes are "of grave, grave concern to conservationists," Amato said, adding that it wasn't just extreme environmental groups voicing their opposition, but "very, very mainstream efforts."

Some of the act's major successes at recovering populations of endangered animals include the bald eagle, grizzly bear, gray wolf, and American alligator. (Species covered under the act don't just include familiar charismatic birds and mammals, but also invertebrates and plants.)

Of the species that have been placed on the list, 99 percent are still with us, Waage said.

Several prominent creatures on the Endangered Species List are also on a Red List of Threatened Species put out by the International Union for Conservation of Nature that monitors endangered species all over the world. These species face an extremely high risk of extinction in the immediate future, the IUCN states.

Amato, who works on many international conservation efforts, said that the ESA is "the single most important tool in conserving endangered species," at least in the United States, and that it is held up as a model of the role that governments can play in conservation efforts all over the world.

Bean agrees with this sentiment and said that, in his opinion, the greatest accomplishment of the Endangered Species Act has been "in changing the behavior of other federal agencies" in relation to how their projects affect threatened wildlife.

It is precisely this accomplishment that the proposed changes threaten, conservationists say.

Bean also said the Fish and Wildlife scientists he has spoken with said they had no opportunity to weigh in on the changes, which were proposed by those in the service's senior political levels.

Oversight

Since the 1970s, the Fish and Wildlife Service has had regulations in place that govern how other federal agencies consult with them on proposed projects, such as building a dam or highway, but also including any privately-funded projects that would require a federal permit, Bean said.

When a federal agency, for example the National Park Service or the Army Corps of Engineers, proposes a project, they must first determine if any endangered species are present in the area. If so, they must carry out a biological assessment to determine what, if any, impact the project may have on the species.

If they determine there will be an impact, they report it to the FWS, which does a more detailed examination and issues a written opinion on the project. If, however, the agency determines their project won't have an impact on the species, they must still report to Fish and Wildlife, who must issue a letter agreeing with the agency's assessment before the project can proceed. This consultation with the FWS often results in changes to proposed projects.

Making the changes proposed by the Bush administration would be "significantly gutting that consultation provision," Waage said.

Best available science

The Interior Department, which houses the Fish and Wildlife Service, argues "that this is no big deal," Bean said. They point out that usually the FWS agrees with a federal agency when they determine that a certain project won't have any effect on an endangered species. Bean agrees that this is typically the case.

But, "the [FWS] doesn't always agree," Bean said. And it is the exceptions that he and others are worried about.

He cited a recent example where the Federal Emergency Management Agency argued that their practice of issuing flood insurance to new development in the Florida Keys did not hurt endangered species there. But the Fish and Wildlife Service argued that issuing flood insurance encouraged development in the Keys, and that development did threaten endangered species. A U.S Court of Appeals agreed with Fish and Wildlife and ruled against FEMA.

"If these changes had come into place, FEMA would have been able to make that decision," without any input from the FWS, Bean said.

The oversight provided by the Fish and Wildlife Service reviews is necessary "to ensure that decisions aren't being made for political reasons," Amato said.

An official at the Interior Department said the agency is not trying to remove any informal consultation between federal agencies and the FWS.

"What we're looking to do is remove some of the bureaucratic red tape ... on common-sense projects" where it is agreed that no harm will come to any endangered species as a result of the project," said Chris Paolino, a spokesman for the Interior Department.

"What this doesn't do is offer a federal agency a sort of 'get-out-of-jail-free card,'" Paolino said in a telephone interview. Any federal agency that did damage to an endangered species or its habitat would still be held responsible, he said.

The Interior Department has also argued that each federal agency has enough expertise now to determine whether their projects will harm endangered species. Bean said that while these agencies may have biologists, they are not necessarily as well-versed in evaluating conservation issues as FWS scientists are.

"They have an expertise that is unrivaled by any other agency," he said.

Waage agreed, saying that the act requires the use of the best available science, which lies with the wildlife experts at the Fish and Wildlife Service.

Public comment

According to an Associated Press report, the public comment period for the proposed changes is only 30 days (set to end mid-September), which some conservationists and lawmakers say is too short. Many, including Bean, have requested an extension to the comment period.

"We always consider requests for extensions," Paolino said. He added that no final decision has been made on whether to extend the comment period.

The Environmental Defense Fund and NRDC both plan to submit public comments criticizing the proposed changes; and Amato, Bean and Waage all said that they expect a very large, strong reaction to the changes from environmental groups, scientists and lawmakers alike.

Several senators, including Hillary Clinton and John Kerry, have sent a letter to Interior Department Secretary Dick Kempthorne, who will make the ultimate decision on whether or not to adopt the proposed changes, expressing their concern over the changes.

What impact the public comments will have is uncertain. Groups like the Environmental Defense Fund and NRDC that oppose the changes hope they will cause the administration to withdraw the proposal and leave the Endangered Species Act intact.

If the changes are enacted though, whether or not they stay will be up to the next administration, in which case, "this'll be decided in November," Amato said.