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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

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Follow the truth.

"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.

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Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

Using Gulf Disaster Funds for Florida Boat Ramp Project Sets a Sorry Precedent

04/24/2012

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In the midst of our Earth Day celebrations comes an example of just how difficult it can be for humanity to self sacrifice, especially when money is involved. Deepwater Horizon recovery money, collected pursuant to the Oil Pollution Act, and intended for remediation of harms to natural resources, will be used to build new and repaired boat ramps in Florida.

In April 2010, the Deepwater Horizon oil disaster badly damaged the Gulf of Mexico.  The environmental impacts are still being felt, such as unprecedented numbers of dolphin strandings or snapper with lesions or oil coating deepwater reefs on the Gulf floor.  To help offset those impacts, BP and the Oil Pollution Act Trustees (including representatives from the affected Gulf states, NOAA and the Department of the Interior) entered into an unprecedented agreement whereby BP set aside one billion dollars to fund early restoration projects. The agreement also committed to a public review process, and many groups weighed in, suggesting options for spending the money. Last week, with the release of the Deepwater Horizon Oil Spill Phase I Early Restoration Plan and Environmental Assessment, the public got a preview of how the Oil Pollution Act is being implemented. The initial plan includes funding for two oyster projects, two marsh projects, a nearshore artificial reef project, two dune projects, and yes, really, boat ramps in Florida.

Reasonable minds can differ over how the Oil Pollution Act funds should be allocated. The Marine Fisheries Advisory Committee, for example, emphasized the need to focus on ecosystems, and especially the regional estuaries, which function as the kidneys for the entire Gulf of Mexico.  Projects to benefit oysters, marshes, reefs and dunes reflect a similar kind of thinking. But the Florida Boat Ramp Enhancement and Construction Project, as it is called, is something altogether different. At an expense of $5,067,255, this project includes four boat ramp facilities for human use.  It defies the spirit of the Oil Pollution Act, if not worse.

The purpose of the Oil Pollution Act was to ensure that the party responsible for an oil spill “is liable for the removal costs and damages.”  Sec. 1002(a). Funds paid by the responsible party are expected to pay for damages, in one of six categories, including: (1) damages to natural resources; (2) damages for injury to real or personal property; (3) loss of subsistence use of natural resources; (4) damages to revenues (including taxes, royalties compensate for lost recreational opportunities for the public, rents, fees, or net profit shares); (5) damages to profits and earning capacity; (6) damages for net costs of providing increased or additional public services (such fire, safety, or health services).  In addition, the definitions section of the Oil Pollution Act, Sec. 1001(20), further says that ‘‘natural resources’’ includes land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States.  Upon a cursory reading, none of this seems to justify a sparkling new boat ramp (or even a repaired ramp) in Escambia County.

The catch, however, can be found in Sec. 1002(b)(2)(A), which says that “Damages for injury to, destruction of, loss of, or loss of use of, natural  resources, including the reasonable costs of assessing the damage… shall be recoverable by a United States trustee…”
The Trustees report clearly intends to rely on that provision, explaining that the seven proposed projects were intended to “address injuries in four of the five impacted states, on the coast and offshore, to mammals and marine organisms, and/or compensate for lost recreational opportunities for the public.”  In other words, the statutory reference to “the loss of use of natural resources” has now been interpreted to mean that the temporary loss of recreational boating created liability, and justifies a new boat ramp – for people – as a remedy.

But the detailed explanation of the boat ramp project makes the analysis even harder to swallow. “This project will help address the reduced quality and quantity of recreational activities (e.g., boating and fishing) in Florida attributable to the Deepwater Horizon Oil Spill and response activities,” says the Phase I Early Restoration Plan documentation. But if the quantity and quality of recreation has declined, because the Deepwater Horizon disaster has marred its recreational beauty, then the solution cannot be more recreational access. The logic is reminiscent of a famous Yogi Berra quote: nobody goes there anymore, because it's too crowded.

Perhaps, if an Escambia County boat ramp had been utterly destroyed by the oil spill, reconstruction would be appropriate. Compensating recreational boating businesses might also seem appropriate.  Even the restoration of an oil-covered party-boat island that weekend warriors once recreated upon would be within the realm of reason.  Building a new boat ramp, however –- which in turn will result in more boats (and maybe more decline in quality of local natural resources) –- is not a reasonable way to compensate for the natural resources damages already done by the Deepwater Horizon disaster.

If the residents of the Florida panhandle needed a new boat ramp, then Escambia County and the State of Florida could have paid for it. Indeed, the Boat Ramp might even be a good idea, and the project might create an economic boost deserving of stimulus money. But the use of Oil Pollution Act funds for this purpose sets a dangerous new precedent. What's next: a few more waterfront buildings? After all, Deepwater Horizon temporarily destroyed our recreational views.

P.S. Happy Earth Day.

