|
Recoverability Prospects (FWS 2002) |
18 |
|
Threat Level (FWS 2002) |
18 |
|
FWS Listings by Priority (2002) |
19 |
|
Recovery Achieved (FWS 2002) |
21 |
|
Recovery Status (FWS 2002) |
22 |
|
Recovery Status (Narrative NMFS 2002) |
28 |
|
Recovery Status (Table NMFS 2002) |
28 |
|
“Entities” with largest
reported expenditures in FY 2003 |
36 |
|
“Species” with largest
reported expenditures in FY 2003 |
36 |
|
FWS Priority “1C” species
expenditure and ranking FY 2003 |
37 |
|
Total Federal and State ESA Expenditures |
38 |
|
ESA Expenditures by Agency |
38 |
|
ESA Expenditures by Agency FY 2003 |
39 |
|
US FWS ESA Expenditures by FY |
40 |
|
NMFS ESA Expenditures by FY |
40 |
|
Section 6 Funding |
41 |
|
BPA ‘Other’ Expenditures
by Fiscal Year |
42 |
|
Bureau of Reclamation ESA Expenditures by FY |
42 |
|
Army Corps of Engineers ESA Expenditures by FY |
43 |
|
USDA Forest Service ESA Expenditures by FY |
43 |
|
Expenditures by Taxon FY 2003 |
44 |
|
Expenditures by Taxon FY 2003 |
44 |
|
Expenditures on ‘Non-Charismatic’ Species |
45 |
|
Expenditures on Species Listed with Erroneous Data |
48 |
|
Informal Consultations Completed |
49 |
|
Formal Consultations Completed |
50 |
|
Habitat Conservation Plans Completed |
53 |
|
California FWS Species with Critical Habitat |
58-59 |
|
Florida FWS Species with Critical Habitat |
60 |
|
Texas FWS Species with Critical Habitat |
60 |
I. Executive Summary
There is increasing recognition from most quarters that the Endangered
Species Act (ESA) needs to be improved. Exactly what those improvements
should be is less uniform. This report examines the implementation
of selected aspects of the endangered species program relying predominately
on information provided by the primary implementing agencies, the United
States Fish and Wildlife Service (FWS) and National Marine Fisheries
Service (NMFS) and offers some recommendations for possible improvements
to the program.
Debate over the ESA has traditionally been highly polarized. For
example, compensating landowners for takings or reductions in property
value has been opposed by some who argue updating the law to address
this is not necessary. While consensus on other issues such as the
need for increasing conservation incentives and the role states play
in endangered species conservation has begun to emerge, one of the
most debated aspects of ESA implementation continues to be whether
the ESA is effectively conserving endangered and threatened species.
While there have been significant strides in conserving individual
species such as the whooping crane, red-cockaded woodpecker and gray
wolf, few species have been delisted (removed from the endangered list)
or downlisted (changed in status from endangered to threatened) because
of successful ESA conservation efforts. Some argue that the number
of recovered species is an unfair measure, asserting that the three
decades the ESA has been in existence is an insufficient amount of
time for the lengthy process of species recovery and point to listed
species that have not gone extinct as evidence the ESA ‘saves’ species.
From the opposing perspective, while recovery to the point of delisting
may require a substantial amount of time for many species, after three
decades more progress should be demonstrable through species that have
recovered and been delisted. Even if a species has increased in numbers
or distribution or the threats facing the species have been reduced,
if it has not been delisted on the basis of recovery, the ESA’s
prohibitions and regulations remain applicable and the ESA should not
be a ‘one way street.’
Of 40 total species removed from the list, 10 domestic species were
delisted because of “recovery”. Of 33 reclassified species,
10 domestic downlistings (a change from endangered to threatened status)
reflected a reduced threat assessment which also allowed more flexibility
in management. The FWS’s most recent report to Congress (Fiscal
years 2001-2002) shows that 77 percent of listed species fall in the
0 to 25 percent recovery achieved bracket and 2 percent fall in the
76 to 100 percent recovery achieved bracket. 39 percent of the FWS
managed species are of uncertain status. Of those with an assessed
trend, at one end of the spectrum are 3 percent possibly extinct, 1
percent occurring only in captivity and 21 percent declining and at
the other end are 30 percent stable and 6 percent improving. These
assessments however are subjective. Additionally, the assessment that
a species is improving or stable may reflect, for example, a reduction
in perceived threats or corrections to inaccurate threat assessments
that stemmed from erroneous data rather than actual changes in species’ trends
that are demonstrated by improved numbers, distribution or other such
measurements. Consequently, a meaningful assessment of conservation
trends under the ESA using these data is not possible.
The data used
to list a number of species has been subsequently determined to be
erroneous and species that likely do not merit classification
as endangered or threatened remain listed. This can consume resources
that could be directed to species that do merit listing. The assignment
of recovery priorities appears highly skewed and the recovery priority
for some species seems questionable. A meaningful distinction between
endangered status and threatened status has been blurred as has been
the framework for the mechanism of critical habitat. Expenditure
reporting has improved but presents an incomplete picture of financial
resources
dedicated to endangered species. Workloads for litigation regarding
activities such as consultation and listing under the ESA’s
complex structure compete for resources that could otherwise be directed
at
recovery efforts. The demands associated with ESA Section 4 determinations
in combination with the pace of species listings and delistings,
the number of possible future additions to the list and the economic
impact
of listings likely indicate that the current program is not sustainable.
II. Overview
Currently there are some 1,264 domestic endangered and threatened
species listed under the ESA. Additionally, there are 562 foreign ESA
listed species. The vast majority of these species fall under the jurisdiction
of the FWS. The remaining are under the jurisdiction of NMFS or are
managed jointly by the two agencies.
Since the ESA was enacted, there have been ten domestic species delisted
as recovered. For three of the 10 recovered species (American peregrine
falcon, arctic peregrine falcon and brown pelican) the banning of DDT
was a cause, if not the primary cause in recovery according to the
FWS. Erroneous data regarding population numbers, population trend,
distribution or reproductive potential led to an initially overestimated
threat for six of ten recovered species including the alligator, brown
pelican, gray whale, Hoover’s woolly star, Tinian monarch and,
to a lesser extent, the Aleutian Canada goose. One recovered species,
the Columbian white-tailed deer, was delisted over a part of its range
and remains endangered in the remainder of its range. Several recovered
species including the Columbian white-tailed deer, Aleutian Canada
goose and alligator benefited from limitations placed on harvesting.
Several species (Aleutian Canada goose, American peregrine falcon and
the plant Robbins’ cinquefoil) benefited from conservation activities
that included eradication of predators, introductions, cultivation,
transplanting and habitat management. Similarly, ten domestic species
were reclassified as threatened based upon a reduced threat assessment.
Pursuant to the ESA, the FWS and NMFS are to produce a Report to
Congress every two years that provides information about recovery efforts
directed at listed species. The FWS report includes data on the “status” and “recovery
achieved” of listed species as well as other information. As
of the FWS’s most recent report, a majority of listed species
(63 percent) are considered to be of uncertain or declining status
or are possibly extinct. While some 36 percent are considered stable
or improving, these assessments (like that of declining) are in large
part ‘guesstimates’. Further, assessments of stable or
improving do not necessarily indicate what they would seem to indicate.
The values stable or improving can indicate that a negative population
trend has been halted or that there been a measurable increase in the
numbers or distribution of a species. However, these values can also
indicate that earlier data regarding the species has been subsequently
determined to be erroneous.
For example, data gathered after listing showed that there were not
some 1,500 individual specimens of Johnston’s frankenia, a plant,
as was believed at the time of listing but more than 9,000,000. This
species was assessed as improving in the most recent FWS report and
has been proposed for delisting.
Such improving or stable assessments may also indicate that what
biologists perceived as a threat, such as the ‘inadequacy of
existing regulatory mechanisms’ has been reduced because property
ownership changed, management contracts were negotiated, or other laws
or regulations affecting the species were enacted. For example, Hoover’s
woolly star, another plant that was significantly undercounted at the
time of listing and eventually delisted, was assessed as stable in
the FWS’s most recent Report to Congress. The species was considered
to be stable in part because of the newly discovered specimens and
in part because of conservation agreements with landowners.
By another FWS measurement, “recovery achieved”, 93percent
of species fall in the 0-50percent range and 77percent fall in the
0-25percent range. On the other end of the scale, the FWS reports that
only 2percent of listed species (25) fall in the 76percent or more
recovery achieved range. In fact, as of the most recent report, there
were more listed species that were possibly extinct (35) than there
were species in the 76percent or more recovery achieved range (25).
As with the status measurement, the recovery achieved measurement
may also reflect factors such as new information that reveals original
listing data was in error. It is important to recognize that an assessment
that, for example, a listed species is improving following the discovery
that the species is more abundant is not just misleading ‘spin’.
The assessment of a species’ status and the actions remaining
to achieve recovery are tied to threat based assessments. If, for example,
a species’ known numbers increase due to new surveys, then the
threat may be reassessed. An increase in known numbers or distribution
may show the species to be closer to recovery criteria than previously
believed. Populations discovered on public property may be believed
by biologists to be more secure than those previously known only from
private property. Consequently, the threat may be considered reduced
and goals of establishing secure populations are less difficult to
meet. In such cases the species may be assessed as improving or be
moved to a higher recovery achieved bracket.
At the same time, it is important to remember that such changes in
information about the species, while valuable in management decisions,
do not reflect actual improvement of the species’ condition but
a correction to earlier erroneous data. Existing law requires listing
determinations to be made based on the “best scientific and commercial
data available.” ‘Best’ is a qualitative and comparative
term and currently presents a low threshold. This standard can and
does lead to listing of species based on incorrect assessments of the
threats species face.
As of the FWS’s most recent Report to Congress, some 3 percent
of listed species are assessed as ‘possibly extinct’ and
only two of these have been subsequently delisted. (It should be noted
that the vast majority of these possible extinctions likely occurred
prior to listing and in cases prior to the enactment of the ESA). One
of these, the ivory-billed woodpecker has been recently ‘rediscovered.’
Historically, more species have been delisted and downlisted following
the determination that original data was erroneous than have been delisted
and downlisted on the basis of a reduced threat or recovery. There
are likely a number of other currently listed species that should also
be delisted or downlisted on the basis of erroneous data. The listing
of species that do not merit endangered or threatened status can consume
conservation resources from species that are actually endangered or
threatened.
For example, the process for removing species that were added to
the list on the basis of erroneous data, or that are believed to be
extinct, is essentially the same as it would be for any other species
requiring proposed and final rules. The FWS estimates the approximate
average cost range to publish proposed and final rules to implement
any such determination to be $75,000 - $125,000 and $50,000 - $140,000
respectively.
Listed species that do not merit continued endangered or threatened
classification may trigger other costs as well, as was the case with
the Preble’s meadow jumping mouse, a species the FWS recently
proposed for delisting. An economic impact assessment accompanying
the critical habitat designation for this species estimated costs to
be $79 – $183 million over ten years. These costs fall upon other
governmental agencies and private parties.
Another example of costs resulting from species listed with erroneous
data is some 248 federal actions that were reviewed for their effects
upon Eggert’s sunflower. This species is now proposed for delisting
because the numbers and distribution of the species were underestimated
(increasing from 34 known sites at the time of listing to 279 known
sites) and the threats to the species were overestimated (the species
may actually benefit from human activities such as forest thinning
and brush clearing as it occurs in disturbed areas). The FWS was also
compelled to reconsider its determination not to designate critical
habitat for this species after being sued by the Southern Appalachian
Biodiversity Project. The FWS again determined it would not be prudent
to designate critical habitat when it proposed delisting the species
on the basis of erroneous data.
Expenditures of resources on species which do not merit listing also
increases the burdens on agencies that already carry large workloads
in terms of listing, a process driven in large part by litigation,
consultation, permitting and other ESA activities. As regards the litigation
workload, the FWS reports in its most recent budget justifications
that the agency faces 34 active lawsuits with respect to 48 species,
40 court orders involving 88 species, and 36 notices of intent to sue
involving 104 species. This litigation workload was reported only with
respect to the program’s listing activities.
The FWS reports that the consultation workload for Fiscal Year 2004
included over 71,000 informal consultations and over 4,000 formal consultations.
The consultation requirements of the ESA also significantly affect
other agencies, and in cases, appear unduly burdensome. For example,
among incidents reported by US Forest Service and Bureau of Land Management
officials was a consultation that regarded allowing a Native American
tribe to harvest a single cedar tree for use as a ceremonial canoe.
It required about two years.
Even without the volume of litigation affecting the listing program,
the potential resources demanded by the listing process are huge. Using
the low end of the FWS’s average cost ranges for proposed and
final listing regulations, designation of critical habitat and performing
accompanying economic and NEPA assessments, a simplistic cost projection
for the 283 current candidate species exceeds $150 million. These activities
occur at the front end of the program and are followed by other program
actions like recovery, consultation and law enforcement that consume
a much larger share of the implementing agencies’ budgets. To
put this cost in perspective, the FWS’s Fiscal Year 2004 budget
for listing (which includes critical habitat designation) was $12.1
million, providing a strong indication that the current process is
not sustainable, especially in the current budget atmosphere.
The FWS also produces annual reports detailing expenditures on listed
species. The reports have improved significantly in recent years but
clearly still fail to include many ESA costs born by federal and state
agencies that are within the scope of the reports. Additionally, the
report’s scope as provided by law, fails to capture large expenditures
on endangered and threatened species, including those born by counties,
cities, businesses and private persons.
In the most recent reports, FWS and NMFS ESA expenditures are well
under half of all Federal expenditures. The FWS and the NMFS expenditures
are substantially exceeded by those reported by other Federal agencies
even though these other agencies’ expenditures are likely underreported.
Particularly noteworthy among recently reported Federal expenditures
are the Bonneville Power Administration’s reported Fiscal Year
2001 expenditures approaching $1.7 billion during the West Coast energy
crisis. Most of these costs are passed on through increases in power
rates.
Economic analyses conducted in association with critical habitat designations
have indicated similarly large potential costs. For example, economic
analyses conducted for the California tiger salamander, California
gnatcatcher, and a group of West Coast species fell in a range of about
$100 million to $1.3 billion.
The cost of the ESA is clearly measured in billions but an accurate
accounting of Federal, state and private expenditures is not determinable
with currently available data. Critical habitat may have its most significant
impact in California where more than 10 percent of the state has been
included in just the FWS’s critical habitat designations even
though the FWS questions the conservation value of these designations.
Agency regulations inconsistent with statute and conflicting court
rulings have muddled the application of critical habitat designation
to conservation.
Other available data reveal that species ranked as being at the very
highest priority level are not generally among those receiving the
largest expenditures. The assessments of priorities for individual
species, however, is in question given a highly lopsided distribution
toward higher priority rankings (over 92 percent of species have been
accorded priorities putting them in the upper half of the FWS’s
ranking system). Many species that have recovery plans that appear
to indicate poor recovery prospects have recovery priorities that indicate
a high recovery potential. Similarly, 38 percent of the species that
have a recovery potential indicating a “low” degree of
threat are classified as endangered rather than threatened.
While some species have clearly benefited from the ESA, three decades
after the Act’s passage few species have been delisted or downlisted
because of effective ESA conservation efforts. With well under half
of 1,264 listed species considered stable or improving and the vast
majority of listed species falling in the 0 to 25 percent recovery
achieved bracket, it seems unlikely that the slow pace of delisting
and downlisting will change substantially in the near future.
The data that are now available in the Report to Congress are essentially
qualitative and are subjective to the degree that in cases they constitute ‘guesstimates.’ Additionally,
what may appear to be improvements are, in many instances, actually
corrections of erroneous data. Consequently, although the ESA has been
in effect for more than three decades, the available data cannot be
used to meaningfully assess any overall conservation effects of the
endangered species program. The reports produced by the FWS and the
NMFS could be substantially improved to facilitate better assessment
of the effects of and better management of the endangered species program.
Current expenditure reporting has improved but could be further improved.
Expenditures under the ESA are much larger than as is revealed by the
endangered species budgets of the primary implementing agencies and
the greatest share of federal expenditures comes from other than the
primary implementing agencies. Although these reports document substantial
expenditures, current reporting provides an incomplete picture. Some
of the largest identifiable costs of the endangered species program
are those reported in critical habitat economic impact assessments
that fall upon other governmental agencies and private parties.
Review of the program indicates that stronger scientific standards
deigned to reduce the number of species listed on the basis of erroneous
data are needed to prevent waste of conservation funds and unnecessary
economic impacts. Means of reducing the regulatory burden of the current
delisting/downlisting process with regard to species listed on erroneous
data, or that are believed extinct, could increase the funds available
for other program activities such as recovery as could provisions that
reduce the litigation workload imposed on the implementing agencies.
