Wetland protection by ESA listing petition: CBD seeks to list 404 species in Southeastern USA.
The Center for Biological Diversity outdid itself. Last month, CBD filed with the U.S. Fish & Wildlife Service a Petition to List 404 Aquatic, Riparian and Wetland Species from the Southeastern United States as Threatened or Endangered Under the Endangered Species Act (April 20, 2010).
In a word, WOW.
The cover letter suggests that the petition is consistent with the premise of ecosystem management and protection, and intends to be "more cost-effective than a species-by-species approach to listing responsibilities." It is unquestionably true that many species occupy a single ecosystem, and in such cases, an analysis of the one ecosystem can justify the listing of multiple species. But this petition is not about one ecosystem. The list of proposed species from scattered states speaks for itself: the Virginia Stone (VA & KY, page 67) Alabama Shad (AL, page 87), Bayou Bodcau Crayfish (AR, page 155), Greensboro Burrowing Crayfish (NC, page 170), Cumberland Dusky Salamander (TN, page 308), Cape Sable Orchid (FL, page 777) and the Miami Cave Crayfish (FL, page 936). The threats assessment also reveals the lack of any meaningful "ecosystem" approach: coal mining allegedly affects the mountainous white water habitats (pages 38-40), while urban runoff allegedly impacts the slow currents of Florida's rivers (page 381). The cumulative choice of 404 species -- an obvious reference to the Clean Water Act's Section 404 wetland permitting program -- says it all, conveying the objective of using the ESA to achieve more wetland protection in the Southeastern USA.
Eventually, this pugnacious petition could prove counterproductive, both for the federal agency charged to review it, and for the non-profit who proposed it.
A proposal to list 404 species places a nearly impossible burden on the U.S. Fish & Wildlife Service. In theory, FWS has 90 days to consider the petition and determine whether it contains sufficient information to warrant further review, and then, if it does, FWS must undertake the more rigorous review to determine whether or not to list each of the 404 species. That latter review is supposed to be done within a year, and a critical habitat designation should be completed concurrently (or at worst, no more than one year later). Moreover, if FWS agrees with CBD's petition, it would mean 404 more analyses for 404 different species, because the ESA generally does not consider an ecosystem as a whole; rather, the ESA prohibits take for every species. And ultimately, if FWS does not get all the analyses done "right" and within the applicable deadlines, then CBD can then file a notice of intent to sue. (And don't forget, if CBD wins or settles, it can seek attorney's fees too.)
CBD clearly understands the ESA, and how it works. The petition will attract attention to, and raise the profile of, four hundred and four otherwise obscure species. Companies and agencies will learn about and offer comments to FWS on the status of those 404 species. And FWS may even elect to list some of those species as threatened or endangered. Still, over the long run, CBD could become the victim of its own success. I worry about whether or not, sooner or later, the ESA will break, weighed down by the procedures and requirements that CBD frequently invokes.
CBD wants to list 404 species; others will cite this petition as 404 more reasons for ESA reform.
According to the CBD petition, Kirtland's Snake (page 246) a small, nonpoisonous snake species, occupies wet, relict prairie areas, including prairie fens, meadow wetlands, open and wooded wetlands, seasonal marshes, open swamps, and other water associated habitat . However, because these habitats are increasingly rare, the snake is currently found most often in urban areas: vacant lots near to streams or wetlands provide the closest approximation of their preferred habitat in most regions. It is currently known in Illinois, Indiana, Michigan, Missouri, Ohio, and Pennsylvania. Photo of Clonophis kirtlandii from www.pitt.edu