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The Florida Boat Ramp Enhancement and Construction Project includes five parts: (1) repairing an existing boat ramp in Pensacola Bay (Navy Point Park Public Boat Ramp N30-22.8’/W087-16.9’) (2) constructing a new boat ramp facility in Pensacola Bay (Mahogany Mill Public Boat Ramp N30-23.9’/W087-14.9’); (3) repairing and modifying an existing boat ramp in Perdido Bay (Galvez Landing Public Boat Ramp N30-18.8’/W087-26.5’) (4) constructing a new boat ramp facility in Perdido Bay (Perdido Public Boat Ramp N30-1.4’/W087-26.7’), and (5) visitor information kiosks to provide environmental education to boaters regarding water quality and sustainable practices for utilization of marine, estuarine and coastal resources in Florida. (Image from escambia county online)

RELATED LINKS:  Dollar and Sins: The Oil Spill Penance Race Begins, by Jeremy Morrison at Independent News

Evincing the silver lining in the disaster, FWS issues an emergency permit for sea turtle rehabilitation.

08/09/2010

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75 Fed. Reg. 47825 / Vol. 75, No. 152 / Monday, August 9, 2010 / Notices
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
FWS–R2–ES–2010–N138; 20124–1113–0000–F5
Emergency Exemption; Issuance of Emergency Permit to Rehabilitate Sea Turtles Affected by the Deepwater Horizon Oil Spill, Gulf of Mexico

SUMMARY: On April 20, 2010, a massive oil spill occurred as a result of the Deepwater Horizon drilling rig explosion in the Gulf of Mexico. The oil spill continues to threaten the Gulf of Mexico environment and its inhabitants, including five sea turtle species. We, the U.S. Fish and Wildlife Service have authorized Texas State Aquarium, under an Endangered Species Act (ESA) permit, to aid sea turtles affected by the oil spill.

EXCERPT: Rehabilitation may include the following activities: Examine and document stranded sea turtles; aid with holding/restraining live turtles while others permitted rush to the scene, examine tags, apply tags, collect data/specimens, or attach satellite transmitters; examine for tags and tag live sea turtles; transport live and dead sea turtles to rehabilitation facilities, satellite transmitter attachment sites, and necropsy sites and necropsy dead sea turtles and collect samples; examine gut contents from dead sea turtles; attach satellite transmitters to nesting Kemp's ridley turtles; locate egg chambers and retrieve eggs for protected incubation; provide care for incubating sea turtle eggs; release hatchling sea turtles; examine unhatched eggs and collect tissue/gonad samples; capture juvenile sea turtles in nets and collect associated data; collect blood samples from stranded, nesting, and captured sea turtles; and collect small tissue samples from live stranded, nesting, and captured sea turtles.

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Image of an oiled sea turtle from Sea Turtle Restoration Project

KEITHINKING: The impacts of oil on sea turtles have been a tragedy.  See Defenders of Wildlife.  And the need to protect sea turtles from these types of disastrous oil spills have been understood for years.  See NOAA response information.  But we should all remember that out of crisis came opportunities for on-the-job training.  One of the silver linings in the Deepwater Horizon tragedy is the significant growth in sea turtle awareness and rescue capabilities.  Consider, for example, the following:
No, it should not have happened, and yes, we need to avoid it ever happening again (but it will....)  Still, for the moment, I'm choosing to be an optimist, and to celebrate one of the success stories.  For more links on sea turtle rehab efforts, visit the Huffington Post and New York Times.

ESA news: NOAA authorized ZERO incidental take of sea turtles for BP and others in Gulf BiOp; more news from Florida, Alaska and places inbetween

08/01/2010

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We don't know how many sea turtles exist, and scientists and fishermen continue to debate the merits of using nesting female data to understand population trends. See ENCtoday.com  But we do know that Deepwater Horizon reduced the numbers of sea turtles (and pelicans and bluefin tuna).  See ESAblawg.  In fact, we also know that loss of those sea turtles was illegal, and perhaps a crime.  In the biological opinion covering the Deepwater Horizon project, NOAA stated that it was not authorizing any -- yes, ZERO -- incidental take of sea turtles due to oil spills:

Takes of Listed Species Resulting from Spilled Oil.  NMFS believes that a small number of listed species will experience adverse effects as the result of exposure to a major oil spill or ingestion of accidentally spilled oil over the lifetime of the action. Spilled oil resulting from the proposed action could take up to 42 lethal and 111 non-lethal takes of loggerheads; 2 lethal and 7 non-lethal takes of a leatherback sea turtles; 9 lethal and 16 non-lethal takes of Kemp’s ridley sea turtles; 13 lethal and 36 non-lethal take of green sea turtles; 2 lethal takes of Gulf sturgeon; and 11 non-lethal takes of sperm whales over the 40-year lifetime of the proposed lease sales. However, NMFS is not including an incidental take statement for the incidental take of listed species due to oil exposure. Incidental take, as defined at 50 CFR 402.02, refers only to takings that result from an otherwise lawful activity. The Clean Water Act (33 USC 1251 et seq.) as amended by the Oil Pollution Act of 1990 (33 USC 2701 et seq.) prohibits discharges of harmful quantities of oil, as defined at 40 CFR 110.3, into waters of the United States. Therefore, even though this biological opinion has considered the effects on listed species by oil spills that may result from the proposed action, those takings that would result from an unlawful activity (i.e., oil spills) are not specified in this Incidental Take Statement and have no protective coverage under section 7(o)(2) of the ESA.

