Recently on DU there has been a lot of confusion about the scope and purpose of the Endangered Species Act.
The Act was signed into law by President Nixon in 1973.
According to the USFWS website:
Through federal action and by encouraging the establishment of state programs, the 1973 Endangered Species Act provided for the conservation of ecosystems upon which threatened and endangered species of fish, wildlife, and plants depend. The Act:
authorizes the determination and listing of species as endangered and threatened;
prohibits unauthorized taking, possession, sale, and transport of endangered species;
provides authority to acquire land for the conservation of listed species, using land and water conservation funds;
authorizes establishment of cooperative agreements and grants-in-aid to States that establish and maintain active and adequate programs for endangered and threatened wildlife and plants;
authorizes the assessment of civil and criminal penalties for violating the Act or regulations; and
authorizes the payment of rewards to anyone furnishing information leading to arrest and conviction for any violation of the Act or any regulation issued thereunder.
Section 7 of the Endangered Species Act requires Federal agencies to insure that any action authorized, funded or carried out by them is not likely to jeopardize the continued existence of listed species or modify their critical habitat.
A candidate species is typically either directly listed by the USFWS or NOAA or is a subject of a petition put forward by an individual or group. The USFWS or NOAA will look at the available science and make a ruling. Subspecies may be listed, populations may be listed, or species living within a particular area may be listed.
Once a species becomes listed, a recovery plan is written and critical habitat is determined. The recovery plan typically states the ideal population that the species should get to before becoming delisted. The recovery plan also provides a timeline for recovery, things that need to happen for recovery to be successful, and projected costs. Critical habitat is area that the species could live in that is needed for the species to survive. Critical habitat might be as small as a hillside or as large as the Mojave Desert.
If a species meets the criteria for delisting outlined in the recovery plan, the species is delisted and monitored for 5 years. SPECIES ARE NOT MEANT TO BE PERMANENTLY LISTED. The goal is to have the species recover and become delisted.
All this is well and good, but what does this mean? Aside from active efforts to create more members of a listed species (such as the condor breeding programs) how does the Act protect individual members of a species?
Here in Redding, Caltrans is building a bridge across the Sacramento River. In order to be allowed to build the bridge, Caltrans needs permits from assorted agencies, such as the Army Corps of Engineers, the US Fish and Wildlife Service, and the California Department of Fish and Game. These permits cover issues such as placement of fill in the river, destruction of wetlands, and incidental take of listed species. Before the agencies issue the permits, they'd like to see a discussion of the potential impacts to natural resources as a result of the proposed project. Additionally, since the bridge project is receiving federal money, Caltrans itself cannot participate in a project that would result in "take" of a listed species.
Caltrans knows that they need permits and some hefty environmental documents in order for the agencies to sign off on the project. So they put the project out to bid.
A company such as EDAW, Jones and Stokes, URS, or one of about 80 others wins the bid, and the work begins. No, not building the bridge! The work of writing the documents and getting the permits.
The company will send a biologist to the site, and the biologist will delineate wetlands, count and measure trees, look for sign of endangered species, count elderberry stems and look for exit holes, and so forth. Then the biologist will go back to the office and write up a document or document section discussing all the biological issues at the site. The document or documents in question may take months to write, depending on the complexity of the issues.
For this particular project, the species in the area that must be mentioned in the document are osprey, bald eagle, tricolored blackbird, winter-run chinook salmon, western red bat, vernal pool fairy shrimp, vernal pool tadpole shrimp, valley elderberry longhorn beetle, slender orcutt grass, bank swallow, spring-run chinook salmon, northwestern pond turtle, and Pacific fisher. (Note well: some of these species are California species of concern, and not listed as threatened or endangered by either the state or the federal government.) In addition, raptor species are fully protected, so hawks, owls, and so forth would probably also be discussed.
Usually there is a table within the document that has a list of all the species, and rationalizations for not discussing the species in the text. If I were writing the document, I'd throw out the blackbird, both of the shrimp, and the fisher as being unlikely to occur on the site. Most of the rest of the species would require a full write-up, and a determination of likely occurrence. Just for purpose of the example, let's say there's no impact on most of the species, but a potentially significant impact on bald eagle (federally delisted but fully protected, and state endangered), valley elderberry longhorn beetle (federally threatened), northwestern pond turtle (California species of special concern), two chinook salmon runs (federally threatened and endangered), and western red bat (California species of special concern). Let's say there's also potentially significant impacts on breeding birds.
This is where the bullshit and the game-playing come in. This is also where the project can run into real trouble as far as costs and scheduling.
It's a known fact that there's a big bald eagle nest right next to the bridge site.
http://turtlebay.org/caltranseaglecam.phpOriginally Caltrans tried to put a cone over the eagle nest to keep the parents from breeding this year, but the parents flipped out and the cone was taken down. This webcam was put up so that some hapless schmo can watch it all day and see if the eagles are being disturbed by the construction.
I'm not sure what was done about the rest of the species, but I'll give a general outline of what could occur.
Valley elderberry longhorn beetles are a mythical species that lives in mature elderberry bushes. Since they are mythical, they are never seen directly, and their presence can only be inferred by holes in the stems of elderberry bushes. To mitigate for the potentially significant impacts to this species, some unlucky soul will go out and count all the elderberry stems in the project area. Through the magic of Excel, a number of replacement bushes is devised. These bushes may be planted on- or off-site, but they must be protected in perpetuity by the client. If you know where to go, there are fields of mitigation elderberries in the valley.
