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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.

« Going deep on the oil disaster: BP's Deepwater Horizon reveals need for improvements to Endangered Species Act implementation | Main| NOAA enacts take prohibition rule for green sturgeon »

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

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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.

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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.