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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.


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.


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


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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.

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


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



The experience & skills discussed in links below were not reviewed or approved by The Florida Bar. The facts and circumstances of every case are different; each one must be independently evaluated by a lawyer and handled on its own merits. Cases and testimonials may not be representative of all clients’ experience with a lawyer. By clicking the links below, you acknowledge the disclaimer above.

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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)


"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."


"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