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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.

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Where have all the scrub jays gone? Has incrementalism in Palm Beach County extirpated the species?

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The Seacrest Scrub Natural Area is a small slice of natural florida, surrounded by a quaint, aging community near the resurging areas of Boynton Beach and Delray Beach, Florida.  Although historically the perfect habitat for the threatened Florida scrub jay, the Palm Beach County recreational area has not been home to the species for years.  

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Photo of the Seacrest Scrub Natural Area, from Palm Beach County government

For four weeks this summer, volunteers again searched in vain for the species.  See Palm Beach Post (July 8, 2008).  The tape recorded bird calls were returned only by the sounds of silence (and the occasional passing car.)  According to Audubon, the last time the bird was spotted in Palm Beach County was December 2006.  See Palm Beach Post (July 12, 2008).  The volunteers cite development as the cause, but the Endangered Species Act didn't help.

In fact, even though the scrub jay is listed as a threatened species, the ESA, as administered by the U.S. Fish and Wildlife Service, has allowed a steady stream of small scale impacts to the species.  For example, as reported in the April 14, 2008 and June 11, 2008 postings of this ESA blawg, FWS periodically receives habitat conservation plans (HCPs) from private landowners, and issues incidental take permits (ITPs) allowing impacts to the species.  Also, as noted on the FWS North Florida webpages, the agency also has survey protocols to assist those landowners in assessing small lots in urban areas.  Notably, the agency is simply doing its job, as Congress authorized it to do, and its cannot just stop the disappearance of the scrub jay habitat.

Extinction is forever.  The phrase has been marketed into our consciousness.  Fortunately, FWS, in a 2007 analysis, reassured the nation that the scrub jay is nowhere near extinction, as it explained in its Results section of the 5 Year Review: "Because scrub-jays are still well represented within their historic range, are relatively secure in three large metapopulations, likely to respond positively to ongoing management actions elsewhere, and have benefited from previous public land acquisitions, we believe that the scrub-jay is not likely to be in danger of extinction throughout all or a significant portion of its range and should therefore remain a threatened species."  Extirpation, in contrast, is a lesser-known concept, and one from which the scrub jay has not been saved, because while the species may exist in some places, and thus is not extinct, it does not exist in Southern Palm Beach County, and thus, may have been extirpated.  

The reality may be that the HCPs and ITPs are permitting the slow demise of the species at a regional level.  Sure, the Seacrest Scrub looks like perfect scrub jay habitat, but all the other similar private lands in Boca Raton, Delray Beach, and Boynton Beach were developed years ago.  And even if the environmental regulators had wanted to address and avoid "cumulative impacts" to scrub jays -- in other words, avoiding small scale impacts that together can result in very large impacts -- the ESA left them powerless.  Instead, permits can be (and were) issued, over and over, for tiny impacts to private lands, unless and until they reach the critical threshold of "likely to jeopardize the continued existence of the species" (or to "a significant portion of the range of the species.")  Under this approach, we must depend upon FWS to discern the point in time when one more permit is one too many, and at that time, FWS must deny the permit.  In the meanwhile, species impacts will continue, because, as Florida State University professor J.B Ruhl honestly observed, HCPs represent the right to kill endangered species, legally.  See J. B. Ruhl, How to Kill Endangered Species, Legally: The Nuts and Bolts of Endangered Species Act "HCP" Permits for Real Estate Development, 5 ENVTL. LAW. 345 (1999).  

Thus, HCPs and ITPs, while providing an important tool for addressing the rights of private property owners, also present undeniable consequences.  Even if listed species are not rendered extinct, local populations -- perhaps like the scrub jays in the Seacrest Scrub -- will still disappear, in full compliance with the Endangered Species Act.