This could also improve the program’s credibility. Addressing
these issues might allow many talented endangered species biologists
to dedicate more time to recovery work in the field and to improving
the ESA’s recovery record.
III. Introduction
The Endangered Species Act (ESA) was enacted in 1973.1 While
authorization of appropriations for the Act expired in 1993, the ESA
has continued
to have the force of law through annual appropriations. The endangered
species program administered by the FWS and the NMFS has been in effect
for more than three decades.2 The
term “species” under
the ESA is a legal term that also includes in its definition subspecies
and distinct vertebrate population segments. Biologists do not see
these three terms as equivalent. Full species can be identified by
a Latin binomial (two-part name) such as with the bald eagle (Haliaeetus
leucocephalus), and subspecies can be identified by their Latin
trinomial (three-part name) such as with the Preble’s meadow
jumping mouse (Zapus hudsonius preblei). A distinct population
segment may often be identified by references to a “population
of” or “DPS” such
as with the gray wolf.3
As of February 14, 2005, the FWS reported that some 1,264 domestic
species were on the endangered list.4 Of
the FWS’s 9,500 authorized
full time employees for Fiscal Year 2004, an estimated 533 positions
were attributed to the endangered species account, with estimated expenses
at 136.9 million.5 The NMFS reports
2,648 full time employees operating under a FY04 budget of $785 million,
with 523 working under the ESA
account and a FY04 budget of about $101 million.6
The FWS and the NMFS budgets for ESA work are often cited as evidence
of a small investment being made in an endangered species program by
those who hold that the law is generally sound but has been underfunded.
While not many species have been removed from the endangered species
list, some assert that it has been effective in saving species from
extinction. There are deficiencies in the available data that inhibit
some assessments of the endangered species program, but there is enough
data to review aspects of ESA implementation.
Oversight and investigations staff reviewed FWS and NMFS information
including the biannual Report to Congress on the Recovery of Threatened
and Endangered Species and annual Species by Species Expenditures Reports,7 information
regarding endangered species that have been delisted (removed from
a list of endangered and threatened species 8) and reclassified
(changed in status from endangered to threatened or vise versa), information
regarding critical habitat and from endangered species recovery plans
and other endangered species program data provided by the FWS and the
NMFS.
IV. Delisted Species
The FWS’s most recent Report to Congress on the recovery program
recognizes that “[t]he primary purpose of the Endangered Species
Act of 1973 … is the conservation of endangered and threatened
species and the ecosystems upon which they depend. The ultimate
goal of such conservation efforts is the recovery of endangered and
threatened
species, so that they no longer need the protective measures afforded
by the Act.”9 (emphasis added)
Under ESA regulations the Secretary may remove species “…if
such data substantiate that it is neither endangered nor threatened
for one or more of the following reasons: (1) extinction… (2)
recovery … a point at which protection under the Act
is no longer required… (3) original data for classification
in error.”10 (emphasis
added). While regulations equate the point at which a species no longer
requires protection under the ESA with “recovery,” the
statute does not require that the species’ numbers or distribution
be returned to some historic peak but only to the point at which the
factors used to determine endangered or threatened status are no longer
met.
Forty species have been removed from the endangered species list
since the ESA was enacted. These include both foreign and domestic
species
and species that were determined to have recovered, gone extinct and
to have been added to the list on the basis of erroneous data. (Based
on the FWS delisting notice, Hoover’s woolly star, a plant, is
counted twice below. It is counted once among “recovered” and
once among species being delisted on the basis of “erroneous
data.” (See Appendix 1.))
Seven foreign species were delisted on the basis of recovery or erroneous
data (See notes 11-13):
- Eastern gray kangaroo (Macropus giganteus) 11
- red kangaroo (Macropus rufus)
- Western gray kangaroo (Macropus fuliginosus)
- Indian flap-shelled turtle (Lissemys punctata punctata) 12
- Palau ground dove (Gallicolumba canifrons) 13
- Palau fantail flycatcher (Rhipidura lepida)
- Palau owl (Pyroglaux podargina)
Nine domestic delisted species were delisted due to extinction:
- Guam broadbill (Myiagra freycineti) 14
- longjaw cisco (Coregonus alpenae) 15
- amistad gambusia (Gambusia amistadensis) 16
- Mariana mallard (Anas oustaleti) 17
- Sampson’s pearlymussel (Epioblasma sampsoni) 18
- blue pike (Stizostedion vitreum glaucum) 19
- Tecopa pupfish (Cyprinodon nevadensis calidae) 20
- Santa Barbara song sparrow (Melospiza melodia graminea) 21
- dusky seaside sparrow (Ammodramus maritimus nigrescens)
22
Fifteen domestic species were delisted due to erroneous data (see
notes 23-37):
- Bahama swallowtail butterfly (Heraclides andraemon bonhotei) 23
- Cuneate bidens (Bidens cuneata) 24
- Lloyd’s hedgehog cactus(Echinocereus lloydii) 25
- Mckittrick pennyroyal (Hedeoma apiculatum) 26
- Mexican duck (Anas “diazi”) 27
- purple-spined hedgehog cactus (Echinocereus engelmannii var.
purpureus) 28
- Pine Barrens tree frog (Hyla andersonii) 29
- Rydberg milk-vetch (Astragalus perianus) 30
- Southeastern dismal swamp shrew (Sorex longirostris fisheri) 31
- spineless hedgehog cactus (Echinocereus triglochidiatus var.
inermis) 32
- Truckee barberry (Berberis (=Mahonia) sonnei) 33
- Tumamoc globeberry (Tumamoca macdougalii) 34
- coastal cutthroat trout (Umpqua River) (Oncorhynchus clarki
clarki) 35
- gray wolf) (Canis lupus) (grey wolves remain listed under
the ESA; this action reflected the “delisting of all other
lower 48 states or portions of lower 48 states not otherwise included
in the 3 distinct
population segments”) 36
- Hoover’s woolly star (Eriastrum hooveri) 37
The following ten domestic species were determined to have recovered.
American Alligator (Alligator mississippiensis): Technically “threatened
by similarity of appearance,” 38 the
alligator was first listed as threatened with extinction in 1967 under
a law that preceded the
ESA of 1973. 39 It was delisted
as a ‘recovered’ species
on June 4, 1987. 40
The alligator’s population dynamics were misunderstood at the
time of listing. Writing for the National Wildlife Federation, T.A.
Lewis recognized that the “familiar and gratifying” recovery
story of the alligator was “mostly wrong.” 41
American Peregrine Falcon (Falco peregrinus anatum): The
falcon was first listed on June 2, 1970 and delisted on August 25,
1999. 42 According
to the FWS, “[t]he most significant factor in the recovery of
the peregrine falcon was the restriction placed on the use of organochlorine
pesticides. The use of DDT was banned in Canada in 1970 and in the
United States in 1972…” the FWS also states, “[i]n
the eastern United States, where peregrine falcons were extirpated,
the initial recovery objective was to reestablish peregrine falcons
through the release of offspring from a variety of wild stocks being
held in captivity by falconers. The first experimental releases of
captive-produced young occurred in 1974 and then in 1975 in the United
States. Since then, approximately 6,000 falcons were released throughout
its historic range in North America. These releases helped to re-establish
breeding pairs in areas where the species was extirpated, and accelerated
the recovery of the species.”
“The peregrine restoration was the largest species recovery
program ever accomplished, extending throughout much of North America,
lasting more than three decades, and even including collaboration with
Europeans,” according to the leading experts on peregrine falcons.
43 In a recent paper, these experts state:
Why did Peregrine Restoration succeed? First and foremost, the cause
of the decline of the species (DDT) was greatly reduced in the environment.
Second, about 7,000 falcons were released to the wild where peregrine
populations were extirpated or greatly reduced…This was facilitated
by widespread cooperation and support led by a core group of dedicated
peregrine enthusiasts, mostly falconers, who possessed considerable
knowledge about the species. Peregrine restoration was largely a
privately led enterprise. Third, state wildlife departments and federal
land
management agencies contributed importantly to the recovery program…
Fourth, although restoration of the peregrine would have occurred
even if the ESA had not existed, it is unlikely to have achieved
the same level of success. The ESA provided a platform for cooperation,
particularly among government agencies, and added a new source of
funding,
although much of it was consumed by government bureaucracy and not
used for actual recovery implementation. Section 6 funding may have
been the most important financial aspect for overall recovery. An
annual appropriation earmarked by Congress for the Peregrine Fund
for a number
of years was also very important and enhanced our level of participation…Finally,
despite the FWS having the authority for implementing the ESA, and
a number of their biologists contributing importantly to the recovery
program, as an agency the FWS had a limited role, and its law enforcement
division, which was in charge of issuing permits as well as enforcing
regulations, was regularly an obstacle to recovery actions (Burnham
and Cade 2003b).
Aleutian Canada Goose (Branta canadensis leucopareia): The
Aleutian Canada goose was listed on March 11, 1967 and delisted
on March 20,
2001. 44 Regarding this Canada goose subspecies, the FWS
states,“[a]t
the time of its listing, data on which to base a population
estimate
of Aleutian Canada geese were limited. Boeker … speculated
during a 1963 expedition that only 200– 300 birds were on Buldir
Island.
We believed breeding birds to be confined to that one island,
and the
migration routes and wintering range were uncertain. A spring
count at a
principal migration stopover near Crescent City, California,
in 1975 revealed
790 individuals… We subsequently found small
breeding groups of Aleutian
Canada geese on Kiliktagik Island … and
on Chagulak …” the FWS also
states that,“[t]he
decline of the Aleutian Canada goose was primarily the
result of
the introduction of Arctic foxes … and, to a lesser extent,
red foxes … to its breeding slands” and
that “removal
of foxes from potential nesting islands” was one of the important
features of the recovery
program. According to the Service, “[i]nitial
population increases of Aleutian Canada geese were likely in
response
to hunting closures in California and Oregon to protect the geese
during migration and during
winter. However, a substantial increase
in numbers was dependent on reestablishing geese on former
nesting
islands. … Once the number of geese on Buldir Island was large
enough, we initiated translocation
of wild geese from Buldir Island
to other fox-free islands… As new breeding colonies became
established in
the Aleutian Islands, the number of Aleutian Canada
geese increased rapidly.”
Arctic Peregrine Falcon (Falco peregrinus tundrius): The
falcon was listed June 2, 1970 and delisted
on October 5, 1994. 45 According to
the FWS, “[f]ollowing restrictions on the use of organochlorine
pesticides, reproductive rates in arctic peregrine falcon populations
increased and populations began to expand by the mid- to late- 1970s.
By 1984, the recovery of arctic peregrine falcons had progressed
sufficiently that the USFWS reclassified the subspecies from endangered
to threatened…The number of arctic peregrine falcons continued
to increase. By 1991, the USFWS announced that it was reviewing the
status of the threatened arctic peregrine falcon to determine if
a proposal to delist was appropriate…”
Columbian White-tailed Deer (Odocoileus virginianus leucurus): One
of 30 subspecies of white-tailed deer in North and Central America,
this deer inhabiting counties in Oregon and Washington was first listed
as endangered in 1967. Only those occurring in Oregon’s Douglas
County (a distinct population segment) were delisted on July 24, 2003.
46 The deer remains designated as
endangered in Columbia, Clark, Cowliz, Pacific, Skamania, and Wahkiakum
Counties in Washington and in Clatsop, Columbia, and
Multnomah Counties in Oregon. 1978 amendments to the ESA introduced
the term distinct population segment (DPS), a term not originating
in biology but in law. This classification
is reserved to vertebrates and legislative history reveals it was to
be used sparingly. 48 According to the FWS, the distinct population
segment of the subspecies in Douglas County has recovered primarily
because
of “…habitat acquisition and management for the
deer, hunting
restrictions, and the application of local ordinances, designed to
protect the Douglas County DPS.”
Eastern Population of Brown Pelican (Pelecanus occidentalis): The
pelican was listed
on
June 2, 1970 and delisted on July 5, 1984. 49 According to the FWS: “[p]opulation
data gathered since the listing have questioned the likelihood that
the pelican population in Florida was
ever endangered, as defined by the Act. This designation was also questionable
for the pelican in South Carolina. The data was not in existence at
the time of listing and the most prudent course of action, based upon
the best available data at that time, was to list the entire species
as endangered.” According to the FWS, “organochlorine pesticide
pollution apparently contributed to the endangerment of the pelican.”
Gray Whale (Eschrichtius robustus): The
gray whale was listed as endangered
June
2, 1970 and delisted on June 16, 1994. 50 Although
the species population
is high in the Pacific, some trend data may indicate that its population
has
been growing since 1890, over 80 years prior to the enactment of
the ESA. 51
Hoover’s woolly-star (Eriastrum hooveri): Hoover’s
woolly-star was first listed on July 19, 1996 and delisted on October
7, 2003. 52 Although delisted in part on the basis of recovery, according to the
FWS, “[a] total of 1,128 new sites have been found on BLM land.
Along with the increase in the number of sites, the distribution and
range of [Hoover’s woolly star, a plant] has increased…The
species has greater abundance, range and distribution than previously
thought.”
Robbins'
cinquefoil (Potentilla robbinsiana): This
flower was listed on September 17, 1980 and delisted on August
27, 2002. 53 According to
the FWS, factors contributing to the recovery of Robbins' cinquefoil,
included transplanting to establish and augment populations and rerouting
of a hiking trail.
Tinian monarch (Monarcha takatsukasae): This
bird was first listed on June 2, 1970 and delisted on September 21,
2004. 54 According to
the 1987 FWS notice reclassifying this bird from endangered to threatened
status, “[b]iologists who have visited Tinian over the last
10 years have commented on the general abundance of the monarch (Owens
1974; Pratt et al. 1979), and the forest bird surveys conducted by
the Service in 1982 found the monarch to be the second most abundant
bird on the island with a population estimate of 40,000...” Although
this bird was delisted on the basis of recovery, one of the above
citations regarding the Tinian monarch’s abundance is dated
only one year after the ESA was
enacted.
V. Reclassified Species
All species reclassified by the FWS as of December 2004 were reviewed
to determine the degree to which these reclassifications reflect progress
in recovering species and what kinds of actions contributed to improving
these species’ statuses. Under the ESA, species are reclassified
by downlisting from endangered to threatened or elevated from threatened
to endangered. Downlisting indicates that the threats faced by the
species are believed to have been reduced while elevating a species
from threatened to endangered indicates the opposite. Consequently,
downlisting species because threats have actually been reduced can
indicate improvement of the status of a species’ condition.
Given the age of the ESA and the current number of listed
species, the 33 reclassifications as of December 2004 provide limited
evidence
of progress. Erroneous data was a contributing factor in at
least ten of 19, or over 50percent of the downlisted domestic species.
Among
the ten domestic downlisted species that were not primarily attributable
to erroneous data, non-regulatory management activities such as the
use of hatcheries, propagation, cultivation, transplanting, reintroductions,
and predator control were contributing factors in a majority of cases.
In eight of ten cases downlisting allowed more flexible management
permitted with listing as a threatened species rather than as an endangered
species. More rigid endangered species restrictions can hinder management.
55
Breakdown of the 33 reclassified species
• Six species were reclassified from threatened to endangered
indicating that threats faced by the species were increased:
-Schaus swallowtail butterfly (Heraclides aristodemus ponceanus) 56
-Alabama cavefish (Speoplatyrhinus poulsoni) 57
-chinook salmon (fall Snake River) (Oncorhynchus (=Salmo) tshawyscha)
-chinook salmon (spring/summer Snake River) (Oncorhynchus (=Salmo)
tshawyscha) 58
-chinook salmon (winter Sacramento River) (Oncorhynchus (=Salmo)
tshawyscha) 59
-Steller sea-lion (western population) (Eumetopias jubatus) 60
• Eight reclassified species are foreign:
-argali (Ovis ammon) 61
-Yacare caiman (Caiman yacare) 62
-chimpanzee (wild) (Pan troglodytes)
-chimpanzee (captive) (Pan troglodytes)
-pygmy chimpanzee (Pan paniscus) 63
-Nile crocodile (Crocodylus niloticus) 64
-saltwater crocodile (Crocodylus porosus) 65
-leopard (Panthera pardus) 66
• Nine domestic species were downlisted
in whole or in part because earlier data was shown to be erroneous:
-Mariana fruit bat (=Mariana Flying Fox) (Pteropus mariannus
mariannus) 67
-Missouri bladderpod (Lesquerella filiformis) 68
-Siler pincushion cactus (Pediocactus (=Echinocactus, =Utahia)
sileri) 69
-Maguire daisy (Erigeron maguirei) 70
-snail darter (Percina tanasi) 71
-MacFarlane’s four-o’clock (Mirabilis manfarlanei) 72
-Louisiana pearlshell (Margaritifera hembeli) 73
-small whorled pogonia (Isotria medeoloides) 74
-large-flowered skullcap (Scutellaria montana) 75
Data gathered after these species were included on the ESA list
revealed erroneous original data as regards the threat facing
the species
including possible underestimations of a species’ population,
numbers or distribution data. These factors justified reclassification.
|
|
|
MacFarlane’s Four-O’clock:
listed in October, 1979, surveys increased known plants from
725 to 7,212.
|
Large-flowered skullcap:
listed in June, 1986, surveys increased
known plants from 6,700 to more than 50,000.
|
Small whorled pogonia:
listed in September, 1982, surveys increased
known sites from 17 to 104.
|
|
|
Maguire daisy:
listed in September, 1985, two varieties formerly
considered distinct were combined, substantially increasing the
distribution and abundance of the taxon.
|
Missouri bladderpod:
listed in January, 1987, surveys increased
known sites from 4 to 63.
|
Downlisting Based on Reduced Threats
Ten domestic species were downlisted because their statuses improved
which improved management flexibility with regard to several of these
species.