See Endangered Species Act - Section 7 Consultation, Biological Opinion (June 29, 2007) at page 101.  Again, in the absence of any incidental take authority at all, BP violated the prohibition against take of protected species in Section 9 of the Endangered Species Act.  And more than 700 stranded, oiled or dead turtles have been discovered.  As a result, Sea Turtle Restoration Project has notified BP and the U. S. government that the clean-up of the BP oil spill in the Gulf of Mexico is harming endangered sea turtles in violation of the Endangered Species Act (ESA), and other environmentalists have argued that NOAA's Endangered Species Act analysis was too superficial.  See Living on Earth and see also, ESA blawg.  In an effort to prevent a repeat of the same mistakes, the Center for Biological Diversity filed a NEPA-based suit, seeking to require expanded analysis of large scale spills.  See New York Times.  (CBD is probably onto something here; a federal district court judge in Alaska already issued an order halting all oil and gas activities in more than 29 million acres of the Chukchi Sea.  See OMBwatch.org)  Meanwhile, volunteers are trying to save the sea turtles species by relocating impacted eggs, VoiceOfAmerica, and the traditional threat of excessive beach lighting continues to take its toll on the species.  See Sarasota Herald-Tribune and New York Times.  

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Dr. Brian Stacy, NOAA veterinarian, cleans a young Kemp's ridley turtle.  Photo: NOAA/GADNR

***

Some of the other traditional Endangered Species Act newsmakers made their usual media appearances.  The Alaska Legislature cancelled its planned ESA conference, JuneauEmpire.com but Alaskan cruise ships are increasingly interacting with humpback whales, risking criminal investigations.  See Execte.com  In Oregon, locals said "thanks for nothing" to a federal task force report discussing the effects of the ESA on timber forests. See OregonLive.com.  New Mexico officials want the U.S. Fish and Wildlife Service to revisit the endangered status of the Rio Grande silvery minnow.  See Bloomberg.  Another wind farm lawsuit could soon blow through Western Maryland. See The Baltimore Sun.  And finally, the judge endured the continued absence of any negotiated solution to the historic dispute between Florida and Georgia over Apalachicola River discharges and flows.  See article on court ruling and more in Atlanta Journal Constitution and Newnan Times-Herald.  

But Endangered Species Act issues also continue to develop in entirely new places.  U.S. farmers fear that the ESA could dramatically change agricultural pesticide use regulations.  See Miami Herald.  And in Texas, a bellweather lawsuit brought by The Aransas Project, over whether regional water management resulted in a taking of whooping cranes, will head to trial in 2011. See VictoriaAdvocate.com.  

Finally, and as usual, the Center for Biological Diversity continues to play an enormous role in the reshaping of the ESA.  Among their recent announcements: a petition to reintroduce wolves across the nation, see Minnesota Public Radio, and a challenge to a 677 mile natural gas pipeline affecting Nevada's listed species.  See Las Vegas Review Journal.  Also noteworthy: Yale Environment 360 offered a comprehensive article on the environmentalists ongoing efforts to use the ESA to regulate climate change.  See ESA blawg, Has Climate Change Jeopardized the ESA?

New wildlife issues surfacing in Gulf, environmental advocates resist wind energy, and Endangered Species Act challenges mount, nationwide.

07/05/2010

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Deepwater Horizon was not “reasonably likely to occur.”  ESA blawg readers already knew, as a legal matter, that FWS must have reached that conclusion when it allowed the project to move forward.  See prior ESA blawg and Wired News.  Recent news coverage confirmed the legal conclusion in its story citing a September 2007 U.S. Fish and Wildlife Service memo stating that large oil spills from the Gulf of Mexico projects were "low-probability events that weren't likely to affect brown pelicans, sea turtles and other animals with Gulf Coast habitats.”  See New York Times coverage by Leslie Kaufman.

BPoilBurnPinarOzger.jpg
Low risk? Not for the turtles burned alive when surface oil is incinerated as part of the Deepwater Horizon response effort.  See MyFoxTampaBay (photo above by Pinar Ozgar from The Atlantic.  And Sea Turtle Restoration Project even reported that boats were being prevented from saving the turtles.  Protests followed: one Facebook page sought to earn a million subscribers.  Only days ago, environmentalists sued BP for the activity.  See Business Week.  The lawsuit proved effective.   In a proposed settlement, BP said it will allow wildlife biologists onboard clean-up vessels to spot and remove ensnared turtles.  See, Christian Science Monitor.  