Adjacent to the project site is an area known as Turtle Bay. Likely mitigation for turtles includes checking the site every day for turtles, and monitoring construction so that turtles don't get hurt by the equipment. (This monitor will probably also be the fish monitor too. I think there are two shifts over there, a day shift and a night shift. Good times.)
Salmon mitigation often consists of halting construction so that the fish can migrate without noise and pollution. This may result in construction ceasing for part of the year. Usually there are also pretty strict rules about erosion from the site entering the river.
Western red bats roost in trees. There are a lot of trees near the bridge site. A bat expert would typically go out and do a bat survey, and if possible, the bats would be excluded from the roost. Exclusion methods may include netting off the area or otherwise physically blocking access to the roost site.
Mitigating impacts to breeding birds may take several forms. There is some sleazy stuff that happens in this area. One can totally denude the site of any vegetation in order to avoid impacts to breeding birds. Typically trees that are going to be removed are removed before the breeding bird season starts. I've also seen developers totally ignore the breeding bird issue and proceed with construction right in the middle of the breeding season. This is why all developers are going to burn in hell for all eternity. But Caltrans usually tries to do the right thing. For species such as cliff and barn swallows, their nests may be destroyed prior to the onset of the breeding season (this is how your friend Xema got bird lice). Construction may be halted during the breeding bird season (note well that if construction is halted for both breeding birds and fish, this can leave as little as four months in the year to actually build anything). Birds may be physically excluded from breeding areas, or harassed until they go somewhere else. Biologists can go find and map all the bird nests on the site, and then monitor the nests until the young have left the nest.
In summary, there's usually an odd song and dance around all these different issues, while totally ignoring the real problems. Why is riparian habitat still being destroyed? Why are wetlands still being filled? Why are we still pretending that fish aren't being killed by dams as opposed to wayward backhoes?
So what does all this have to do with wolves and polar bears?
As noted above, the Endangered Species Act protects species until such time as they are considered recovered. Species are not meant to stay listed forever. Ideally, such species as the California Condor could recover to the point where breeding programs are not needed and they are just another part of the southwestern avifauna.
As far as wolves go, the original recovery plan called for 100 wolves each in Wyoming, Idaho, and Montana, for a total of 300 wolves. Right now there are 1500 wolves across these three states, for a total of five times more wolves than the recovery plan originally called for. Yes, delisting means they can be shot. This is a bummer, yes, but again, the Act was not engineered to protect species in perpetuity.
In addition to the danger of being hunted, the delisting of the wolf means that biologists in the wolf's range will not have to consider impacts to the wolf as a part of any projects. Delisted species are frequently discussed in environmental documents, but the likelihood of potential impacts to the wolf affecting a project are small.
With regard to the polar bear, listing the bear would do NOTHING. It would just be another stupid hoop to jump through for a project to get approval. For the above bridge project, the biologist writing the document would cook up some crap about the added traffic having no impact, and that discussion would go into every other document verbatim. It would be a check mark on a list. Even for a big project with real climate impacts, such as opening a new oil field, there would be some crap in the document about the minimal amount of CO2 that 27 billion barrels of oil would put into the atmosphere and the biologist in question would just stamp the thing with the old "No Impact" stamp.
In summary, yes, the Endangered Species Act is broken. The Act is used to wrangle management of landscapes in a way that I don't think its authors intended. The Act also falls far short of protecting landscapes for the health of the organisms that live there.
As an illustration of this, the Marbled Murrelet is a small seabird that nests in large trees near the Pacific coast. Old growth redwoods are typical habitat for this bird. Most environmentalists want to see the old growth redwoods protected, and if a grove of redwoods has murrelets in it, it can't be cut down. Many environmentalists of the Earth First! stripe I've met know nothing about the murrelet, and wouldn't recognize one if they saw or heard it. They like big redwoods, but they really could give a shit about the murrelet. The murrelet is nevertheless used as a weapon in the fight to save the old growth. If the powers that be had any sense at all, they would just buy all the damn old growth redwoods instead of spending all this time monitoring the birds and fighting in court, but murrelets themselves are an industry. The Sierra Club sends out fundraising flyers bemoaning the plight of the murrelet, Earth First! gets to illegally camp in some terrific groves, hundreds of college students earn some summer cash surveying for murrelets, dozens of federal biologists get grant money to study the birds, timber companies have armies of their own biologists trying to prove that all the other folks are liars, and so forth. Again, all this is not about the murrelet but the trees, and paradoxically, the trees themselves have no protection without the murrelet. The species is the means to an end. Meanwhile, the murrelet is out doing its own thing.
Polar bears are already a symbol of climate change. There's already a symbolic tug-of-war between the Al Gores of the world and the Sarah Palins of the world, where one side relies on the bear to gain $upport for a movement, and the other is happy to go out and shoot a bear as a big "fuck you" to the same movement. Let's be honest here: we're not going to do shit about climate change, and the bear will have to live or die on its own. It's the same story with the wolf and western land use. It's a cycle of "fuck yous" from one side to the other, and it's probably not going to change without a radical rewriting of environmental laws in this country.
-Xema, the Cynical Biologist
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