Bald
eagle (Haliaeetus leucocephalus): The bald eagle
was determined to be endangered in the lower 48 states in 1967, and
was downlisted
on March 11, 1995. The bald eagle is found throughout the lower 48
states and in other parts of North America. Its reclassification reflects
a rather dramatic improvement of the species status. Like the peregrine,
much of the improvement is generally attributed to the ban on DDT.
The FWS has placed a high priority on eagle conservation activities
and expended substantial resources on the species. The bald eagle has
rebounded sufficiently that, despite its continued listing, many experts
do not believe it is biologically threatened. A recent paper by birds
of prey experts states, “[t]he bald eagle, for example, was originally
proposed by FWS for delisting 10 years ago, but action has been held
up by those who are concerned about the adequacy of habitat protection
after the eagle is removed from the list – a misapplied application
of the “precautionary principle.” 76
Gray wolf (Canis lupus): Gray wolves were
first listed as endangered in 1967. Two gray wolf DPS’s were
downlisted in 2003. The reclassification reflected substantial growth
in numbers, and a reduction in what was
believed to be the historic range of the eastern DPS. The reclassifications
also allowed more flexible management (taking “problem” wolves
to respond to wolf – human conflict) that has been anticipated
to increase as more wolves dispersed from well established core areas.
77
Tiger salamander (Ambystoma californiense):
California tiger salamanders were listed as endangered in 2000 and
downlisted to threatened in 2004.
Changing the salamander’s status from endangered to threatened
reflected the combining
of groups of salamanders that had previously been treated separately.
Reclassification also
improved management
flexibility. Listing tiger salamanders as threatened allowed the FWS
to promulgate
what is known as a 4d rule. The rule exempted routine
ranching practices from the ESA’s “take’ prohibition.
On the whole, ranching is viewed as beneficial to these salamanders
in its impact as this kind of land use
provides suitable habitat and
stock ponds where breeding may occur. An endangered status which prohibits
take of species backed by threat of civil and criminal prosecution
is viewed as discouraging ranching and
thereby encouraging the conversion
of ranching land into uses more deleterious to the species. 78
Four trout species: Apache trout (Oncorhynchus
apache trout), Lahontan
cutthroat trout (Oncorhynchus clarki henshawi), Paiute cutthroat
trout
(Oncorhynchus clarki seleniris) 79 ,
and greenback cutthroat trout (Oncorhynchus
clarki stomias) 80: The Apache trout was listed in 1967 and inhabits
Arizona. The Lahontan cutthroat was listed in 1970 and inhabits California,
Utah, Nevada and Oregon. The greenback cutthroat and Paiute cutthroat
were listed in 1967 and inhabit Colorado and California respectively.
The reclassification of these four trout species reflected captive
propagation in hatcheries, introductions of fish into the wild, habitat
restoration and control of brown and rainbow trout. All these trout
subspecies are game fish and threatened status also allows sport fishing.
Apache
Trout 81
|
Lahontan Cutthroat Trout 82 |
Greenback
Cutthroat Trout 83 |
Paiute
Cutthroat Trout 84 |
Utah
prairie dog (Cynomys parvidens): The Utah prairie
dog which was listed as endangered in 1973 and downlisted to threatened
in 1984,
occurs in Utah as implied by its common name. The reclassification
of this rodent reflects identification of additional populations,
the transplant of growing extant populations to other sites and allowed
promulgation of 4d rule so populations could be controlled. 85
Virgina
round leaf birch (Betula uber): The Virginia round
leaf birch, a species of tree known to occur in Virginia, was listed
as endangered
in 1978 and downlisted in 1994. The reclassification of this tree reflects
recovery actions such as cultivation and transplanting of specimens
as well as preservation of germ plasma. Additionally, information reported
in the rule downlisting the Virginia round leaf birch indicated a close
relationship to the sweet birch. 86
VI. Report to Congress
The ESA requires a report to be produced and provided to Congress
every two years on the status of efforts to develop and implement recovery
plans and on the status of all species for which plans have been developed.
The FWS also chooses to provide information regarding species for which
recovery plans have not been developed in its “Report to Congress.”
Generally, the FWS report includes a narrative assessment of the program
and overview of the data provided for the relevant species. The FWS
report includes information specific to each listed species including:
• the FWS region with lead responsibility for the species
•
the dates of the species’ first/final recovery plan and of
the most current recovery plan (when applicable) as well as the
stage of
development of the recovery plan (finals, draft, revision)
•
the species’ current listing classification (endangered or
threatened)
•
the species’ recovery priority number
•
the species’ status trend and
• a value indicating a percentage range of recovery that has been achieved.
Unless otherwise indicated, the following information is drawn from
the FWS reports that cover a larger number of species than the NMFS
report.
Recovery Priority
Recovery priorities are assigned to each species on a scale from 1
to 18. The numbers are based upon the degree of perceived threat faced
by a species, the species’ recovery potential and taxonomic distinctness.
Threats are categorized as ‘high,’ ‘medium’ or ‘low’ and
recovery potential is categorized as ‘high’ or ‘low.’ Species
(as legally defined) are considered on the basis of the taxonomic divisions
of monotypic species, species and subspecies. DPS’s are generally
considered with subspecies. Animals or plants that are more highly
distinctive or represent isolated gene pools are ranked higher (i.e.
monotypic species are prioritized over species that belong to a genus
with several species, which are prioritized above subspecies and DPS’s).
Furthermore, the addition of ‘c,’ to any priority number
indicates a listed plant or animal is in conflict with human activities.
A species in conflict is ranked above a species that has an equivalent
numerical rank but is not in conflict.
FIGURE 1:
FIGURE 2:
TABLE 1:
87,
88
92 percent of the species covered in the FWS report fall in the upper
half of the ranking system between (i.e. recovery priority 1 to 9).
In fact, over 69percent of the species covered by the report fall in
the top 6 of 18 ranks. The fact that 92percent are in the upper
half of the ranking system raises questions with regard to the individual
assignment of the threat values, the ranking system or both. Similarly,
about 38 percent of the species that are classified as facing
a ‘low’ threat
are species that are listed as ‘endangered’ rather than ‘threatened.’ Despite
this, according to the FWS, “[t]he distinction between Threatened
and Endangered species occurs in the Degree of Threat criterion. It
is generally understood that the degree of threat is greater for Endangered
species than for Threatened species.” 89
Recovery Achieved
Recovery achieved data is to provide an “estimate of the extent
to which the recovery objectives for each species has been achieved.” 90 According to the FWS this measurement is neither the “proportion
of the number of discrete actions in the recovery plan that have been
completed
(e.g., 33 actions out of 100),” nor an assessment that “one
of four objectives have been met.” According to the FWS, recovery
achieved reflects the overall progress towards the recovery goal of
downlisting (a change in status from endangered to threatened) or delisting.
Recovery achieved is indicated with a value ranging from 1 to 4 that
corresponds to the following percentile intervals:
In the FWS’s 2002 report, 25 species or 2 percent ranked recovery
achieved 4 or in the 76 - 100 percent bracket. There are species within
this group such as the bald eagle that have increased substantially
in number and distribution and for which many threats have been significantly
reduced. However, the recovery achieved measure is subjective
and higher achievement may also reflect factors other than actual reductions
in
the threat faced by a species. Higher recovery achieved rankings may
reflect factors such as a reduction in a perceived threat through the
establishment of regulations or laws that alleviate what biologists
believed were ‘inadequate regulatory mechanisms.’ Higher
rankings may also reflect corrections to inaccurate threat assessments
resulting from erroneous data that indicated that the species was less
plentiful or less widely distributed than it actually is.
Such new information may result in the assessment that a species
is closer to meeting goals, objectives or criteria than previously
believed. A number
of the 25 species in the highest recovery achieved bracket were found
to be more abundant and/or widespread after listing. This is the case,
for example, with the Uinta Basin hookless cactus, 91 running
buffalo clover, 92 Truckee barberry,
93 Eggert’s sunflower 94 and
Johnston’s
frankenia. 95 In fact, the latter
three have been or are proposed for delisting because new information
revealed earlier data was erroneous.
For example, Johnston’s frankenia, a plant occurring in Texas,
was reported to have achieved 76 percent or more of its recovery objectives
in the FWS 2002 Report to Congress. Johnston’s frankenia was
listed in 1984 and data at the time indicated there were some 1,500
individual specimens. Since listing, surveys have resulted in a population
estimate of greater than 9,000,000 individual plants. 96
Other ‘recovery achieved - 4’ species include the Tinian
monarch, Hawaiian hawk, and Virginia round leaf birch. The threat to
the Tinian monarch, as addressed previously, was overestimated. This
may also be the case with the Hawaiian hawk. FWS actually proposed
downlisting this bird in 1993 and the proposal recounts the speculative
nature of the species’ assumed decline. The notice also reveals
the hawk has adapted to altered habitat and may include invasive species
in its prey base. 97 The Virginia round leaf birch, also previously
addressed, is in this group as well. For about 25 percent or more of
the species
in the highest recovery achieved bracket, erroneous data was a contributing
factor to the ranking.
FIGURE 3:
Species Status
Species status is a qualitative assessment of the trend in the threats
faced by and numbers of a species. The possible values range from ‘possibly
extinct’ to ‘improving’ and include 98:
I = Improving: species that have numerically increased while threats
were constant or reduced; or, a species that has had constant numbers
and reduced threats.
S = Stable: numbers and threats have been constant.
D = Declining: decreasing in numbers and/or increasing threats.
U = Uncertain: current trend uncertain.
C = Captivity: species known only from captive individuals / populations.
E = Possibly Extinct.
FIGURE 4:
As few species have been delisted and downlisted, the
status of species is often referred to as a means of measuring the
performance of the ESA. According to a recent paper in Conservation
Biology, “[d]espite the small number of officially recovered
species, the ESA may have effectively prevented
as many as 192 extinctions (Schwartz 1999).” 99 (emphasis added)
Making such statements with a caveat is prudent. The same paper reports, “[t]he
quality of these data is inconsistent and of questionable accuracy,
however, because
trends for some species are simply the best guesses of
USFWS personnel (Boersma et al. 2001).” (emphasis added)
In its 2002 report, the FWS indicated the status of some 77 species
(or 6 percent) was ‘improving’ while 373 species or 30
percent were “stable.” Among these are some of the higher
profile species such as the grizzly bear, whooping crane, red-cockaded
woodpecker and California condor, all of which have benefited from
conservation efforts.
The assignment of the status “stable” or “improving” for
a species may, however, reflect factors other than actual increases
in the species’ numbers or distribution, or the reduction of
accurately assessed threats. Rather such a “stable” or “improving” status
may indicate a reduction in perceived threats resulting from the establishment
of “adequate regulatory mechanisms” or even new data that
shows earlier assessments of threats faced by a species that were based
upon an underestimated population or distribution are in error. For
example, among the species reported to be improving or stable in the
FWS’s 2002 report are the gray bat, Ozark big-eared bat, Virginia
big-eared bat, Virginia northern flying squirrel, Utah prairie dog,
Virgin Islands tree boa, Ozark cavefish, snail darter, cheat mountain
salamander, American burying beetle, flat-spired three-toothed snail,
geocarpon minimum, Hoover’s woolly-star, large-flowered skullcap,
Macfarlane’s four o’clock, Maguire daisy, Missouri bladderpod,
northeastern bulrush, Pitcher’s thistle, running buffalo clover,
small-whorled pogonia, swamp pink, watercress darter and Uinta Basin
hookless cactus. 100 After being listed the numbers or distribution
of all of these species was shown to be greater than originally believed.
As regards the swamp pink, the 1992 Report to Congress indicated
that after listing, “[a]pproximately 20 previously unknown populations
have been discovered in New Jersey,” “Five previously unknown
swamp pink occurrences have been located in Delaware” and in
North Carolina there was a “…discovery of a spruce bog
population consisting of 100,000 plants on Forest Service lands.” 101
Similarly,
the 2002 report indicates that the Uinta Basin hookless cactus, which
has been listed since 1979 as threatened is stable. In fact, this cactus
has been consistently classified as stable and the 1990 Report to Congress
indicated that original data used in listing this species was inaccurate
enough that the “[p]ossibility of delisting [the Uinta Basin hookless
cactus would] be evaluated based on new information on species abundance.” 102
The same 1990 report indicated that, “[p]opulation and habitat
inventories have identified a greater abundance, range distribution,
and additional populations of [the Wright fishhook cactus] than originally
known” and states, “[e]valuation will be undertaken to
consider delisting.” This species is also classified as stable
in the 2002 report.
Of the above improving and stable examples the change in earlier
erroneous data was significant enough to contribute to the downlisting
or delisting of the snail darter, Hoover’s woolly-star, large-flowered
skullcap, Macfarlane’s four o’clock, Maguire daisy, Missouri
bladderpod and small-whorled pogonia as has been previously addressed.
The 2002 report also classifies some 3 percent of or 35 listed
species covered by the Report as “possibly extinct.” The
recovery plan for three mussels that are assessed as possibly extinct
states, “[t]he
ultimate goal… is to locate, maintain, and enhance any known
populations…” but that “it is highly improbable,
if and when living specimens of any one of the three subject species
are found that… the species can ever recover to the point of
delisting.” 103
Of the 35 species that are possibly extinct all but one, Frostburg’s
love grass, have been listed more than a decade. Twenty-two have been
listed for more than two decades and half of these were listed under
a law that preceded the Endangered Species Act of 1973. Some of these
species have likely been extinct for decades, even prior to passage
of the ESA. Since the 2002 report, only two of the possibly extinct
species, the Guam broadbill and Mariana mallard, have been delisted.
Other species that are assessed as unknown may be extinct. For example,
FWS Threatened and Endangered Species Database System (TESS) indicates
that the Maryland darter which is assessed as uncertain in the 2002
report is possibly extinct. 104
Several considerations likely affect the FWS treatment of species
that are possibly extinct. For example, the FWS must consider the possibility
that the species could be ‘rediscovered.’ A recent and
dramatic example of this was the discovery of ivory-billed woodpeckers
that had not been reliably documented since the 1940s.
Of all the species assessed as possibly extinct, the ivory-billed
woodpecker would, in some respects, be one of the least likely to evade
detection and do so for decades. This is a large bird, similar in size
to a crow, and the largest woodpecker in the United States. It has
a somewhat striking appearance given its size, large wingspan, distinctive
white and black markings and colored crest. While, the ivory-billed
woodpecker can be mistaken for another similar woodpecker, it can be
distinguished by its physical features as well as by its flight pattern
and vocalizations. The type of habitat the species occurs in is known
and a breeding pair is
believed to require about three square miles of habitat. These facts
about the bird are well known to birders and with an implicit reference
to rediscovering the bird, the ivory-billed woodpecker has been referred
to by some as the ‘holy grail’. While the ivory-billed
woodpecker’s historic range is large and the species’ habitat
can be difficult to survey, considerable effort over many years has
been exerted by both wildlife officials and numerous avid birders to
find any living specimens. While reports had surfaced over the decades
there had been no documentation of living ivory-billed woodpeckers
accepted as reliable until recently.
The fact that the existence of this species escaped detection for
decades raises an obvious question about the reliability of data regarding
the numbers and distribution of other species that have not been extensively
searched for, are recognized by far fewer people and about which there
is less life history information. While this question is applicable
to species that have been classed as possibly extinct, it also applies
to many other species that have or may have been determined to be endangered
on the basis of erroneous data like Johnston’s frankenia, Hoover’s
woolly star.
In addition to the possibility of rediscovering a species, FWS may
consider delisting actions in the context of other ESA program demands.
Further, delisting a large number of species, approaching the total
number of delistings over the program’s history, may be perceived
as reflecting negatively on the ESA.
