Jamie Rappaport Clark, © Defenders of Wildlife

The Endangered Species Act isn’t broken, but is its implementation faltering?

We’ve all heard them. Claims from powerful special interests and members of Congress blaming federal environmental regulations for a host of economic maladies. The Clean Water Act, Clean Air Act and the Endangered Species Act (ESA), are vilified with alarming regularity.

The latest round of baseless claims about the supposed onerous economic impacts of the ESA led anti-environmental members of Congress to propose 88 legislative attacks on the act in 2015, all designed to block or remove protections for America’s most imperiled wildlife and undermine the strength and effectiveness of the act.

Florida manatee, © Jim Reid/USFWS

If these claims of economic doom and gloom purportedly caused by the ESA had any foundation in fact, this would be a serious problem warranting close attention. Fortunately, the adverse economic impacts attributed to the ESA have no basis in “fact” and we now have compelling new peer-reviewed data to prove it.

An analysis published in December in the Proceedings of the National Academy of Sciences assessed a key provision of the ESA:  Section 7 consultations. Section 7 requires all federal agencies to consult with the U.S. Fish and Wildlife Service (the Service), or the National Marine Fisheries Service, (which was not part of this analysis) to ensure that the actions they are considering funding, authorizing, or carrying out are not likely to “jeopardize” a listed species or “destroy or adversely modify” designated critical habitat. As a practical matter, this means that proposed projects cannot threaten a species’ survival.

The new analysis found that since 2008, not one of the over 88,000 projects the Service consulted on was stopped because the Service concluded it would threaten a species’ survival. Although the Service did find that two projects would initially jeopardize a species, both ultimately moved forward because they adopted economically feasible alternative conservation measures designed to reduce impacts to listed wildlife. But, while this study shows that claims of the ESA causing economic devastation are groundless, it also raises new questions about how effectively federal agencies are implementing Section 7.

The ESA gives the Service broad discretionary conservation authority. This authority under Section 7 is designed to allow the Service’s wildlife biologists to use their best professional judgement to evaluate projects and to identify economically feasible modifications that would avoid threatening a listed species survival.  The study shows that the Service’s track record of evaluating projects over the past seven years is at odds with past history of the consultation process.

California condor, © USFWS

For example, during the Reagan and Carter administrations, which are the only other times these type of data were evaluated, it was more common for the Service to conclude that proposed federal projects or actions would threaten a species’ survival. For example, from 1979-1981, the Service evaluated 10,762 proposed actions and found that 173 would jeopardize a species. Only two of these projects, however, were ultimately cancelled or withdrawn. A similar pattern occurred with consultations from 1987-1991. During that time, the Service completed 73,560 consultations, finding that 350 projects were likely to threaten a species’ survival. But of those projects, only 18 were blocked or cancelled because there were no feasible alternatives to the projects.

Even though the Service was making a steady but modest number of jeopardy calls during these earlier study periods, over 99 percent of all projects still proceeded with only limited modifications, again dispelling the myths that the ESA permanently blocks projects and harms thousands of jobs across the country.

This past history of Section 7 consultations now raises the question as to why since 2008, the Service found that only two projects could potentially jeopardize a species compared to the 173 and 350 jeopardy calls it issued in earlier study periods. This is a dramatic shift in consultation findings.

desert tortoise Joshua Tree, ©Phil & Loretta HermannHave federal agencies become that much better at planning projects so as to avoid jeopardizing imperiled species? Or, is the Service so starved of funding and staff that it can only give superficial and cursory looks at proposed projects? A third option: could the Service be discouraging its Section 7 biologists from issuing jeopardy opinions to avoid controversial or confrontational disagreements under the ESA? Might the answer be a mixture of all of the above explanations?

We currently don’t know the answer to these questions, but it is essential that an answer be found. We intend to do just that.

These data point to very real questions regarding the present and future implementation of the Section 7 consultation process and whether the Service has quit making tough biological calls under Section 7 needed to conserve listed species. Section 7 is a critical component of the ESA, and if it is not being implemented correctly, the ultimate goal of the ESA – saving species – could be severely undermined.

The ideal world is where Service biologists feel empowered to call the jeopardy balls and the strikes as they see them during the consultation process, and then work closely with affected agencies to identify feasible pathways forward. This is a world that works best for listed species, best for the integrity of the ESA and best for our nation’s economy. It is a world that we all should endorse.

Originally published on Huff Post Green.

One Response to “The Endangered Species Act isn’t broken, but is its implementation faltering?”

  1. Paul Cerniglia

    I had the great fortune to work as supervisory wildlife inspector for the USFWS LE office in NY for over 30 years. In addition, I was honored to have met Ms. Clark on her visit to JFK and together we inspected a shipment of caiman shoes. I am also a very proud member of Defenders since 1989.

    I found the report on Combating Wildlife Trafficking (from Latin America to the US) to troublesome in its reliance on only segments of USFWS LEMIS data. Its conclusions are honest but narrow in scope and urgency.

    There is no law without enforcement. The civil prosecution of cases, including the forfeiture of illegally imported items or the issuance of civil penalties, has seriously declined due to de-emphasis (in favor of trying to find criminal cases) as well as a lack of regional solicitor staff. These cases are primarily conducted by WIs. In fact, the vast majority of all investigative cases found in LEMIS are conducted by and written by WIs. Yet there is no urgency to hire WIs, the most important deterrence to illegal wildlife trafficking. Remember, criminal cases (which we must continue to do and increase) can take years to develop, civil cases do not. Not only do our imperiled and endangered wildlife cannot wait but also the everyday inhumane transport of live wildlife.

    Your graph of WI hiring over time is horribly misleading. In my 30 years in NY, I only had a “full” staff for a whole year in two of those years. Turnover is rampant due to a lack of incentives to stay in the program. Currently there are less than 100 field (non supervisory) WIs nationwide. Did you know that the three busiest ports handle close to 60% of the wildlife shipments yet only have 25% of the nation’s WIs? These three ports haven’t had an increase in staff levels in over 10 years yet the chart shows an ever increasing climb.

    I could go on and on but the bottom line is that the WI program needs a complete overhaul from its organizational structure, hiring, training, retention, enforcement priorities, budget, data collection, public awareness, etc. We need to work closely with LE in solving these issues.

    I would urge Defenders and others to question the effectiveness of the current WI program in carrying out its mission-survey the WIs, request a GAO audit, lobby the Congress, interview the wildlife inspector’s union.

    I am available to assist in any way I can.

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