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
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.
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?