The sea turtle story may just be the first of many similar tales.  Due to the oil spill, NRDC plans to file a lawsuit related to sperm whales, and the Center for Biological Diversity filed a petition to list the bluefin tuna as a threatened species.  See New York Times.  Whale sharks, already a threatened species, have also been seen swimming through the BP oil spill.  See DeepTypeFlow and Discovery news.  And The Boston Globe worries about the piping plover, a threatened migratory shorebird species that nests in the Gulf.


***

While the oil in the Gulf flames, Endangered Species Act news elsewhere in the nation has often sat on the back burner.  But some important stories are cooking.    

For starters, anyone who thinks that greener energy can avoid disastrous oil-related decisions, and its wildlife consequences, will soon scratch that idea.  Environmentalists already sued the U.S. Fish & Wildlife Service for its approval of the the nation's first offshore wind energy project, allegedly for failure to comply with the Endangered Species Act process for Roseate Terns, Piping Plovers and the North Atlantic Right Whale.  See LA Times.  Sadly, the Bush Administration's FWS did it to themselves again, and some groups claim the lawsuit stems from the January 2010 Interior Inspector General report that the plaintiffs say “found that the agencies reviewing the project’s environmental impact study were unnecessarily rushed in their reviews because of the applicant’s desire to complete the environmental review prior to the exodus of the Bush Administration.”  See EarthTechling.com.   A proposed wind farm in Western Maryland faces similar opposition.  See The Baltimore Sun.

Offering some historical perspective on how much the Endangered Species Act has matured, The New York Times looked back on the twenty years since the Northern Spotted Owl earned a place as a listed species.  But less charismatic species get attention too. Another New York Times story reported that the federal government proposed nearly $3 million in fines against the City of Birmingham, Ala., over the death of 12,000 watercress darters, one of the largest fish kills in the history of the Endangered Species Act.  

West coast fisheries remain in the news as well.  MercuryNews.com notes that drought-ravaged Klamath farmers, whose water supplies compete with salmon and sucker fish, are finally getting an increase in water deliveries.  A similar competition between delta smelt and regional irrigation earned a central role in the recent debate between California Senate candidates.  See ContraCostaTimes.com

Offering some much needed optimism, Wired.com, citing an newly produced USGS map of the ecosystems of the United States, hoped that wildlife managers had a new tool -- and new tools are certainly needed.  An AP News story by Dan Joling on polar bears led with the statement that "The iconic bears are threatened with extinction, and so far nothing much is being done."  Then again -- as frequently noted here at ESA blawg -- the story also recognized that listing a species as threatened or endangered, due to climate change, will solve nothing, because the ESA lacks any meaningful tools to address human induced but global scale climate issues.  

As for the list of new lawsuits?  The Center for Biological Diversity sued FWS over the sage grouse, and filed a notice of intent to sue related to the plains bison, striped newt, Berry Cave salamander, Puerto Rican harlequin butterfly, Ozark chinquapin, western gull-billed tern and Mohave ground squirrel. For several of these rare species, the agency has missed legal deadlines by years..  WildEarth Guardians sued over the Mexican Spotted Owl too.

***

P.S.  I just returned from a trip to Alaska, and must agree with the recent HuffingtonPost.com article noting the abundance of bald eagles.  A belated Happy Fourth of July to all my readers!

Going deeper yet: BP's Deepwater Horizon disaster will have far-reaching effects on sea turtles, fisheries, and future ESA consultations.

06/07/2010

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The life-altering Deepwater Horizon oil disaster will have immediate implications for regional implementation of the Endangered Species Act.  In the near future, NOAA and FWS will probably need to re-evaluate many biological opinions and other documents to reassess the status of many endangered and threatened species, especially sea turtles.  That reassessment, in turn, could affect many people and future projects, and disproportionately, the Gulf of Mexico fishermen.

The Gulf of Mexico is of incredible importance to five of the seven various sea turtle species.  See, e.g., Padre Island National Seashore.  As a result, each year, Gulf of Mexico fisheries endeavor to protect sea turtles, using gear such as turtle excluder devices and circle-shaped hooks.  See NOAA's gear strategies.  But even the best fishing practices still result in "incidental take" of turtles, including mortality, as well as harm due to accidental hooking.  In the biological opinions that consider the impacts on sea turtle species, the Gulf of Mexico fisheries receive very low allowances of incidental take before the ESA required reasonable and prudent measures put the fisheries at risk of being closed.  See, e.g., 2009 spiny lobster fishery biological opinion(allowing as little as one turtle mortality) and NOAA Southeast Regional Office(with links to other biops).  These numbers are low because, in reaching its conclusions on the allowable incidental take for each biological opinion, NOAA considers the cumulative fishery take to ensure that the total number of anticipated sea turtle mortality, for all fisheries, will not pass the prohibited threshold of "likely to jeopardize the continued existence of the species."  ESA Sec. 7(a)(2).  (This type of cumulative take analysis has been an especially difficult problem for the U.S. Fish & Wildlife Service.  See GAO Report.)