Listed species that are reported to be possibly extinct as of the
2002 Report to Congress include:
1. Alani (Melicope balloui). According to the recovery
plan, “[s]pecies
is rare and known from only 9 collections, the last occurring in
1927…” and
there is “…little accurate information regarding size
and distribution of population.” 105
2. Alani (Melicope quadrangularis). According to the recovery
plan only 13 individuals of species known as of 1994. 106
3. Bachman's warbler (=wood) (Vermivora bachmanii). According
to the recovery plan it is “presumed near extinction--no known
localities of regular occurrence in since early 1970's (Cuba)” [sic]
107
4. Black clubshell (Pleurobema curtum). According to the
recovery plan “fresh dead” specimens were last found
in 1989. 108
5. Bridled white-eye (Zosterops conspicillatus conspicillatus).
According to the recovery plan it was last observed June 1983. 109
6. Eastern Puma (=cougar) (Puma (=Felis) concolor couguar).
According to the recovery plan there have been no breeding cougar
populations
substantiated since the 1920’s. 110
7. Eskimo curlew (Numenius borealis).
8. Flat pigtoe (Pleurobema marshalli). According to the
recovery plan none were found alive during 1987 and 1988 surveys.
111
9. Fosberg's love grass (Eragrostis fosbergii). According
to the recovery plan it was thought extinct until 6 individuals were
rediscovered in
1991. 112
10. Green blossom pearlymussel (Epioblasma torulosa gubernaculums).
11. Guam broadbill (Myiagra freycineti). (This species
was delisted as extinct in 2004.) 113
12. Haha (Cyanea copelandii ssp. copelandii). According
to the recovery plan it was last collected 1957. 114
13. Ha`iwale (Cyrtandra crenata). According to the recovery
plan a “[p]opulation
has not been observed since 1947, and there are no other known individuals.” 115
14. Holei (Ochrosia kilaueaensis). According to the recovery
plan it was last collected in 1927 and the last sighting was in the1940s.
116
15. Ivory-billed woodpecker (Campephilus principalis). This species
has been recently rediscovered.
16. Kauai akialoa (honeycreeper) (Hemignathus procerus).
According to the recovery plan the species was last seen and collected
in late
1960s. 117
17. Kauai o`o (honeyeater) (Moho braccatus). According
to the recovery plan there have been no sightings or observed vocalizations
since 1987. 118
18. Large Kauai thrush (Myadestes myadestinus). According
to the recovery plan the last sighting was in 1989. 119
19. Liliwai (Acaena exigua). According to the recovery
plan the species has not been found since 1957. 120
20. Mariana mallard (Anas oustaleti). (This species was
delisted as extinct in 2004.) 121
21. Maui akepa (honeycreeper) (Loxops coccineus ochraceus).
According to the recovery plan there has been no “reliably
detectable population” since
1970. 122
22. Molokai thrush (Myadestes lanaiensis rutha). According
to the recovery plan the species was last seen in a “fleeting
glimpse” in
1988. 123
23. Molokai creeper (Paroreomyza flammea). According to
the recovery plan there have been no sightings since 1963. 124
24. Oahu creeper (Paroreomyza maculate). According to the
recovery plan the last “well documented sighting” was
in 1985. 125
25. O`u (honeycreeper) (Psittirostra psittacea). According
to the recovery plan the last confirmed sightings were in late 1970’s.
126
26. Phyllostegia glabra var. lanaiensis. According to the
recovery plan the species was last collected in 1914. 127
27. San Marcos gambusia (Gambusia georgei). According to
the recovery plan the last specimen was found 1982. 128
28. Scioto madtom (Noturus trautmani). According to the
recovery plan the species is possibly extinct. 129
29. Southern acornshell (Epioblasma othcaloogensis). According
to the recovery plan the species has not been found in decades. 130
30. Stirrupshell (Quadrula stapes). According to the recovery
plan a fresh dead shell was last found in 1986. 131
31. Tubercled blossom pearlymussel (Epioblasma torulosa torulosa).
32. Turgid blossom pearlymussel (Epioblasma turgidula).
33. Upland combshell (Epioblasma metastriata). According
to the recovery plan no living populations confirmed recently. 132
34. Yellow blossom pearlymussel (Epioblasma florentina florentina).
35. Little Mariana fruit bat (Pteropus tokudae). According
to the recovery plan the last sighting was in 1968. 133
Status of NMFS Species
Although the NMFS report only addresses a fraction of the species
addressed by the FWS, the reported numbers and status of species in
the narrative do not agree with the data in the report’s table.
134 Figures 5 and 6 indicate the different information provided in
the NMFS narrative and table. In the table “species protected
by NOAA Fisheries [NMFS] under the Endangered Species Act,” proposed
and candidate species and salmon of the Baker River that are of ‘unknown’ status
and for which a ‘not warranted’ for listing determination
was made are included.
The NMFS does not provide a measure addressing recovery achieved and
reports the status of several species as “mixed.” The mixed
status regards, for example, species of fish that have different trends
in different rivers. The mixed species include: the shortnose sturgeon,
chum salmon (Columbia River), coho salmon (Southern OR, Northern CA
coast), steelhead trout (Snake River) and chinook salmon (Puget Sound).
NMFS reports that recent trends in the natural abundance of steelhead
trout (Snake River) and chinook salmon (Puget Sound) are respectively, “mixed” and “variable,” and
states that “[t]he status of many shortnose sturgeon populations
remains unclear.” The shortnose sturgeon is reported to be increasing
in numbers in rivers such as the Hudson and Delaware. However, the
species has reportedly had less success in other rivers with the recent
sighting of the species in the Florida’s St. Johns River being
the first since the 1970s. The NMFS does provide more detailed descriptions
of its activities for the species covered by the report. For example
with regard to the Atlantic population of green sea turtles the report
indicates “all priority #1 tasks have been implemented.” However,
no information to put this information in context is provided. Overall,
the report provides a somewhat blurry picture of the program.
FIGURE 5:
FIGURE 6:
Relative Pace of Listing and Delistings and Program Sustainability
1982 amendments to the ESA and an accompanying conference report required
that the “…priority [listing review] system address delistings
as well.” 135 Along the same
line, the ESA provides that the Secretary may find a petitioned action
is warranted but precluded (e.g.
a species
may merit listing but more important considerations can alleviate the
obligation to do so) but a prerequisite for invoking the provision
is that, “expeditious progress is being made …. to remove
from such lists species for which the protections of the Act are no
longer necessary.” 136 These provisions recognize a need to
address the removal of recovered, extinct, and erroneously listed species
from
the list. Just a few examples of the species that may merit delisting
on basis of recovery or erroneous data include the gray wolf, bald
eagle, Wright fishhook cactus, Uinta Basin hookless cactus, island
night lizard, Hawaiian hawk and American burying beetle.
There are almost as many listed domestic species that are ‘possibly
extinct’ as the total number of domestic species that have been
delisted for all reasons (recovery, extinction or erroneous data).
There has been limited progress in removing erroneously listed, extinct
and perhaps even recovered species.
The fact that delistings have not kept pace with listings is to be
expected for several reasons. For example, there were a significant
number of species incorporated onto the endangered species list when
the ESA was first enacted. These species were inherited from a preceding
program. Additionally, the process of listing species is one that can
be completed in a much shorter timeframe than the amount of time that
is required for conservation activities to produce results. Numerous
different factors may affect the time required for conservation activities
to yield measurable results. For example, it can take many years for
a species to reach sexual maturity and contribute to the population.
Or, habitat manipulation may require years to conduct. When delisting
species that are possibly extinct the FWS must take into account the
possibility of rediscovery. Further, the listing process is in large
part driven by litigation that is overwhelmingly focused on listing
species and designating critical habitat. The FWS notes in
its most recent budget justification that its “litigation workload” with
regard to listing includes “34 active lawsuits with respect to
48 species; 40 court orders involving 88 species; and 36 notices of
intent to sue involving 104 species.” 137 (See
Appendix 2 for a listing of these cases). Also, historically, the FWS
has asserted
a need for
flexibility in prioritizing listing and delisting decisions that in
some cases may favor listing actions over delisting actions. 138
Although the pace at which listings and delistings occur is predictably
different, several facts reveal that without improvements to the program,
the number of listed species is likely to continue to swell:
• there has been a relatively small number of delistings (33
domestic delistings);
• the number of currently listed domestic species approaches
1,300;
• there have been few reclassifications from endangered to
threatened, 77 percent of listed species are ranked at the bottom
of recovery objectives
achieved scale (0-25 percent) and some 60 percent are either categorized
as of uncertain or declining status; 139
• the FWS recognizes 283 candidates for listing; 140
• there are over 6,000 species ranked as G1 (“critically
imperiled”) and G2 (“imperiled”) on natural heritage
databases some of which are likely to be petitioned and/or listed.
141
When these facts are considered in the context of the regulatory consequences
of adding species to the list, federal and state expenditures on endangered
species, economic consequences of critical habitat designations and
other regulatory consequences such as the need for consultations on
federal actions that may affect endangered species -- it becomes apparent
that, in its current form, the endangered species program is likely
not sustainable.
For example, according to the FWS, the bottom of the range of average
costs for a proposed listing rule, final listing rule, proposed critical
habitat rule, final critical habitat rule, and accompanying economic
analysis and NEPA assessment are $75,000, $50,000 $180,000, $72,000,
$150,000 and $25,000 respectively. 142 (See Appendix 3 for FWS data
on these costs.) This yields a lower bound average of $552,000 in costs
for adding a species to the list and designating its critical habitat.
Just listing and designating (the beginning of the ESA program)
the current 283 candidates at this average cost would result in a total
cost of over $150,000,000.
Obviously the above is a simplistic assessment for several reasons.
For example, these species would not all be listed simultaneously but
over time. Some of the current candidates may not be listed as is evidenced
by the some 70 animals and plants that have been removed from the candidate
list since 1997. 143 Further, critical habitat may be determined jointly
for some species. However, on the other hand, there are likely many
species that have not been identified as candidates that will be considered
for listing. Additionally, this assessment does not consider the costs
of making 90-day and 12-month findings in response to petitions (the
FWS estimates the lower bound of average costs for these actions to
be $15,000 and $45,000 respectively). And, this assessment relies on
the bottom of average cost range estimates. The 12-month finding for
the sage grouse was estimated at $625,000 and FWS upper bound average
cost estimate for proposed critical habitat is $925,000, as opposed
to the lower-bound estimate of $180,000.
Further, such an assessment does not include the costs of proposed
and final rules for delisting on the back end of the program and any
costs associated with mandatory monitoring after a species is removed
from the list. Likewise, any costs associated with possible reclassifications
or costs associated with litigation support associated with challenges
to these actions are not included. Just taking the low end of the average
cost of proposed delisting rules (FY 05 $75,000) 144 and
multiplying that by only half the currently domestically listed species
(632) yields
an estimate of over $47 million FY 05 dollars. Again, this is for just
an unchallenged proposed rule for half of the listed domestic species.
This calculation does not address costs associated with responses to
petitions, final rules or legal challenges. There are also an additional
562 foreign species to consider. 145 Unlike the calculations involving
candidates that might not be listed, eventually, all these listed species
should be delisted as either recovered, extinct or, when new information
becomes available, on the basis that the original listing data was
erroneous.
While the process of delisting species does require an expenditure
of some funds for proposed and final rules, retaining species on the
list that do not merit listing is not without cost, as is later addressed.
Delisting species that do not merit listing should assist in focusing
resources more effectively and improve the program’s credibility.
Potentially Unrecoverable Species
The purpose of the ESA is “to provide a means whereby the ecosystems
upon which endangered species and threatened species depend may be
conserved, to provide a program for the conservation of such endangered
species and threatened species….” 146 The
ESA defines “conserve” to
mean “…to use and the use of all methods and procedures
which are necessary to bring any endangered species or threatened species
to the point at which measures provided pursuant to this Act are no
longer necessary.” 147 As
the FWS has recognized, the ultimate goal of the ESA “… is
the recovery of endangered and threatened species…” 148 However,
according to the FWS, “[s]ome
critically endangered species may not respond due to limiting factors
such as small population size that has limited or suppressed reproduction.
Herculean efforts may be needed before an increase in population may
be seen. It may even be that preventing extinction is the
best that can be done with the current scientific information, although
the future
may bring advances enabling the population to improve.” 149 (emphasis
added) While the ESA does not appear to contemplate cases in which
species may be listed in perpetuity, several recovery plans reveal
this possibility.
The goal of the recovery plan for three subspecies of beach mice found
along the gulf coast of Florida and Alabama, the Choctawhatchee beach
mouse (Peromyscus polionotus ammobates), the Perdido Key beach
mouse (Peromyscus polionotus trissyllepsis) and Alabama beach
mouse (Peromyscus
polionotus allophrys) is downlisting. The plan states, “…due
to the extensive and permanent loss of habitat for these beach mice,
it will probably never be possible to safely remove them entirely from
protection of the Act.” 150 Similarly,
the recovery plan for the cracking pearly mussel (Hemistena lata)
states that, “[b]ecause
of the lack of available habitat for establishment of all needed populations,
recovery is unlikely.” 151 Likewise,
the plan for the ring pink mussel (Obovaria retusa) states “[t]otal
recovery is not thought possible.” 152
These are not the only examples of a low recovery potential. As previously
addressed, FWS reports that the recovery potential for 40 percent of
listed species is low. A number of recovery plans indicate a low recovery
potential having something short of delisting such as downlisting as
the plan or interim plan’s goal or otherwise state that the potential
for recovering the species to the point at which it may be delisted
is questionable. These include, for example:
• The goal of the recovery plans for Louisiana pearlshell
mussel (Margaritifera hembeli), 153 Mariana
common moorhen (Gallinula
chloropsus
guami) 154 and Mariana
fruit bat (Pteropus mariannus mariannus) 155 is downlisting.
• According to the recovery plan for the cave crayfish (Cambarus
zophonastes), “[d]ue to the apparent limited potential
for discovering new populations, the delisting objective may never
be
attainable.” 156
• The flattened musk turtle’s (Sternotherus depressus)
recovery plan states, “[a]ll that can reasonably be stated
now relative to the time required for recovery is that, under the
best
of circumstances, it will take more than three decades.” 157
• The American crocodile (Crocodylus acutus) recovery
plan states, “[d]ue
to the nature and the extent of the threats to the crocodile, complete
delisting may never be possible” and that reclassification
to threatened is the “long term objective.” 158
• The recovery plan for the Florida scrub jay (Aphelocoma
coerulescens coerulescens) states, “[b]ecause
of the extreme usefulness of the Act in this case, it is not desirable
to remove the scrub jay from
protection under the Endangered Species Act.” 159 (emphasis added)
• “Protection of existing populations” is the
goal of the Hualapai Mexican vole (Microtus mexicanus hualpaiensis)
recovery
plan. 160
• The Loach minnow (Tiaroga cobitis) recovery plan
calls for, “[p]rotection
of existing population. Eventual delisting, if possible.” 161
• The goal of the Mount Graham red squirrel (Tamiasciurus
hudsonicus grahamensis) recovery plan is to “[s]tabilize” the
species. 162
• According to the recovery plan for the San Bruno elfin (Callophrys
mossii bayensis) and Mission blue butterfly (Icaricia icarioides
missioensis), “[t]he
primary object of the Recovery Plan… is to maintain and enhance
existing populations…” 163
• The spikedace (Meda fulgida) recovery plan calls
for, “[p]rotection
of the existing population. Eventual delisting, if possible.” 164
• The recovery plan for the St. Thomas prickly-ash (Zanthoxylum
thomasianum) calls for, “[g]uidance for reversing decline… and
restoring… stable, secure, and self sustaining status, thereby
permitting… reclassified… and perhaps eventually allowing
its removal.” 165
• The recovery plan for the Tar River spinymussel (Elliptia
steinstansana) states, “[t]hough the ultimate goal is
to recover the species to the point where it can be removed from
the Federal
List of Threatened and Endangered Wildlife and Plants, full recovery
of
the Tar River spinymussel may not be possible.” 166
• The recovery plan for the white cat’s paw pearly mussel
(Epioblasma sulcata delicata = obliquata perobliqua) states, “… protect
only extant population… With such a low population level and
restricted distribution, recovery to the point where the species
no longer requires protection under the Act is unlikely.” 167
Of the above, only the crocodile is considered improving and having
met 50 percent or more of the recovery objectives. Consequently, the
FWS has recently announced that it will propose downlisting the crocodile
from endangered to threatened in the United States, which is at the
limit of the species’ range. Prospects for the Mariana fruit
bat improved when it was determined that the bat had a larger range
than originally believed and it was subsequently reclassified as threatened.
Four of the above species are considered stable and to have met only
0 to 25 percent of the recovery objectives. The rest are declining
or uncertain and fall somewhere in the 0 to 50 percent recovery achieved
range.
In cases, the recovery challenges faced by a species may be an uphill
battle against nature itself. For example, several recovery plans
indicate that some listed species are possibly relictual
species (‘relics’) from earlier geological eras. For
example:
• The plan for the Desert Slender Salamander (Batrachoseps
aridus)
states, “[a]pparently it is a relictual species that had a
wider distribution during wetter geological epochs.” 168
• The Iowa Pleistocene Snail (Discus macclintocki)
recovery plan states, “[t]he plan … is intended to provide
decision makers with a possible set of procedures which if implemented
will
result in changing the status of the Iowa Pleistocene snail minimally
from endangered to threatened, and feasibly to delisted.” “Thus
the major long-term cause of decline is cyclic climatic change. The
species has survived several such cycles in the past, however. With
a return to glacial conditions it will be resuscitated over the major
part of the upper Midwest, provided its relictual areas are preserved
and maintained.” 169
• The
recovery plan goal for the Virgin Islands tree boa (Epicrates
monensis granti) is “[d]ownlisting” and the plan
states, “[t]he
species’ absence from Puerto Rico is best explained by widespread
extinctions of xeric-adapted herptefauna on Puerto Rico during the
Pleistocene.” 170
•
According to the Wyoming toad’s (Bufo hemiophrys
baxteri) recovery plan the goal is “[d]ownlisting” and
it states, “[t]he
Wyoming toad is a glacial relic known only from Albany County, Wyoming.” 171
•
The Santa Cruz long-toed salamander (Ambystoma macrodactylum
croceum)
recovery plan goal is “[d]ownlisting” and the plan
states, “[t]he
SCLTS is a relict form of a species that was probably widespread
throughout much of California during and immediately after the
last Pleistocene
ice advance, 10,000 to 20,000 years ago…” 172
Despite information in aforementioned recovery plans that would
seem to indicate a low recovery potential, 18 of 26 or almost
70 percent
of these species have recovery priorities for species with a
high recovery potential. This would seem to indicate that the data
in
the recovery plans was erroneous or the assessed recovery priorities
are not accurate.
VII. Species Expenditures
Another report required under the ESA is Section 18’s Species
by Species Expenditure Report that is to be produced annually by FWS.
These reports list the expenditures reasonably attributable to a specific
species by federal agencies and by ‘the states’ collectively.
The expenditure data include a separate accounting of expenditures
on land acquisition related to specific species.
Tables 2, 3 and 4 provide expenditure data from the FWS FY 04 expenditure
report. Table 2 shows the ten listings that the FWS ranked as receiving
the most funds. Most of the top ten listings are fish and most of these
are from the Pacific Northwest and regulated by NMFS.
In its expenditure report the FWS provides an alternative accounting
of the ten “species” receiving the most funds. In this
table the FWS combines listed subspecies, DPS’s or evolutionary
significant units that belong to the same species. This accounting
reflects groupings of the same biological species that NMFS may manage
separately, for example, as different evolutionarily significant units
based on different spawning runs. However, it is on the basis of such
differences that these species have been segregated into individually
regulated subunits. The division of these fish into units endemic to
a river or separated from one another based by the timing of the spawning
runs can result in relatively heightened assessments of threats and
have an effect on consultation and other ESA activities. This alternative
top ten (as combined by the FWS) is provided in Table 3. Again most
are fish with most from the Pacific Northwest and regulated by NMFS.
Table 4 presents the FWS FY 2002 expenditure data for all of the species
with the highest recovery priority ranking, ‘1C’ in the
FY 01-02 Report to Congress. There are 12 such species. With the exception
of the green sea turtle, the reported expenditures for these species
are well below the reported expenditures for the top ten earners as
reported in both Table 2 and 3. Some rank relatively low with the swamp
pink, a plant, and the Comal Springs dryopid beetle ranking 603 and
726 respectively among the species covered by the report. Only 0-25
percent of the recovery objectives have been met for all 12 of the
species ranked 1C. Of the twelve 1C species, six are of declining status,
two are of uncertain status while three are stable and one is improving.
The GAO recently found that the FWS directs its funds to species
with higher priorities but GAO notes that it made no assessment of
the priority
system. 173 As already addressed, the assignment of priorities is
heavily skewed toward the high priority end of the scale. Consequently,
even
if expenditures were randomly distributed, a majority should fall
in the upper third of the priority rankings. The GAO also found that,
based on a weighted average of expenditures on federally endangered
and threatened animals and plants, subspecies got more than twice
the
funding of species despite the fact that subspecies are ranked below
species as regards genetic distinctiveness. Monotypic species did
receive the most funding on the weighted average basis.
Again, using the Report to Congress for FY 01-02 and the FWS FY 02
expenditure report, at the very top of the priority scale are some
121 recovery priority ‘1C,’ ‘1,’ and ‘2C’ species.
Using the term ‘species’ in its biological and not legal
context, this pool includes all the highest priority monotypic species
and the highest priority full species that are in conflict. This group
represents roughly 10 percent of the 1,254 species covered in the most
recent FWS Report to Congress and the upper-half of possible priorities
among the highest threat and recovery potential FWS species. About
84 percent fall in the 0-25 percent recovery achieved class. About
50 percent are declining and 19 percent are of uncertain status. About
one third of these species have been listed more than two decades,
a number being listed before the ESA of 1973. 40 percent of these highest
priority species fall below the median expenditure for those species
with reported expenditures in FY 02. Several of these species had no
reported expenditures. (It should be noted that the expenditure rankings
include the NMFS species for which recovery priorities are not reported.
Additionally, aggregate expenditures were provided in the Species by
Species Expenditure report for the green, hawksbill and leatherback
sea turtles rather than expenditures attributable to the individual
listings).
FIGURE 7:
TABLE 5:
FIGURE 8:
FWS and NMFS Reported Expenditures
The FWS makes clear that inferring trends from data provided in the
expenditure reports is difficult at best. As agencies have become accustom
to the expenditure data collection process, reporting has likely improved.
Further, the methodology in preparing the reports has changed over
time. For example, in earlier years expenditures on land purchases
were not segregated.
FIGURE 9:
FIGURE 10:
Section 6 Expenditures
There has been increasing discussion on the role of states under the
ESA. Section 6 makes provision for cooperation with the states and
a means of providing funding. Figure 11 portrays recent Section 6 expenditures
and reveals a majority of Section 6 funds in recent years have been
directed to land acquisition. (See Appendix 4 for FWS data on Section
6).
FIGURE 11:
Expenditures by the Bonneville Power
Administration and other Federal Agencies
The Bonneville Power Administration (BPA) reports particularly large
expenses that are attributable to lost power generation revenue and
additional purchases of power. The revenue is recorded as lost when
water is spilled for the purpose of conserving listed species rather
than to generate electricity. Additionally, the BPA reported large
additional costs as it needed to purchase power when it was not generating
enough to meet its obligations. These costs were particularly large
during the West Coast energy crisis of FY 01 when BPA reported
species expenditures approaching $1,700,000,000. 174
Chinook salmon
FIGURE 12:
FIGURE 13:
FIGURE 14:
FIGURE 15:
Expenditures by Taxon
In the most recent expenditure reports, fish, as a taxon, received
the greatest percentage of funds. The increase in expenditures on fish
is in large part attributable to expenditures related to salmon and
steelhead in the Pacific Northwest. Substantial expenditures on fish
have been made by the BPA, NMFS, Bureau of Reclamation, the Corps of
Engineers and the FWS.
TABLE 6:
FIGURE 16:
Following 1979 Amendments to the
ESA, the FWS adopted a system to prioritize consideration of species
which are considered to be “higher life forms.” This system
ranked species in a descending order: mammals, birds, fish, reptiles,
amphibians, vascular plants and invertebrates. However, according to
the FWS, it altered its policies so as to give no priority to higher
or lower life forms in response to a conference report accompanying
1982 ESA amendments that “stated opposition” to a system
that gave priority to “higher or lower life forms.” 176
Within that statute itself various provisions appear to head in different
directions on the issue of according preference to different taxons.
The inclusion of a species on the endangered species list as a distinct
population segment is limited to vertebrates, and while prohibitions
regarding take of animals do not, take prohibitions apply differently
to plants dependant upon property ownership. However, the ESA directs
that the Secretary develop and implement recovery plans “without
regard to taxonomic classification”. 177
Expenditure reports do generally indicate larger expenditures going
to relatively ‘higher taxa.’ There are likely many factors
that contribute to this. A significant portion of this is driven by
conflict with fish. Some is clearly directed at what are often called ‘flagship
species’ or ‘charismatic megafauna’ - essentially
popular species. Some expenditures are earmarked for certain species
by Congress. Recent expenditure reports do reveal expenditures directed
to species that were likely not driven on the basis of popularity as
examples in Table 7 show. 178
TABLE 7:
Tooth Cave spider
Expenditures on Species Listed Based on Erroneous Data
Delistings, downlisting and information in previous Reports to Congress
and recovery plans reveal that data used in listing a number of species
has subsequently been determined to be erroneous. Populations of and
the distribution of listed species have been underestimated. Threats
to species have been overestimated and taxonomic classifications of
some species have been subsequently revised. In part, this may be attributed
to the current application of the ESA’s standard of “best
scientific and commercial data available.” Currently, there is
little or minimal requirement as to the qualitative or quantitative
nature of information needed to make a determination under the ESA.
The Data Quality Act appears to prescribe more rigorous standards for
data used in a rule-making.
An inherent problem in making determinations as to the threat faced
by species is that relevant data are often quite limited. A species
may cover a large area, have a life history that makes the collection
of information difficult (such as living in a cave or on the river
bottom) or be difficult to distinguish from other species except to
those with a particular expertise. Increasing use of genetic analysis
can reveal that two species, once believed distinct from one another
based on morphology or geographic differences, are genetically similar.
Conversely, a species that was an amalgamation of similar animals or
plants ‘lumped’ together may warrant further taxonomic
divisions. While uncertainty and change are to be expected in biological
science, they can have consequences under the regulatory framework
of the ESA.
The FWS has recognized that listed species which do not actually merit
listing, can divert scarce conservation dollars from truly endangered
species. With regard to its species priority management system, the
FWS states, “the first consideration of the system accounts for
the management burden entailed by the species’ being listed,
which, if the current listing is no longer accurate, could divert resources
from species more deserving of conservation efforts.” 179 Table
8 reveals expenditures on species that were delisted or are proposed
for delisting based upon erroneous data and a few examples of other
listed species that may merit delisting on similar grounds. The costs
indicated in this table reflect reported expenditures by federal and
state agencies. However, these figures do not reflect all the expenditures
that can result from erroneous listings.
For
example, the figures for the Preble’s meadow jumping mouse
likely miss significant costs borne by state government and do not
account for costs imposed upon lesser governmental entities and private
parties. The critical habitat designation for this mouse reveals the
types of costs that can occur. Over 31,000 acres of critical habitat
was designated for the Preble’s meadow jumping mouse. 180 FWS
economic impact assessment for the critical habitat designation anticipated
costs of $74 -$172 million. An addendum to this analysis increased
the estimate to $79 – $183 million over ten years. 181
Another indicator of costs related to the Preble’s mouse are
the effort going into habitat conservation plans. So that activities
that would be considered to possibly otherwise violate the ESA can
continue, a number of parties invested resources to prepare habitat
conservation plans. Having an approved plan would allow the parties
to receive protection from a charge of violating the ESA. To date some
16 Preble’s meadow jumping mouse habitat conservation plans covering
some 9,680 acres have been established ranging from just over a half
acre to 6,143 acres. 182
The Executive Director of Colorado’s Department of Natural
Resources has identified about $10 million in state funding directed
at Preble’s
meadow jumping mouse research and conservation and over 25 million
in grants directed to land preservation projects that have a total
budget over $250 million. All of the projects were described as benefiting
Preble’s meadow jumping mouse habitat or potential habitat. 183
There can be other conservation costs associated with species that
are listed on the basis of erroneous data (costs that are also applicable
to species that are not data errors). With regard to the effects of
the Preble’s listing, researchers reporting in the journal Conservation
Biology found that “[l]isting the Preble’s under the ESA
does not appear to have enhanced its survival prospects on private
lands. In terms of hectares owned, for example, the efforts of landowners
who reported they had sought to help Preble’s (25 percent) were
canceled out by the efforts of those who sought to harm it (26 percent).
Moreover, the majority of respondents had not or would not allow a
biological survey (56 percent), thus preventing collection of data
for conserving the species.” 184
TABLE 8: Expenditures on Species Listed with Erroneous
Data
Another erroneously listed species, Eggert’s
sunflower, provides an additional example of such costs. In 2004 the
FWS proposed delisting Eggert’s sunflower after new information
increased the population estimate from 34 known sites to 279 known
sites. New life history information also showed that the species could
thrive in disturbed areas and, consequently, actions such as timber
harvesting and clearing could provide manmade habitat. In its delisting
proposal, the FWS notes that it “evaluated potential impacts
to this species from 248 federal actions…” and “conducted
two formal consultations…” 185 The FWS also notes that
it was sued by the Southern Appalachian Biodiversity Project for making
the
determination that designating critical habitat for Eggert’s
sunflower was not prudent. The expenditure of funds on species like
Eggert’s sunflower reduces funds available to address the already
large workload generated under the ESA. Figures 17 and 18 (depicting
the total formal and informal consultations for fiscal years 2001 – 2004)
provide some sense of the workload to which these additional burdens
are added. (See Appendix 5 for information on FWS ESA actions)
FIGURE 17:
FIGURE 18:
The sheer volume of material processed under the ESA
Section 7 is an indicator of the amount of time federal biologists
and resource professionals allocate to endangered species activities
other than recovery. This is likely true of biologists and resource
managers outside of FWS and NMFS in other Federal and state agencies
as well as in the private sector.
For example, US Forest Service and Bureau of Land Management
officials report that there is, “…a complex bureaucratic
maze of process and procedures, which field biologists and managers
must attempt to negotiate on a daily basis in order to implement on-the-ground
projects.” 186 Making the comments on well “intention[ed]” regulation,
policies and directives, the agencies provide examples of what appear
to be waste of agency resources and the non-navigable nature of the
current endangered species program including:
• a roughly two year consultation so that the Lower Elwha Tribe
could obtain “a cedar tree for a canoe for ceremonial purposes;”
• preparation of a 45 page biological assessment so that possibly
several leaky toilets could be replaced at campgrounds and;
• the inability to obtain “a letter of concurrence” finding
a wedding at a camping site was not likely to affect endangered species.
The area requested for the wedding was the “same area as the
(unpermitted) 2001 Rainbow Gathering (20,000 people), which included
many unauthorized activities (camping, latrines, kitchens) within
the riparian area...”
Limits of Expenditure Report Data
Beginning with FY 01 the FWS has provided more comprehensive view
of endangered species expenditures has been presented. Many expenditures
such as some of those reported by Bonneville Power Administration were
reflected in the totals. For the first time ESA expenditures that could
not be attributed to a specific species were included in the 2001 report
as “other ESA” expenditures. Although the ESA only requires
reporting those expenditures “reasonably attributable” to
a specific species, this commendable FWS initiative provides a more
complete picture of endangered species expenditures.
While the 2001 and 2002 reports provide a more complete view of endangered
species expenditures, they fall far short of capturing all expenditures
on endangered species. The current reporting still does not present
a complete picture of federal or state ESA expenditures.
For example, the Corps of Engineers recently testified that, “[b]ased
on recent expenditure reports, the Corps has spent from $32 to over
$108 million per year since 1996 on over 250 federally listed threatened
species and endangered species. … Reported expenditures are suspected
to be a substantial underestimate of the true cost of ESA compliance.
A recent investigation for sea turtles, for example, revealed that
reported costs were only about half the actual costs incurred by Districts.
We are now developing an improved cost accounting system.” 187
Perhaps similarly, while the US Forest Service reported some $18 million
in FY 03 for species specific expenditures, it reported no “other
ESA” expenditures. Given this agency’s mission, it seems
unlikely that there were not significant expenditures that would fall
in the “other ESA” category. Endangered species conservation
plays a powerful role in federal land management and may have a large
effect on revenues derived from federal lands. For example, species
conservation efforts may have led to lost royalties and reduced timber
harvest revenues while increasing management costs. There is no indication
that the USFS reported expenditures reflect lost revenues and the same
may be said of the Bureau of Land Management expenditure data. Another
example is that the Department of Justice (DOJ) reports no expenditures
with regard to the ESA litigation expenditures. Similarly there were
no reported costs associated with payments from the Judgment Fund for
cases in which the plaintiffs’ received attorney’s fees
resulting from ESA litigation.