Unfortunately, none of the prior biological opinions, on any of the fisheries, considered the potential effects of an extraordinary oil disaster in the Gulf of Mexico.  While oil spills were understood and acknowledged as a problem for the species, no prior biological opinion ever fathomed a gaping hole at the bottom of the ocean that would destroy massive areas of habitat, poison food sources, and physically suffocate species.  Today, at least 280 sea turtle takes have occurred, with at least 234 stranded dead.   See NOAA and Gulf Restoration Network.

OiledTurtle.jpg
The BP-oil-coated turtle above got lucky, and was rescued.  Image from ProPublica, courtesy of  Louisiana Department of Wildlife and Fisheries.

The BP disaster, and the emerging data on sea turtle mortality, probably constitutes "significant new information" that requires a new ESA Section 7 consultation process and that will lead to dozens of modified biological opinions. Due to the oil disaster, the "environmental baseline" and "status of the species" has changed.  The result could be even lower incidental take authorizations, and maybe even quicker fisheries closures.  Moreover, NOAA will also need to revise its recent recovery planning and status review documents for sea turtle species.  New designations of critical habitat may be needed, if the Deepwater Horizon disaster has destroyed habitats.

The Endangered Species Act's rigid and relentless logic will apply to more than just sea turtles.  NOAA, for example, will need to think about the effects of the disaster upon the petition to list 82 coral species.  FWS may need to reconsider its recent delisting of the brown pelican.   See The Independent (UK).  The disaster affected countless other unlisted species, too.  Recently discovered deep water coral habitats may be destroyed, and Bluefin tuna suffer, leading environmental advocacy groups to petition for yet another species to be listed.  In the end, many, many species will be affected once the unknown impacts of millions (maybe even billions?) of gallons of oil and dispersants finally reach the Gulf of Mexico's loop current, and eventually the Atlantic gulfstream.

Sadly, we've been here before.  Like Harry Truman said, "The only thing new in this world is the history that you don't know."  Environmental advocacy groups have fought over the failure to sufficiently plan for oil spill impacts on marbled murrelets.  See, e.g., EPIC litigation.  In fact, oil spills are a well understood threat to that species, and the effects of oil spills (albeit not of BP catastrophe size) are routinely considered during the ESA implementation process.  See, e.g. FWS critical habitat rule and 1997 Recovery Plan.  In Alaska, sea otters faced similar problems after the Exxon Valdez.

A generation from now, everyone may simply adapt to and accept the lower numbers of sea turtles, reefs, pelicans and other wildlife in the Gulf of Mexico.  The disturbing shifting baselines trend will continue, with future generations considering places to be "pristine" that their ancestors would have scoffed at -- the same ancestors who destroyed those same places.  But our environmental conscience, best signified by the Endangered Species Act, will desperately continue to try to convince homo sapien to alter its own behavior to prevent the extinction of other species.  

Still, the ESA failed to prevent, nor even mitigate, this disaster.  An old Spanish proverb says, "Laws, like the spider's web, catch the fly and let the hawk go free."  Apparently, for years, BP was the hawk, and now the fishermen look like flies.  Maybe, in the end, BP will truly "make things right" -- as they promise in their ad campaign.  Or perhaps the Department of Justice will prosecute BP for Endangered Species Act violations, and its unpermitted take of hundreds of endangered and threatened sea turtles.  But even if crimes are prosecuted, the fishermen's dilemma remains.  

NOAA has already closed substantial portions of the Gulf of Mexico to fishing.  The crab, lobster, oysters, reef fish, shrimp, and pelagic species, and the fishermen who hunt for them, are suffering (or may soon).  But even if the fisheries themselves survive, or avoid the impacts, the ESA could compound the difficulties for the already impacted fishermen.  Fortunately, NOAA already understands this problem, and has been working on developing new ways to manage fisheries and their impacts on sea turtles.  See NOAA's Strategy for Sea Turtle Conservation and Recovery.  Still, as the gallons of oil in the Gulf of Mexico multiply, the future challenges of fishery regulation and ESA implementation intensify.

***

75 Fed. Reg. 30769 / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Proposed Rules
DEPARTMENT OF INTERIOR / Fish and Wildlife Service
50 CFR Part 17
DEPARTMENT OF COMMERCE / National Oceanic and Atmospheric Administration
50 CFR Parts 223 and 224
Endangered and Threatened Species; Proposed Listing of Nine Distinct Population Segments of Loggerhead Sea Turtles as Endangered or Threatened; Extension of Comment Period

SUMMARY: NMFS and USFWS hereby extend the comment period on the proposed listing of nine distinct population segments of loggerhead sea turtles as endangered or threatened, which was published on March 16, 2010, until September 13, 2010. In addition, NMFS and USFWS will hold a public hearing in Berlin, MD, on June 16, 2010 to answer questions and receive public comments.

KEITHINKING: Public comment will probably include significant attention to the long-term effects of Deepwater Horizon upon the global populations of sea turtles.

Going deep on the oil disaster: BP's Deepwater Horizon reveals need for improvements to Endangered Species Act implementation

05/29/2010

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Earlier this week, the Obama Administration announced its re-evaluation of National Environmental Policy Act implementation practices related to oil and gas exploration.  See Council on Environmental Quality Federal Register Notice, 75 Fed. Reg. 29996 (Friday, May 28, 2010).  Our nation needs a similar review of Endangered Species Act implementation, which should include consideration of disasters in the consultation process.  

The director of the Minerals Management Service, an environmental lawyer, already resigned due to British Petroleum's (BP) disaster.  See Washington Post.  And surely, the Mineral Management  Service (MMS) deserves much of the blame for its woefully inadequate regulation and oversight of the oil industry.  But what happened to the Endangered Species Act during that process?  The law that the U.S. Supreme Court once famously wrote "admits of no exception" in TVA v. Hill obviously made exceptions for BP.

To the credit of its many committed professionals and scientists, the National Marine Fisheries Service (NMFS, also known as NOAA Fisheries), raised serious red flags about the MMS and the oil and gas exploration process in a September 2009 letter.  See highlighted version from New York Times, especially pages 10, 23-24.  Throughout the document, NMFS offered to provide Marine Spatial Planning information to assist in siting decisions.  They warned about risks to endangered species and coastal and coral habitats.   And, demonstrating well-founded foresight, NMFS emphasized the historic underestimation of oil spills and consequences.

In fact, for many years, the oil industry has broken down the Endangered Species Act consultation process into fragments to reduce the scope of the inquiry.  The Section 7 ESA Consultation Handbook -- a very important ESA implementation document developed by NMFS and the U.S. Fish & Wildlife Service -- actually allows this type of "segmented" consultation process for the oil and gas industry: "Incremental step consultation is most appropriate for long-term, multi-staged activities for which agency actions occur in discrete steps, such as the development of oil and gas resources on the Outer Continental Shelf."  But the Section 7 Consultation Handbook also noted the stern language of a significant Ninth Circuit opinion, Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988), where the court rejected a "segmented" consultation for an oil lease in a National Forest, holding that: "the FWS cannot ignore available biological information or fail to develop projections of oil and gas activities which may indicate potential conflicts between development and the preservation of protected species."

Indeed, the segmentation of consultation presented a significant challenge to NMFS when it attempted to evaluate the MMS plan for the Outer Continental Shelf (OCS) Oil and Gas Leasing Program for 2010-2015.  In that September 2009 letter, NMFS explained its concern: "It is unclear from the plan how MMS intends to engage NOAA in coordination regarding threatened and endangered species and marine mammals at the different stages in the leasing process. Under this section it appears that MMS does not intend to consult with NOAA under the authorities of the Endangered Species Act and the Marine Mammal Protection Act until the lease sale stage. MMS should clarify how coordination will occur so that effects of oil and gas development on listed species and marine mammals can be fully considered prior to any lease sale."

Ultimately, in the case of the Deepwater Horizon disaster, the segmented consultation process, and the ESA regulations, allowed BP to do exactly what the Ninth Circuit and NMFS wanted to avoid, and no one developed projections for the potential conflicts between oil development and species preservation.  These tensions were readily identifiable.  On the one hand, oil development is an economic necessity, and a total catastrophic failure, leading to an unplugged well at the bottom of the Gulf of Mexico, was a deemed to be a highly unlikely event (but not unimaginable, and yes, even foreseeable).  On the other hand, allowing the unlimited and unstopped flow of massive amounts of oil into the Gulf of Mexico unquestionably jeopardizes the continued existence of the endangered and threatened species in the Gulf of Mexico, so a way to plug the well is an absolute necessity, and probably should have been considered as part of any effort to ensure the survival and recovery of listed species.  Unfortunately, even if the tensions had been discussed between BP, MMS and NMFS, the ESA did not allow NMFS to do anything to regulate them.

Rather than requiring consideration of or consultation on a contingency plan for emergency management, the ESA limits its analysis to actions that are "reasonably certain to occur."  50 C.F.R. 402.02 (defining "effects of the action").  This clause, as the Section 7 Consultation Handbook explains, is a key factor in assessing and applying cumulative effects in biological opinions.  And that is where the ESA fails.  ESA implementation does not provides for consultation on disaster planning, nor does the ESA provide authority or guidance for minimizing and mitigating the effects of an action upon listed species in the event of a disaster.  Rather, the ESA regulations are entirely reactive, allowing for informal consultation only once the emergency actually occurs. 50 C.F.R. 402.05.