State expenditures may also be significantly under reported. Currently,
states report expenditures to an association which then reports them
to the FWS. In the FWS report the expenditures by the states on each
species have been aggregated. From the FWS report it cannot be determined
how much any particular state reported or exactly what agencies within
any given state have reported expenditures. Many state departments
of transportation, for example, likely have sizable endangered species
expenditures that would be missed if a state simply reported expenditures
by its department of natural resources or its fish and game agency.
More importantly, the expenditure reports, consistent with
the current provisions of the ESA, do not address expenditures by
governmental
units below the level of states, and the reports do not reflect private
expenditures or costs. These costs are likely a significant
percent of the total expenditures the public makes on endangered
species and
range from funds expended by private preservation organizations for
the conservation of habitat to costs absorbed by a county or business
to achieve compliance.
Costs
borne by the city of Colton, California related to the Delhi sands
flower-loving fly are an example of economic impacts on governmental
units below the state level. Colton reports over a dozen different
conflicts with the fly including some $4 million for redesigning activities
at the San Bernardino County Hospital, an over $80 million decrease
in assessed valuation affecting tax roll revenues, an increase of $1.5
million in street maintenance costs, increased costs for a storm drainage
project, delay of road realignment and loss of grants for an interchange
project. 188
Additional indications of the kinds of costs born by private and other
governmental entities on endangered species is revealed in the more
recent economic analyses conducted in association with promulgation
of critical habitat and in the funding of habitat conservation plans.
For example, the FWS has estimated the cost of designating 95,655 acres
of critical habitat for the Arroyo toad (Bufo californicus) at $1 billion
over 10 years. 189 According to the FWS, “[t]he $1 billion estimate
includes impacts of arroyo toad conservation activities on lands proposed
for designation. The real estate industry is expected to incur about
$937 million in costs. Some of the estimated costs already are occurring
due to the listing of the arroyo toad and protective measures in place
as a result of the listing. These costs include lands set aside for
toad conservation to compensate for loss of toad habitat, and measures
needed to protect the toad while construction is ongoing. Other projected
costs are associated with military activities, changes in water supply,
grazing and mining activities, and construction projects.” According
to the FWS, “[a]bout 54 percent of the proposed critical habitat
is privately-owned; 39 percent is federally-owned; 6 percent is under
state ownership, and 2 percent is owned by tribal governments.”
In another case, the city of Phoenix estimates that replacing the
water it loses from the designation of critical habitat for the southwest
willow flycatcher, a bird, is a minimum of $147 million. 190
The FWS estimated the costs identified in one multi-species recovery
plan to be “about $1.3 billion over the next 20 years, or about
$115 million annually.” 191 The plan covers some 15 species
that are associated with “vernal pools” in California and
Oregon and the most prominent species associated with this plan are
fresh
water crustaceans commonly called ‘fairy shrimp.’
Private parties in just the unincorporated areas of San Diego County
have paid some $485 million to be covered by a habitat conservation
plan that covers multiple species. 192 Figure 19 reveals the number
of HCP’s completed between 2001 and 2004.
FIGURE 19:
VIII. Critical Habitat
Under Section 4 of the ESA critical habitat is designated. In practice,
the act of designating or not designating critical habitat has been
a subject of litigation and controversy. To date critical habitat has
been designated for some 478 species. Some designations are for multiple
species and in other instances, designated critical habitat for one
species may overlap designated critical habitat for another.
When critical habitat is designated an economic impact analysis is
to be produced. In practice, like critical habitat designation, production
of economic impact analyses has been problematic. Staff found it difficult
to obtain economic analysis documents that should be readily available
to the public online.
Some economic analyses have resulted in determinations
such as "less
than $100 million." 193 Such
assessments may have been based upon the notion that any economic impact
related to the species, resulted
primarily from the inclusion of the species on the endangered and threatened
species list, and thus any additional economic impact resulting from
the subsequent designation of critical habitat was not significant.
This approach was rejected by the courts. Because of court rulings
and other reasons, the methodology used by the FWS in conducting these
analyses has changed over time, frustrating a cumulative assessment
of economic impact as identified in these analyses. The changes in
the approaches to critical habitat economic impact assessments are
complicated as is the history of and factors bearing upon agency use
of critical habitat designations.
ESA prohibitions in Section 7 and Section 9 have a powerful effect
on actions that may or do have an impact on endangered and threatened
species and their habitat. Under Section 7, federal actions are prohibited
from jeopardizing (possibly causing the extinction of) a species. Section
7 of the ESA also prohibits Federal actions from resulting in “adverse
modification” of habitat that has been designated as being “critical” for
an endangered or a threatened species. The “take” of listed
species which encompasses the elements of “harm, harass, shoot,
wound, kill, trap, capture or collect” or attempting to engage
in these activities is enforced through the Section 9 of the ESA. By
statute, the taking of endangered species is prohibited and the take
of threatened species may be prohibited by the promulgation of regulation.
Combinations of regulations and court rulings have fundamentally altered
the structure of the ESA in which the mechanism of critical habitat
was designed to function.
First, the FWS promulgated a regulation that essentially inverted
the mechanism whereby take of threatened species may be prohibited
to one in which take of threatened species may be permitted. The ESA
itself does not prohibit any activity that may take a threatened species
unless a regulation prohibiting the action has been promulgated. 194 Rather than promulgating regulations that prohibited specific actions
from
taking selected threatened species, the FWS promulgated a regulation
that applied the take prohibition in general to all threatened species
and has subsequently, on occasion, promulgated regulations that exempt
specific actions with regard to specific species. In essence, for regulatory
purposes, the distinction between endangered and threatened species
was eliminated. All takes of threatened species have been prohibited
rather than only those specified by specific regulation.
Second, the term take including the elements “harm” and “harass” has
been interpreted broadly. Unlike the other elements of take (kill,
hunt, wound, shoot, capture, trap or collect) that indicate a close
and direct relationship between the person committing a take and the
species that is being taken with the method of take linking the two,
harm has been interpreted to include actions in which the injury done
to the species can be part of a chain of events, such as might occur
by habitat modification, that may even be somewhat subjective. For
example, some type of construction could cause a species to abandon
a foraging or nesting area for poorer quality foraging habitat resulting
in the reduced vigor and eventual death of the species. In response
to legal challenges the Supreme Court determined that there are limits
to how expansively habitat modification may be interpreted as “take” but
a rather broad description of harm in regulation has been upheld. 195
However, unlike ‘shoot’ or ‘trap’, proximate
taking of endangered species by harming them may involve a relatively
subjective assessment by agency biologists. Consequently, threatened
species are essentially the same as endangered species unless specific
regulations are otherwise promulgated and actions that modify habitat,
may be prohibited if the agency determines that the actions will proximately
result in a ‘take’ of a species. This is true whether the
habitat has been designated as critical or not. The agencies’ consultation
manual asserts that in some cases it may not be possible to find the
body of a species that has been taken and that a dead species is not
necessary to measure a ‘take.’ 196
In combination, the above factors have created a situation whereby
the additional regulatory authority accrued with designation of critical
habitat may not be as significant as it might otherwise have been.
A conflict between individuals wishing to develop property in Texas
and endangered cave invertebrates illustrates this use of the ESA’s
take provision with regard to activities that affect habitat. 197
In 1983 Dr. Fred Purcell and his brother Judge Gary Purcell purchased
and subsequently invested millions in developing a 216 acre property.
FWS subsequently listed several cave dwelling invertebrate species
as endangered including the Bee Creek Cave harvestman, the Bone Cave
harvestman, the Tooth Cave pseudoscorpion, the Tooth Cave spider, the
Tooth Cave ground beetle, and the Kretschmarr Cave mold beetle. These
species occur in several caves and sinkholes on the property of the
Purcell’s and other nearby properties.
So that development might proceed, the Purcells deeded several caves
and over 10 acres of buffer zones surrounding the caves to a non-profit
foundation dedicated to the research of environmental issues. Ultimately,
the Purcells’ dedication of the preserves was unsatisfactory
to the FWS and development was thwarted for over a decade. At one point,
the FWS threatened Dr. Purcell with criminal prosecution for violation
of the ESA’s ‘take’ prohibition. The action alleged
to constitute a criminal take included clearing brush. The Purcells
sought an incidental take permit, meeting with FWS officials numerous
times with development proposals. In a 1998 meeting a FWS official
produced a map indicating that development was prohibited on all but
a few, isolated tracts of land. Of the 216 acres in Tracts A-E, the
map indicated that development was prohibited on Tracts A, B, C, F
and G and on 40 acres of the 74 acre C tract and 37.3 acres of the
47 acre D Tract leaving the E tract which according to the plaintiffs
consists of steep canyons and which is inaccessible by road. Conflict
with the FWS led to the Purcells initiating several legal challenges
through their partnership, GDF Realty, Ltd, and eventually, to GDF
Realty, Ltd. filing for bankruptcy.
No critical habitat has been designated for any of these cave dwelling
invertebrates and brush clearing is not done inside caves. The FWS
was interpreting the take prohibition to allow them to exert regulatory
authority over the Purcells’ property because the habitat modification
might take these listed species.
The Purcells’ case reveals how the application of take can reduce
the incremental increase in regulatory authority stemming from the
designation of critical habitat. In addition to having historically
provided limited increases in regulatory authority in many instances,
the process of designating critical habitat can be politically charged,
resource intensive and requires that agencies complete an economic
impact assessment to document the resulting regulatory burden. These
aspects of critical habitat designation are not likely viewed as benefiting
the implementing agencies.
Given this reality, the disparaging FWS statements with regard to
the value of ESA critical habitat mechanism are not surprising. The
FWS has opined:
In 30 years of implementing the ESA, the Service has found that
the designation of statutory critical habitat provides little additional
protection to most listed species, while consuming significant amounts
of conservation resources. The Service’s present system for
designating critical habitat is driven by litigation rather than
biology, limits
our ability to fully evaluate the science involved, consumes enormous
agency resources, and imposes huge social and economic costs. The
consequence of the critical habitat litigation activity is that limited
listing
funds are used to defend active lawsuits and to comply with the growing
number of adverse court orders. As a result, the Service’s
own proposals to undertake conservation actions based on biological
priorities
are significantly delayed. 198
A recent court ruling (Gifford Pinchot Task Force v. USFWS) 199 has,
however, presented a much lower threshold for a determination with
regard to
the destruction or adverse modification of critical habitat and altered
this dynamic. The Court’s reasoning was that Section 7of the
ESA requires federal agencies to avoid the destruction or adverse modification
of critical habitat. Then the court looked to regulations. Existing
regulations define “destruction or adverse modification” to
be ‘”…an alteration that appreciably diminishes the
value of critical habitat for survival and recovery…” Agency
regulations also define jeopardy as an action that “… reduces
the likelihood of both the survival and recovery of the species.” Relying
on these definitions, the court found that determinations regarding
adverse modification of critical habitat had to consider not only the
species’ survival but also the effects on recovery of the species.
In the court's view, the ESA sets the threshold for initiating section
7 consultation at the point in which a federal action would reduce
the likelihood of recovery which is lower than the jeopardy standard
which would be triggered only if the federal action would rise to the
level of possibly leading to extinction of the species.
Regardless of the FWS opinion before or after the Pinchot decision,
critical habitat must be designated under the ESA and economic analyses
are to accompany such designations. To date, critical habitat has been
designated for some 478 species. The costs involved in just printing
proposed and final rules for critical habitat can be quite substantial.
According to the FWS, FY 05 costs for printing in the Federal Register
were $465 per page of text and $495 for each full page map. 200 The
California tiger salamander critical habitat designation is some 80
pages including
some 30 full page maps. 201 Using
FY05 costs for printing puts just the printing cost of this critical
habitat rule at just over $38,000. 202
Economic impact assessments conducted with critical habitat designations
vary significantly as some examples for California reveal but indicate
that costs imposed on other governmental agencies and private parties
are large. The economic impact of the designations may be reduced by
excluding areas if the Secretary finds that the benefits of the exclusion
outweigh benefits of inclusion and provided that the Secretary does
not find that the “failure to designate such area as critical
habitat will result in the extinction of the species…” For
example, the final critical habitat designation for the Riverside fairy
shrimp was dramatically reduced as an economic impact assessment had
found that “the cost of conserving the shrimp over the next 20
years could exceed $500 million.” 203
• California Coastal Gnatcatcher, $915 million over 20 years;
204
• California tiger salamander, lower bound scenario of $105
million and an upper bound scenario of $411 million; 205
• Inyo California towhee, "less than $100 million";
206
• San Bernadino Merriam's kangaroo rat, between $4.4 million
and $28.2 million; 207
• Quino checkerspot butterfly, between $3.5 million and $14.1
million; 208
• Bay checkerspot butterfly, $6.5 million; 209
• San Bernadino Mountains bladderpod, between $38,000 and
$116,000; 210
• Western snowy plover, "none expected;" 211
• Zayante Band-winged grasshopper, "minimal." 212
Roughly 10,940,398 acres, over 10 percent of California, has been
designated as critical habitat just for FWS species. According to the
FWS this includes 60 percent federal, 30 percent private, 8 percent
state and 2 percent tribal and other lands. 213 NMFS critical habitat
designations increase the total acreage designated in California substantially.
(See Appendix 6 for maps depicting FWS critical habitat designations
in California).
Tables 9, 10, and 11 show FWS species with designated critical habitat
in California, and the species for which and the amount of habitat
that has been designated as critical in Florida and Texas respectively.
TABLE 9: California
FWS Species with Critical Habitat
TABLE 10: Florida
FWS Species with Critical Habitat
TABLE 11: Texas FWS Species with Critical Habitat
IX. Findings
• A small number of species have been delisted or downlisted
as a result of successful ESA recovery efforts;
• Available data indicate that the vast majority of listed species
(77 percent) are in the lowest quarentile (0-25 percent) of ‘recovery
achieved’;
• Of species included in the most recent FWS report 39 percent
are “uncertain”, 30 percent are “declining’,
21 percent are “stable” 6 percent are “improving”,
3 percent are “possibly extinct” and 1 percent are believed
only to exist in captivity;
• About 30 or more currently listed species are assessed as “possibly
extinct”;
• Given the relative rate of listing and delistings, the potential
pool for future listings, the costs associated with the process
along with the workload placed upon the implementing agencies and
the economic
impacts, the current program does not appear sustainable;
• Despite being enforced for more than three decades, there
is a consistent lack of reliable qualitative information about
the condition of endangered and threatened species regulated under
the
ESA;
• A higher “recovery achieved” ranking for a species
does not necessarily indicate actual improvement in the condition
of the species;
• Because much of the available data for the program is subjective
and can reflect factors other than what they would seem to reflect,
there is insufficient information upon which to draw general conclusions,
other than on an anecdotal basis, regarding the ESA’s effectiveness
in conserving or ‘saving’ listed species;
• Data may indicate that species are “improving” or “stable” when
there has been no actual change in the condition of the species (i.e.
there may have been no actual increase in the species’ numbers,
populations or distribution) and the assessment of these statuses
can reflect corrections to earlier erroneous data;
• Species listed on the basis of erroneous data consume funds
that could otherwise be directed to species that are actually endangered
or threatened;.
• The assessment of recovery priorities for listed species
appears heavily skewed and is likely inaccurate in many cases;
• Although not clearly contemplated in the ESA, it may not
be possible to recover some listed species to the point at which
protections
under the ESA are no longer necessary;
• Although improved in recent years, current expenditure reporting
misses federal government expenditures on listed species;
• The completeness of state listed species expenditure reporting
cannot be assessed from current reports and may underestimate state
expenditures;
• Current reporting does not capture expenditures of governmental
units below the state level or by private parties;
• By weighted average, biological species do not receive greater
funding over subspecies or lesser taxonomic units;
• The distinction between endangered and threatened species
has been blurred;
• A combination of factors has altered the framework under
which critical habitat was designed to function.
X. Recommendations
• A meaningful distinction between threatened and endangered
species should be established.
• More rigorous criteria for the determination of endangered
and threatened species should be established. Consistent with the
Data Quality Act the implementing agencies should require more rigorous
criteria in listing decisions.
• As threat to species should be contemplated in the determination
between “threatened” and “endangered” status,
altering the priority system to first consider taxonomic uniqueness
could, in general, increase the program’s focus on relatively
more unique animals and plants.
• A number of species were likely listed on the basis of erroneous
data and should, as well as some that are ‘possibly extinct’,
be delisted. A more simplified mechanism for delisting species may
improve program efficiencies. The appropriateness of current designations
should be thoroughly assessed including endangered status and recovery
priority.
• Mechanisms that reduce the resource consuming nature of
Section 4 determinations should be considered to make the program
more effective
and allow an increased focus on recovery.