In litigation, some environmental advocacy groups have expressed similar concerns with the lack of foresight in the ESA consultation process.  For example, in Ground Zero Center for Non-Violent Action v. U.S. Department of the Navy, 383 F.3d 1082 (9th Cir. 2004), environmental groups argued that the Navy had failed to review the probable significant environmental impacts of an accidental explosion of a Trident II(D-5) missile during operations at its base in Bangor, Washington.  The environmental advocacy groups argued that the Navy failed to consult NMFS regarding the possible effects of such an explosion on threatened salmon species inhabiting the waters adjacent to the Bangor submarine base.  Ultimately, the court held that no ESA Section 7 consultation was required, in part, because the risks were remote.

Ground Zero, in its national security context, sounds like common sense.  If the nuclear weapons blow up, residents of Washington State will have much more than salmon to worry about.  But bad facts make bad law.  In other contexts, such as BP, some preventative planning would make sense.  Otherwise, the consequence of the "reasonably certain to occur" approach is that, if and when the unreasonable and uncertain disaster actually occurs, wildlife preservation and endangered species protection will certainly be a low priority.  Of course, it is entirely appropriate and necessary to put people and their property as a top priority, and to focus disaster funds and responses on those needs.  In fact, the ESA creates an express exemption from its requirements for "the repair or replacement of a public facility substantially as it existed" prior to a disaster.  ESA, Sec. 7(p).  But the BP disaster reveals a different problem.  

Even some small degree of advance planning, had it been required by the ESA, could have enabled much faster decision-making and response times for BP, the Federal Government, and for the endangered and threatened species in the Gulf.  Consider the timetable.  The tragic disaster occurred on April 20, and then:
  • on April 26, the Deepwater Horizon Unified Command decided to send submersible remote operated vehicles to the bottom of the Gulf;
  • on May 7, BP deployed a cofferdam (in the failed first effort to stop the flow) because BP had to wait for its manufacture;
  • on May 15, EPA approved subsea use of dispersants; and
  • on May 20, EPA directed BP to use a less toxic dispersant.

Weren't all of the items above self evident?  The oil rig was at the bottom of the ocean, so of course remote devises needed to be deployed.  Shouldn't a cofferdam (or at least a "top hat") have been constructed and ready from the first moment the drilling began, because how else did BP (or anyone else) expect to stop the flow?  Shouldn't dispersant analysis have been done before the disaster ever occurred?  Call it Monday morning quarterbacking, perhaps.  But isn't it tragic that, by failing to even consider the possibility of a disaster, everyone failed to minimize and mitigate for the impacts of this disaster in such obvious ways?  The reality is that none of these questions were even considered.  (In fact, under NEPA, the project also got an abbreviated review. See The Wildlife News.)  The law required the agencies to protect endangered and threatened species only to the extent that an event was "reasonably certain to occur," and BP's Deepwater Horizon disaster was never reasonably certain to occur.  

But it did occur.  And now it is reasonably certain that changes are needed.  

There's lots of blame to go around.  But as Congress holds its committee meetings, it should hold up a mirror, and reflect on the law it makes.  Two options include amending the ESA to prohibit segmented consultation for the oil industry, and to develop new procedures for contingency planning and disaster consultation when warranted by projects (like oil drilling) that present massive risks and threats for wildlife.  (If an exception is needed for national defense, as suggested by Ground Zero, then so be it.)  

Cessation of oil drilling is reasonably certain not to happen.  But helpful ESA reforms can and should be on the horizon.

DispersantApplicationTraining.jpg
More than 600,000 gallons of chemical dispersants have been used in the Gulf of Mexico, and as shown by the photo from Youngstown-Warren Air Reserve Station above, military aircraft routinely train in dispersant application in the Gulf of Mexico.  The long-term effect of this remains unknown, but as this ESA musing suggests, the effects of massive amounts of dispersants could have -- and should have -- been considered before the disaster occurred.  For more information, read the article on dispersant use from BBC World Service.

ValdezHappenAgain.jpg
Thanks to Jotman.com for creatively rediscovering this one.  

***

Keithinking: More to follow. The next ESA musing will discuss the potential consequences of the BP Deepwater Horizon disaster for future ESA consultations.
 

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Keith Who?

Keith W. Rizzardi, a Florida lawyer, is board certified in State & Federal Administrative Practice. A law professor at St. Thomas University near Miami and Special Counsel at Jones Foster Johnston & Stubbs in West Palm Beach, he previously represented the U.S. Department of Justice and the South Florida Water Management District. A two-time Chair of The Florida Bar Government Lawyer Section, he currently serves as Chair of the Marine Fisheries Advisory Committee

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16 U.S.C. §1531 et. seq.

"The Congress finds and declares that -

(1) various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation;

(2) other species of fish, wildlife, and plants have been so depleted in numbers that they are in danger of or threatened with extinction;

(3) these species of fish, wildlife, and plants are of aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people."

16 U.S.C. §1531(a)

The purpose of the Endangered Species Act is "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved."

16 U.S.C. §1531(b)

Reasons for the ESA

1. ECOLOGICAL: Species have a role in the web of life. Who knows which missing link causes the collapse?

2. ECONOMICAL: Species have actual, inherent, and potential value -- some as food, others as tourist attractions. As Congress said, these species have "aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation." 16 U.S.C. §1531(a).

3. MEDICAL: Although perhaps a subset of economics, medical reasons for the ESA deserve special note, because today's listed species could be tomorrow's cure for cancer.

4. MORAL: With each extinction, we take something from others. We must prevent "the tragedy of the commons."

5. THEOLOGICAL: Even the Bible instructed Noah to save God's creatures, male and female, two by two.

Reasons for ESA Reform

1. ECOSYSTEM (MIS)MANAGEMENT. The ESA encourages selective review of individual species needs, even though nature pits species needs against one another. Furthermore, the ESA's single-species focus detracts from efforts to achieve environmental restoration and ecosystem management.

2. SCIENTIFIC UNCERTAINTY: While the ESA requires consideration of the "best available science," sometimes the best is not enough, forcing decisions under great uncertainty. The ESA, however, is generally proscriptive, regulatory, and absolute; as a result, it insufficiently allows for adaptive management.

3. LITIGATION: ESA implementation is at the mercy of the attorneys. Cases involving one listed species can serve as a proxy for hidden agendas, especially land use disputes, and regardless of actual species needs, litigation and judicial orders set agency priorities. In the end, realistic solutions disappear amidst court-filings, fundraising, and rhetoric.

4. PRIVATE LANDS: Up to 80% of ESA-listed species habitat is on privately owned lands. While the ESA can place reasonable restrictions on private property rights, there are limits. But the best alternatives have limits too, such as Federal land acquisition and the highly controversial "God Squad" exemptions.

5. FUNDING: Protecting species is expensive, but resources appropriated by Congress are limited. An overburdened handful of federal agency biologists cannot keep pace with the ESA's procedural burdens, nor court-ordered deadlines (see #3 above). Provisions requiring agencies to pay attorney's fees to victorious litigators -- who challenge the hastily written documents prepared by overworked bureaucrats -- simply exacerbate the problem.

"Every species is part of an ecosystem, an expert specialist of its kind, tested relentlessly as it spreads its influence through the food web. To remove it is to entrain changes in other species, raising the populations of some, reducing or even extinguishing others, risking a downward spiral of the larger assemblage." An insect with no apparent commercial value may be the favorite meal of a spider whose venom will soon emerge as a powerful and profitable anesthetic agent. That spider may in turn be the dietary staple of a brightly colored bird that people, who are notoriously biased against creepy crawlers and in favor of winsome winged wonders, will travel to see as tourists. Faced with the prospect that the loss of any one species could trigger the decline of an entire ecosystem, destroying a trove of natural and commercial treasures, it was rational for Congress to choose to protect them all. -- Alabama-Tombigbee Rivers Coalition v. Kempthorne, 477 F.3d 1250, 1274-75 (11th Cir.2007), cert. denied, 128 S.Ct. 8775 (2008), quoting Edward O. Wilson, The Diversity of Life 308 (1992).

"This case presents a critical conflict between dual legislative purposes, providing water service for agricultural, domestic, and industrial use, versus enhancing environmental protection for fish species whose habitat is maintained in rivers, estuaries, canals, and other waterways that comprise the Sacramento-San Joaquin Delta… This case involves both harm to threatened species and to humans and their environment. Congress has not nor does TVA v. Hill elevate species protection over the health and safety of humans... No party has suggested that humans and their environment are less deserving of protection than the species. Until Defendant Agencies have complied with the law, some injunctive relief pending NEPA compliance may be appropriate, so long as it will not further jeopardize the species or their habitat." -- The Consolidated Delta Smelt Cases, 2010 WL 2195960 (E.D.Cal., May 27, 2010)(Judge Wanger)(addressing the need for further consideration of the human consequences of ESA compliance).

Notable quotables

"A nation, as a society, forms a moral person, and every member of it is personally responsible for his society." – Thomas Jefferson (1792)

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"The destruction of the wild pigeon and the Carolina parakeet has meant a loss as sad as if the Catskills or Palisades were taken away. When I hear of the destruction of a species, I feel as if all the works of some great writer had perished."

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"Conservation means development as much as it does protection. I recognize the right and duty of this generation to develop and use the natural resources of our land; but I do not recognize the right to waste them, or to rob, by wasteful means, the generations that come after us." – Theodore Roosevelt (Aug. 31, 1910)

Noah's orders

GENESIS, Chapter 6: [v 20] "Of the birds according to their kinds, and of the animals according to their kinds, of every creeping thing of the ground according to its kind, two of every sort shall come in to you, to keep them alive. [v 21] Also take with you every sort of food that is eaten, and store it up; and it shall serve as food for you and for them."

GENESIS, Chapter 9: [v12] "And God said, This is the token of the covenant which I make between me and you and every living creature that is with you, for perpetual generations"

"The power of God is present at all places, even in the tiniest leaf … God is currently and personally present in the wilderness, in the garden, and in the field." – MARTIN LUTHER