• The data for the Report to Congress and the Species by Species
Expenditure Reports should be made available in an online searchable
electronic format. This would increase the authorizing and appropriating
committees’ abilities to review the program and increase public
accessibility to information about the program. The data should be
searchable by the individual species (perhaps in association with the
FWS TESS database (Threatened and Endangered Species Database System)).
The data should also be searchable by different fields (i.e. searches
by agency or state making expenditures, species status, species’ range
states etc.).
• Specific requirements as to the type and amount of data to
be included in the Report to Congress could increase the usefulness
of the reports for assessing and managing the program. The report could
include population and distribution data including trend data, an assessment
of the data’s reliability and a description of the objective
and measurable criteria established pursuant to the Act’s Sec.4(f)(1)(B)(ii).
• Economic impact assessments conducted in association with
critical habitat designations should be easier to locate online.
Electronic copies of these documents should be consistently available
on the FWS
TESS database.
• Requiring states that receive Section 6 of the ESA funding
to report state expenditures (including those expenditures from
other than natural resources departments or fish and wildlife agencies
specifically
charged with endangered species management) may provide a more
complete picture of state ESA expenditures.
• Provision for lesser governmental entities to voluntarily
report ESA expenditures may provide a more complete picture of
governmental ESA expenditures. This might be accomplished electronically,
allowing
the appropriate official to certify the accuracy of the information.
Similarly, a provision for private entities to voluntarily electronically
report and to attest to the accuracy of the reported expenditures
may provide a more complete picture of total ESA expenditures.
XI. Appendices
APPENDIX 1: Delisted Species Report as of 5/4/05
APPENDIX 2: Active Lawsuits 2/16/05
SUMMARY:
APPENDIX 3: The
current FWS listing process – Approximate
range of average costs of rulemaking
APPENDIX 4: Cooperative Endangered Species Conservation
Funds
APPENDIX 5: Table of FWS ESA Actions
APPENDIX 6: Maps of California Critical Habitat
Endnotes
1. Public Law 93-205, Approved Dec.28, 1973, 87 Stat. 884.
2. The Secretary of Interior and the Secretary of Commerce are vested
with authorities and obligations under the ESA. The secretaries have
delegated administration of the ESA to the USFWS and NMFS respectively.
3. The term “endangered” is used herein to encompass both “endangered” and “threatened” species
unless otherwise noted. An “endangered” species is one
that is in danger of extinction throughout all or a significant portion
of its range. Sec.3 (6). A “threatened” species is one
that is likely to become endangered in the foreseeable future. Sec.
3 (20) The term “species” is used herein to encompass species,
subspecies and distinct population segments as in the ESA’s definitions
at Sec 3 (16). It is also used to encompass “Evolutionarily Significant
Units,” a NMFS term. See: 56 FR 58612-58618; November 20, 1991.
4. Under the Endangered Species Act both domestic and foreign species
may be listed. Species are added to a list published by the Secretary
of Interior in accordance with Sec (4)(c). Foreign species are included
on the list as the ESA is used by the United States as the implementing
instrument for Convention on International Trade in Endangered Species
of Wild Flora and Fauna. Additionally, a species may be included on
the endangered list more than once. In explaining the number of US
species FWS provides the following information: “There are 1857
total listings (1292 U.S.). A listing is an E or a T in the "status" column
of 50 CFR 17.11 or 17.12 (The Lists of Endangered and Threatened Wildlife
and Plants). The following types of listings are combined as single
counts in the table above: species listed both as threatened and endangered
(dual status), and subunits of a single species listed as distinct
population segments. Only the endangered population is tallied for
dual status populations (except for the following: olive ridley sea
turtle; for which only the threatened U.S. population is tallied. The
dual status U.S. species that are tallied as endangered are: chinook
salmon, gray wolf, green sea turtle, piping Plover, roseate tern, sockeye
salmon, steelhead, Steller sea-lion. The dual status foreign species
that are tallied as endangered are: argali, chimpanzee, leopard, saltwater
crocodile. Distinct population segments tallied as one include: chinook
salmon , chum salmon , coho salmon , dugong , gray wolf , Mariana fruit
Bat (=Mariana flying fox) , steelhead. Entries that represent entire
genera or families include: African viviparous toad, gibbons, lemurs,
musk deer, Oahu tree snails, sifakas, uakari (all species). http://ecos.fws.gov/tess_public/TESSBoxscore
5. USWFS, Budget Justifications and Performance Evaluation for Fiscal
Year 2005. The estimated expenditures for 2004 do not include general
business operation expenditures. While FWS’s endangered species
account is a figure that is often cited with regard to Federal investment
in the endangered species program, monies from many other FWS accounts
may also be directed to or benefit endangered species. For example,
of 13 FY 2005 projects summarized under FWS’s Land Acquisition
account ($38.1 million estimated in 2004) for National Wildlife Refuges
or Wildlife Management Areas, 11 include endangered or threatened species
in the project description or purpose. Some of the other FWS accounts
for which the ESA is cited as an authorizing statute include the State
and Tribal Wildlife Grant Fund ($69 million enacted in 2004), the Private
Stewardship Grant Program ($7.4 million estimated in 2004) and the
Landowner Incentive Program ($26.6 million enacted in 2004).
6. “ESA, PR, and NMFS Funding”, undated, NMFS. NMFS spends
additional monies on endangered species through accounts such as its
Pacific Salmon Recovery Fund, which spent some $78 million in FY 2003
on species outside of Alaska. “Pacific Salmon Recovery Funding”,
undated, NMFS.
7. Sec. 4 (f)(3) requires the Secretary of Interior to “report
every two years…on the status of efforts to develop and implement
recovery plans for all species listed pursuant to this section and
on the status of all listed species for which such plans have been
developed.” The ESA’s Sec. 18 requires the Secretary of
Interior to provide an annual accounting of reasonably identifiable
federal and state expenditures that are made primarily for the conservation
of endangered and threatened species.
8. Under Sec. 4 (c)(1) the Secretary of Interior is required to publish
in the Federal Register and revise “from time to time” a
list of all species determined to be endangered or threatened. See:
Endangered and Threatened Wildlife and Plants 50 CFR 17.11 and 17.12,
December 1999. Information regarding listed species is now available
on the Service’s website< http://endangered.fws.gov/wildlife.html#Species>.
9. http://endangered.fws.gov/recovery/reports_to_congress/2001-2002/2001-2002_full_report.pdf
10. 50 CFR 424.11(d).
11. Three of the seven delisted foreign species were Australian kangaroos
that FWS delisted on the basis of recovery. At delisting FWS stated, “…the
four [Australian] states that commercially harvest kangaroos…had
developed and implemented adequate and effective conservation programs
that ensured the protection of these species. The Service additionally
found that kangaroo populations were high and that the three species
were protected by appropriate legislation, had their populations regularly
monitored by direct and indirect procedures, and were managed by a
complex licensing system which regulated the extent of the legal harvest.” 60
FR 12887-12906.
12. According to FWS, following listing a “…literature
review was conducted to see if supporting evidence justified its current
endangered status. No such supporting data could be found.” FWS
also interviewed turtle experts, one of whom advised the Service, “[h]ow
[the Indian flapshell turtle] ever made Appendix I [of the CITIES list]
is a big mystery.” 49 FR 7394-7398.
13. Three of the foreign delisted species are birds native to Palau
(the Palau dove, flycatcher and owl). 50 FR 37192-37194. According
to the Government Accounting Office, “[a]lthough officially designated
as recovered, the three Palau species owe their ‘recovery’ more
to the discovery of additional birds than to successful recovery efforts.” GAO,
Endangered species management programs could enhance recovery program.
Washington, DC: GAO/RCED -89-5.21 December 1988.
14. 69 FR 8116-8119.
15. 48 FR 39941-39943.
16. 52 FR 46083-46087.
17. 69 FR 8116-8119.
18. 49 FR 1057-1058.
19. 48 FR 39941-39943.
20. 47 FR 2317-2319.
21. 48 FR 46336-46337.
22. Sparrows that were in part of dusky seaside sparrow lineage were
held in captivity at one time. The notice delisting the dusky indicates
that as these captive species were “hybrids” the FWS determined
they were ineligible for regulation under the ESA. 55 FR 51112-51114.
23. FWS stated, “a recent review… indicates that the Bahama
swallowtail is only a sporadic resident of the United States. It is
not sub-specifically distinct from the non-threatened Bahaman population
of this species and does not presently qualify for listing…”49
FR 34501 34504.
24. 61 FR 4372-4373, 2/6/1996. Cuneate bidens was determined not to
be a unique species.
25. 64 FR 33796-33800, 6/24/1999. Lloyd’s hedgehog cactus was
determined not to be a unique species.
26. 58 FR 49244-49247, 9/22/1993. Subsequent data showed the Mckittrick
pennyroyal to be more abundant.
27. 43 FR 32258-32261, 7/25/1978. The Mexican duck was determined not
to be a unique species.
28. 54 FR 48749-48751, 11/27/1989. The Purple-spined hedgehog cactus
was determined not to be a unique species.
29. 48 FR 52740-52743, 11/22/1983. Subsequent data showed the Pine
Barrens tree frog to be more abundant.
30. 54 FR 37941-37943, 9/14/1989. Subsequent data showed the Rydberg
milk-vetch to be more abundant.
31. 65 FR 10420-10426, 2/28/2000. Subsequent data showed the Southeastern
dismal swamp shrew to be more abundant.
32. 58 FR 49242-49244, 9/22/1993. Subsequent data showed the spineless
hedgehog cactus to be more abundant.
33. 68 FR 56564-56567, 10/1/2003. The Truckee barberry was determined
not to be a unique species.
34. 58 FR 33562-33565, 6/18/1993. Subsequent data showed the Tumamoc
globeberry to be more abundant.
35. 65 FR 24420-24422, 4/26/2000. The coastal cutthroat trout was determined
not to be a unique species.
36. 68 FR 15803-15875, 4/1/2003. Grey wolves remain listed under the
ESA; the delisting reflected revisions to the DPSs then listed.
37. 68 FR 57829-57837, 10/7/2003. Hoover’s woolly star was delisted
on the basis of new information that showed listing data to be erroneous
and recovery.
38. “Threatened by similarity of appearance” is an ESA
listing status whereby a species (which includes parts, products, offspring,
eggs or the dead body or parts thereof (Sec.3 (8)) is not endangered
but resembles an endangered species and is treated as if it were until
proven otherwise. e.g., a skin claimed to be from an alligator may
be treated by law enforcement officials as if it was an illegal product
derived from an endangered crocodile until proven otherwise. This provision
is included to aid law enforcement.
39. The ESA of 1973 succeeded earlier laws aimed at conserving endangered
species and consequently some species were listed prior to the 1973
Act. In February 1967, pursuant to the Endangered Species Preservation
Act of October 15, 1966 Secretary of Interior Udall found 77 animals
threatened with extinction including the alligator. Of these, 68 are
listed as endangered or threatened today, two (the alligator and Aleutian
Canada goose) were delisted under the ESA on the basis of recovery,
one (the Mexican duck) was delisted under the ESA on the basis of erroneous
data), and three (the blue pike, longjaw cisco, and dusky seaside sparrow)
were delisted under the ESA on the basis of extinction. The black toad,
the Tule white-fronted goose and Montana westslope cutthroat trout
were not listed under the ESA of 1973. http://endangered.fws.gov/1966listing.html.
40. 52 FR 21059-21064, 6/4/1987, (http://ecos.fws.gov/docs/frdocs/1987/87-12806.pdf).
41. Lewis, T.A. Searching for truth in alligator country. Natl. Wildl.
September-November; 1987.
42. USFWS. Endangered and threatened wildlife and plants. Final Rule
to Remove the American Peregrine Falcon From the Federal List of Endangered
and Threatened Wildlife, and To Remove the Similarity of Appearance
Provision for Free-Flying Peregrines in the Conterminous United States.
64 FR 46541-46558; 1999.
43. Burnham, William, Cade, Tom J., Lieberman, Alan J., Jenny, Peter
and Heinrich, William. The Endangered Species Act and Hands-on Species
Restoration, August 18, 2004.
44. USFWS. Endangered and threatened wildlife and plants. Final Rule
to Remove the American Peregrine Falcon From the Federal List of Endangered
and Threatened Wildlife, and To Remove the Similarity of Appearance
Provision for Free-Flying Peregrines in the Conterminous United States.
64 FR 46541-46558; 1999.
45. USFWS. Endangered and threatened wildlife and plants. Removal of
Arctic Peregrine Falcon from the List of Endangered and Threatened
Wildlife. 59 FR 50796-50805; 1994.
46. 68 FR 43647-43659, 7/24/2003.
47. http://ecos.fws.gov/species_profile/servlet/gov.doi.species_profile.servlets.SpeciesProfile?spcode=A002
48. Liebesman, Lawrence and Rofe Dentson, Endangered Species Deskbook,
the Environmental Law Reporter, Washington, D.C. 20003, p13-14.
49. USFWS. Endangered and threatened wildlife and plants. Removal of
the brown pelican in the southeastern United States from the list of
Threatened and Endangered Wildlife. Endangered and threatened wildlife
and plants. Fed. Reg. 50: 4938-4945; 1985.
50. 59 FR 31094-31095, 6/16/1994.
51. McDonald, D., ed. Encyclopedia of mammals. New York, NY: Facts
On File; 1984: 216-221.
52. USFWS. Endangered and threatened wildlife and plants. Removal of
the Hoover’s woolly- star from the list of Threatened and Endangered
Wildlife. Endangered and threatened wildlife and plants. 68 Fed. Reg.
57829-57837; 2003.
53. USFWS, Endangered and Threatened Wildlife and Plants; Removal of
Potentilla robbinsiana (Robbins' cinquefoil) From the Federal List
of Endangered and Threatened Plants, 67 FR 54968-54975; 2002.
54. USFWS. Endangered and threatened wildlife and plants. Reclassification
of the Tinian monarch from endangered to threatened status. Fed. Reg.
52: 10890-10829;1987.
55. Under the ESA “take” of endangered species is prohibited
and is defined to mean to “harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture or collect or attempt to in engage in any
such conduct” Sec. 3(19). Take of threatened species is not prohibited
by statute but may be by regulation.
56. 49 FR 34501-34504, 8/31/1984.
57. 53 FR 37968-37970, 9/28/1988.
58. 59 FR 54840-54841, 11/2/1994.
59. 59 FR 13836, 3/23/1994.
60. 62 FR 24345-24355, 5/5/1997.
61. 57 FR 28014-28024, 6/23/1992.
62. 65 FR 25867-25881, 5/4/2000.
63. 55 FR 9129-9136, 3/12/1990.
64. 58 FR 49870-49874, 9/23/1993.
65. 61 FR 32356-32367, 6/24/1996.
66. 47 FR 4204-4211, 1/28/1982.
67. 70 FR 1190-1209, 1/6/2004.
68. 68 FR 59337-59345, 10/15/2003.
69. 58 FR 68476-68480, 12/27/1993.
70. 61 FR 31054-31058, 6/19/1996.
71. 49 FR 27510-27514, 7/5/1984.
72. 61 FR 10693-10697, 3/15/1996.
73. 58 FR 49935-49937, 9/24/1993.
74. 59 FR 50852-50857, 10/6/1994.
75. 67 FR 1662-1668, 1/14/2002.
76. The Endangered Species Act and Hands-on Species Restoration; William
Burnham, Tom J. Cade, Alan Lieberman, J. Peter Jenny and William Heinrich,
August 18, 2004.
77. 68 FR 15803-15875, 4/1/2003,
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2003_register&docid=fr01ap03-12.pdf
78. 69 FR 47212-47248, 8/4/2004,
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2004_register&docid=fr04au04-15.pdf
79. 40 FR 29863-29864, 7/16/1975.
80. 43 FR 16343-16345, 4/18/1978.
81. http://www.landbigfish.com/fish/fish.cfm?ID=196
82. http://www.tucalifornia.org/lahontancutthroat.htm
83. http://waterknowledge.colostate.edu/cutthroa.htm
84. http://www.tucalifornia.org/paiutecutthroat.htm
85. 49 FR 22330-22334, 5/29/1984, http://ecos.fws.gov/docs/frdocs/1984/84-14213.pdf
86. 59 FR 59173-59177, 11/16/1994, http://ecos.fws.gov/docs/frdocs/1994/94-28326.html
87. The low recovery potential species include 35 that are ‘possibly
extinct.’
88. FWS’s 2002 report includes 1,254 species. However, no data
is provided for the Caribbean Population of the roseate tern.
89. 48 FR 43098 – 43105, 9/21/83.
90. USFWS. Report to Congress: Endangered and threatened Species Program.
Washington, DC: USFWS; 2002.
91. USFWS. Report to Congress: Endangered and threatened Species Program.
Washington, DC: USFWS; 1990.
92. USFWS, Report to Congress: Endangered and Threatened Species Program,
Washington, DC 1990.
93. 68 FR 56564-56567, 10/1/2003.
94. 69 FR 17627-17634. This notice also responded to efforts by the
Southern Appalachian Biodiversity Project to compel designation of
critical habitat for Eggert’s sunflower that resulted in a Court
Order requiring USFWS to reconsider its earlier determination that
designation for Eggert’s Sunflower was “not prudent.” In
this notice USFWS again determines that that it is “not prudent” to
designate critical habitat but does so this time on the grounds that
the species does not warrant listing under the ESA. Presumably, by
prevailing before court the organization may have been entitled to
litigation costs.
95. 68 FR 27961 27961, 5/22/2003.
96. 68 FR 27961 27961.
97. USFWS. June 4, 1993, 58 FR 3240.
98. The report issued by the NOAA Fisheries uses the term “increasing” as
opposed to “improving”; the term “unknown” as
opposed to “uncertain”; and the term “mixed” in
those cases where listed species have multiple components and the components
have different statuses. Biennial Report to Congress On the Recovery
Program for Threatened and Endangered Species; October 1, 2000 – September
30, 2002. Office of Protected Resources, National Marine Fisheries
Service.
99. As quoted in, “ Improving U.S. Endangered Species Act Recovery
Plans: Key Findings and recommendations of the SCB Recovery Plan Project,” J.
Alan Clark, Jonathan M. Hoekstra, P. Dee Boersma and Peter Kareiva,
Conservation Biology, Vol. 16, No. 6, December 2002.
100. USFWS. Report to Congress: Endangered and threatened Species Program.
Washington, DC: USFWS; 1992.
101. USFWS. Report to Congress: Endangered and threatened Species Program.
Washington, DC: USFWS; 1992.
102. USFWS. Report to Congress: Endangered and threatened Species Program.
Washington, DC: USFWS; 1990.
103. Recovery Plan for the tubercled blossom pearlymussel, turgid blossom
pearlymussel and yellow blossom pearlymussel. USFWS, Atlanta, GA.,1985.
104. http://ecos.fws.gov/tess_public/servlet/gov.doi.tess_public.servlets.EntryPage.
105. USFWS. 1997. Recovery Plan for the Maui Plant Cluster. USFWS,
Portland, OR. pp 67, 68.
106. USFWS. 1995. Recovery Plan for the Kauai Plant Cluster. USFWS,
Portland, OR. p 81.
107. http://ecos.fws.gov/species_profile/SpeciesProfile?spcode=B03G
108. USFWS. 1989. Five Tombigbee River Mussels Recovery Plan. USFWS,
Atlanta, GA. p 4.
109. USFWS. 1990. Native Forest Birds of Guam and Rota of the Commonwealth
of the Northern Marianas Islands Recovery Plan. USFWS, Portland, OR.
p 23.
110. USFWS. 1982. Eastern Cougar Recovery Plan. USFWS, Atlanta, GA.
p 8.
111. USFWS. 1989. Five Tombigbee River Mussels Recovery Plan. USFWS,
Atlanta, GA. p 4.
112. USFWS. 1998. Recovery Plan for Oahu Plants. USFWS, Portland, OR.
p 94.
113. 69 FR 8116 8119, 2/23/2004.
114. USFWS. 1996. Big Island Plant Cluster Recovery Plan. USFWS, Portland,
OR. p 35.
115. USFWS. 1998. Recovery Plan for Oahu Plants. USFWS, Portland, OR.
p 76.
116. USFWS. 1996. Big Island Plant Cluster Recovery Plan. USFWS, Portland,
OR. pp 81, 82.
117. USFWS. 2003. Draft Revised Recovery Plan for Hawaiian Forest Birds.
USFWS, Portland, OR. p 74.
118. USFWS. 2003. Draft Revised Recovery Plan for Hawaiian Forest Birds.
USFWS, Portland, OR. p 47.
119. USFWS. 2003. Draft Revised Recovery Plan for Hawaiian Forest Birds.
USFWS, Portland, OR. p 29.
120. USFWS. 1997. Recovery Plan for the Maui Plant Cluster. USFWS,
Portland, OR. p 9.
121. 69 FR 8116 8119, 2/23/2004.
122. USFWS. 2003. Draft Revised Recovery Plan for Hawaiian Forest Birds.
USFWS, Portland, OR p. 106.
123. USFWS. 2003. Draft Revised Recovery Plan for Hawaiian Forest Birds.
USFWS, Portland, OR p. 35.
124. USFWS. 2003. Draft Revised Recovery Plan for Hawaiian Forest Birds.
USFWS, Portland, OR p. 96.
125. USFWS. 2003. Draft Revised Recovery Plan for Hawaiian Forest Birds.
USFWS, Portland, OR p. 95.
126. USFWS. 2003. Draft Revised Recovery Plan for Hawaiian Forest Birds.
USFWS, Portland, OR p. 50.
127. USFWS. 1994. Lana’i Plant Cluster Recovery Plan. USFWS,
Portland, OR. p 31.
128. USFWS. 1995. San Marcos/Comal (Revised) Recovery Plan. USFWS,
Albuquerque, NM. p 28.
129. http://ecos.fws.gov/species_profile/servlet/gov.doi.species_profile.servlets.SpeciesProfile?spcode
=E01T
130. USFWS. 2000. Mobile River Basin Aquatic Ecosystem Recovery Plan.
USFWS, Atlanta, GA. p. 57.
131. USFWS. 2000. Mobile River Basin Aquatic Ecosystem Recovery Plan.
USFWS, Atlanta, GA. p. 85.
132. USFWS. 2000. Mobile River Basin Aquatic Ecosystem Recovery Plan.
USFWS, Atlanta, GA. p. 61.
133. USFWS. 1990. Guam Mariana Fruit Bat and Little Mariana Fruit Bat
Recovery Plan. USFWS, Portland, OR. p 5.
134. NMFS, Biennial Report to congress On the Recovery Program For
Threatened and Endangered Species, October 1, 200 – September
30, 2002.
135. 48 FR 43098, September 21, 1983 & 48 FR 51985, November 15,
1983 (Correction)
136. Sec 4(b)(3)(B)(iii) (II).
137. USFWS, Budget Justification and Performance Information for Fiscal
Year 2005.
138. 48 FR 43098-43105.
139. USFWS. Report to Congress: Endangered and threatened Species Program.
Washington, DC: USFWS; 2002.
140. http://ecos.fws.gov/tess_public/TESSWebpageNonlisted?listings=0&type=C
141. http://www.natureserve.org/explorer/servlet/NatureServe?loadTemplate=tabular_report.wmt&paging=
home&save=all&sourceTemplate=reviewMiddle.wmt
142. “The Current FWS Listing Program – Approximate Range
Of Average Costs Of Rulemakings,” USFWS, NCTC ES Listing Course,
Revised February 14, 2005.
143. http://ecos.fws.gov/tess_public/servlet/gov.doi.tess_public.servlets.RemovedOrWithdrawn.
144. “The Current FWS Listing Program – Approximate
Range Of Average Costs Of Rulemakings,” USFWS, NCTC ES Listing
Course, Revised February 14, 2005.
145. http://ecos.fws.gov/tess_public/TESSWebpageForeign?listings=0.
This number excludes threatened dual status & experimental populations.
146. Sec 2 (b) Purposes. The purposes also include taking “such
steps as may be appropriate to achieve the purposes of the treaties
and conventions set forth in subsection (a) of this section.”
147. Sec. 3 (3).
148. http://endangered.fws.gov/recovery/reports_to_congress/97-2000/97-2000_full_Report.pdf
149. http://endangered.fws.gov/recovery/reports_to_congress/97-2000/97-2000_full_Report.pdf
150. US FWS, 1987, “Recovery Plan for the Alabama Beach Mouse,
Perdido Key Beach Mouse, and Choctawhatee Beach Mouse.” US FWS,
Atlanta, GA. 45 pp.
151. US FWS, 1991, “Recovery Plan for Cracking Pearlymussel.” US
FWS, Atlanta, GA.
152. US FWS, 1991, “Ring Pink Mussel Recovery Plan .” US
FWS, Atlanta, GA.
153. US FWS, 1990, “Louisiana Pearlshell Recovery Plan.” US
FWS, Jackson, MS.
154. US FWS, 1992, ”Recovery Plan Mariana Common Moorhen.” US
FWS, Portland, OR.
155. US FWS, 1990, “Mariana Fruit Bat (Guam Population) and Little
Mariana Fruitbat Recovery Plan.” US FWS, Portland, OR.
156. USFWS. A recovery plan for the cave crayfish. Atlanta, GA: USFWS;
1998.
157. US FWS, 1990, “Flattened Musk Turtle Recovery Plan.” US
FWS, Jackson, MS.
158. USFWS 1984. American Crocodile Recovery Plan. USFWS; Atlanta,
GA.
159. US FWS, 1990, “Recovery Plan for the Florida Scrub Jay.” US
FWS, Atlanta, GA.
160. US FWS, 1991, “Hualapai Mexican Vole Recovery Plan.” US
FWS, Albuquerque, NM.
161. US FWS, 1991, “Loach Minnow Recovery Plan.” US FWS,
Albuquerque, NM.
162. US FWS, 1993, “Mount Graham Red Squirrel Recovery Plan.” US
FWS, Phoenix, AZ.
163. USFWS. Recovery Plan for the San Bruno elfin and Mission blue
butterfly. 1984.
164. US FWS, 1991, “Spikedace Recovery Plan.” US FWS, Albuquerque,
NM.
165. USFWS. Recovery Plan for the St. Thomas Prickly-Ash. 1988.
166. US FWS, 1992, “Tar Spinymussel Recovery Plan.” US
FWS, Atlanta, GA.
167. US FWS, 1990, “Recovery Plan for the White Cat’s Paw
Pearly Mussel.” US FWS, Twin Cities, MN. 42 pp.
168. USFWS. Desert slender salamander recovery plan. Portland, OR:
USFWS; 1982.
169. USFWS. National recovery plan for Iowa Pleistocene snail. Iowa
City, IA: USFWS; 1984.
170. USFWS. Recovery Plan for the Virgin Islands Tree Boa. 1986.
171. US FWS, 1991, “Wyoming Toad Recovery Plan.” US FWS,
Denver, CO.
172. USFWS. 1999. Santa Cruz long-toed Salamander draft revised recovery
plan. USFWS, Portland, Oregon.
173. GAO, Endangered Species, Fish and Wildlife Service Generally Focuses
Recovery Funding on High Priority Species, but Needs to Periodically
Assess its Funding Decisions, GAO-0 -211, April 2005, p. 3.
174. Not all of the BPA's reported ESA expenditures (lost power generation
revenue and power purchases or other ESA expenditures) are passed on
to its ratepayers. BPA reduces the cost passed on by taking credits
under Section 4(h)(10)(c) of the Regional Act. These credits reflect
the portion (22.3%) of power purchases and other expenditures related
to endangered species that should be attributed to the other authorized
purposes of the hydroelectric projects. Other authorized purposes are
navigation, recreation, irrigation and flood control. The portion of
the dams' costs allocated to the power purpose is 77.7% overall for
the system and ranges from 1.4% to 100% for individual dams. For example,
BPA took credits in 2001 that reduced reported ESA expenditures from
almost $1.7 billion to $1.1 billion. The latter costs were passed on
to customers. BPA roughly estimates that over 20% of the rate paid
by preferred customers is related to ESA expenditures.
175. 48 FR 43098-43105.
176. 48 FR 43098-43105.
177. Sec.4 (f)1(A).
178. A national survey by Professor Don Coursey at the University of
Illinois at Chicago (The Revealed Demand for a Public Good: Evidence
from Endangered and Threatened Species, January 1994), demonstrated
significant difference in the value respondents placed on different
animal species. At the top of the list “of mean importance” was
the bald eagle followed by the whooping crane, green sea turtle, leatherback
sea turtle, southern sea otter, grizzly bear, artic peregrine falcon,
Hawaiian hawk, key deer and Eastern cougar. At the bottom of the 246
species included in the survey were the Amargosa vole, Marianas fruit
bat, Stephans’ kangaroo rat, Tooth Cave pseudoscorpion, painted
snake coil forest snail, Bee Creek cave harvestman, Tipton kangaroo
rat, Tooth Cave spider and lastly, the Krestchmar Cave mold beetle.
179. 48 FR 43098, September 21, 1983 & 48 FR 51985, November 15,
1983 (Correction).
180. 68 FR 37275- 37332, 6/23/2003.
181. U.S. Fish & Wildlife Service (2003) Final environmental assessment
designation of critical habitat for Preble’s meadow jumping mouse.
Appendix 10.5 Addendum to economic analysis of critical habitat designation
for the Preble’s meadow jumping mouse. (Ecological Services Field
Office, Cheyenne, Wyoming).
182. http://ecos.fws.gov/species_profile/servlet/gov.doi.species_profile.servlets.SpeciesProfile?spcode
=A0C2
183. Russel, George, Executive Director, Colorado Department of Natural
Resources, Letter to Susan Linner, USFWS, regarding delisting of Preble’s
Meadow jumping mouse, June 1, 2004.
184. Brook, Amara, Michael Zint and Raymond De Young, “Species
Act Listing and Implications for Encouraging Conservation,” Conservation
Biology, Vol. 17, No. 6, December, 2003.
185. 69 FR 17627-17634, 4/5/2004.
186. Improving the Efficiency and Effectiveness of the Endangered Species
Act, USFS and BLM, December 15, 2003.
187. Tazik, David J., Chief, Ecosystem Evaluation and Engineering Division,
Environmental Laboratory, US Army Engineer Research and Development
Center, Testimony Before the Committee on Resources, United States
House of Representatives, Hearing on Lessons Learned Protecting and
Restoring Wildlife in the Southern United States under the Endangered
Species Act, April 30, 2005.
188. DSF Economic Impact, City of Colton, March 30, 2005.
189. Draft Economic Analysis of Conservation Actions to Protect Arroyo
Toad Release, USFWS, February 14, 2005.
190. Issue Paper: Economic Impact of the Designation of Critical Habitat
for the Southwestern Willow Flycatcher on the City of Phoenix Water
Supply. Submitted to: Industrial Economics for The U.S. Fish and Wildlife
Service By the City of Phoenix, September 14, 2004.
191. 68 FR 46753-46754, 8/6/2003.
192. Proving Partnerships Work, Southern California’s Achievements
under Natural Community Conservation Planning, Southern California
NCCP Partnership, March 2005.
193. 52 FR 28780-28786, 8/3/1987, http://ecos.fws.gov/docs/frdocs/1987/87-17383.pdf
194. Liebesman, Lawrence and Rofe Dentson, Endangered Species Deskbook,
the Environmental Law Reporter, Washington, D.C. 20003, p39.
195. 64 FR 607277, November 8, 1999.
196. “Final ESA Section 7 Consultation Handbook,” March
1998.
197. GDF Realty Investments, LDT; Park properties I, L.P.; and Park
Properties II, L.P. v. Gale Norton, Secretary of the Interior, et.al;
Petition for a writ of Certiorari In the Supreme Court of the United
States.
198. 68 FR46683-467326, 6/8/2003.
199. Gifford Pinchot Task Force v. USFWS, 378 F.3d 1059, 1069 (9th
Cir. 2004).
200. “The Current FWS Listing Program – Approximate Range
Of Average Costs Of Rulemakings,” USFWS, NCTC ES Listing Course,
Revised February 14, 2005. USFWS staff report that GPO does not accept
digitized maps for the printing of Critical Habitat notices in the
Federal Register. This cost difference between type and maps (line
art) may indicate that GPO relies upon obsolescent technology.
201. 69 FR 48570-48649, 8/10/2004.
202. “The Current FWS Listing Program – Approximate Range
Of Average Costs Of Rulemakings,” USFWS, NCTC ES Listing Course,
Revised February 14, 2005.
203. http://news.fws.gov/newsreleases/showNews.cfm?newsId=38487AB1-1143-3066-4062C69A9BF14731.
204. 68 FR 20227-20312, 4/23/2003.
205. http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2004_register&docid=fr07oc04-20.pdf
206. http://ecos.fws.gov/docs/frdocs/1987/87-17383.pdf
207. 67 FR 19811-19845, 4/23/2002.
208. http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2002_register&docid=fr15ap02-10.pdf
209. http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2001_register&docid=fr30ap01-14.pdf
210. http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2002_register&docid=fr24de02-23.pdf
211. 69 FR 75607-75771, 12/17/2004.
212. http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2001_register&docid=fr07fe01-14.pdf
213. USFWS, Critical Habitat in California as of January 28, 2005.