1. While it is important to create incentives for voluntary conservation actions, strengthening existing regulatory disincentives for non-compliance with the ESA is equally important.

2. All voluntary conservation programs including Habitat Conservation Plans (HCPs), Safe Harbor Agreements (SHAs), Candidate Conservation Agreements with Assurances (CCAAs), and Conservation Banks should be standardized to the fullest extent possible such that they are implemented consistently throughout the landscape in a transparent manner.

3. All voluntary conservation programs must result in a net conservation benefit for a species, both for declining species that may become listed in the future and for currently listed species.

4. For a net conservation benefit to be meaningful, it must be defined by a biologically-appropriate, scientifically based mitigation ratio of 2:1 in all cases (wherein two conservation “credits” must be generated to offset a single conservation “debit”).

5. All voluntary conservation incentives programs must include mandatory monitoring, verification, and self-reporting to be effective.

6. FWS should publish a directory of programs and provisions that can provide financial and technical assistance to landowners and managers who are considering undertaking voluntary conservation measures.

SCB’s full comments can be found here.

The NSO was listed as a threatened species in 1990, and 6.8 million acres of critical habitat was proposed for the owl in 1992.  This first critical habitat designation was challenged by the timber industry in court. In 2007, the FWS revised downward the NSO’s critical habitat to 5.8 million acres.  While the FWS’s 2012 proposal has identified 13.9 million acres of potential critical habitat, the FWS has proposed a variety of Alternatives that could reduce the final designated critical habitat to nine million acres. 

Equally troubling, the FWS is proposing that forestry “treatments” of less than 500 acres would not rise to the level of “destruction or adverse modification” of critical habitat.  SCB believes that such statements have the potential to improperly influence future consultations regarding activities in the owl’s critical habitat.  Finally, the FWS continues to embrace the concept of “active forestry” in the owl’s critical habitat without sufficient scientific validation.  FWS’s apparent decision to move forward with untested “active management” of federally owned forest lands at the landscape level prior to validation through scientifically designed experiements and peer-review represents a potentially serious lapse in the application of the scientific process.

In addition, the critical habitat proposal states that there may be even “greater exclusions” from the final critical habitat designation based on vaguely defined economic concerns.  SCB is concurrently filing comments on the FWS’s approach for analyzing the economic impacts of designating critical habitat, arguing that, while there will be substantial losses in ecosystem services and substantial harm to spotted owls, there will be virtually no tangible benefits if habitat is excluded from the final critical habitat designation based on these economic concerns.

To address the issue of the management of critical habitat more systematically, SCB has also filed a petition today with the FWS to revise and strengthen its regulations regarding the designation and protection of critical habitat.

Read SCB’s comments on the critical habitat proposal HERE.

Section 7 of the Endangered Species Act (ESA) requires that all agencies of the Federal government consult with FWS and NOAA (collectively the “Services”) on actions that could jeopardize the existence of threatened and endangered species or result in the “destruction or adverse modification” of a species’ critical habitat.  In 1986, the Services proposed a weak regulatory definition of the term “destruction or adverse modification,” that undercut the protective effects of critical habitat.  Despite the Services’ definition being held legally invalid by three separate Federal Courts of Appeals as far back as 2001, the Services have still not changed their legally invalid regulations.  SCB is proposing a new definition of these terms that has a clear scientific basis, and that will require the Services to consider and provide for the recovery, not just the survival, of threatened and endangered species.

SCB is also proposing changes to the Services’ regulations to ensure that the Services consider and address climate change and habitat connectivity in the context of species recovery when they designates critical habitat.  Finally, SCB is proposing that the Services adopt a strict timeline for processing petitions to designate critical habitat.  As of April 2011, critical habitat has only been designated for 604 or 44 percent of the 1,372 domestic species protected by the ESA.  The Services' ability to address this backlog would be significantly improved if they agreed to an objective timeline for designating critical habitat for those species which have not yet received critical habitat.

SCB is filing this petition concurrently with its comments regarding the FWS’s revised critical habitat for the Northern Spotted Owl (Strix occidentalis caurina).  The FWS is proposing to designate up to 13.9 million acres as critical habitat for the Northern Spotted Owl (NSO).  While this would be a positive step for the recovery of the NSO, unfortunately the FWS is simultaneously undermining the long-term effectiveness of critical habitat by including several policy decisions that could undercut the recovery of the NSO.  For example, the FWS is proposing that any logging project smaller than 500 acres would not represent “destruction or adverse modification” of spotted owl critical habitat, despite the fact that there is no scientific literature supporting this policy.  SCB’s proposed reforms of the ESA’s regulations would prohibit the FWS from chopping up the NSO’s critical habitat in an unscientific, high-risk manner.

This is the second petition filed by SCB in 2012 to reform, strengthen, and modernize the regulations that implement the ESA.  While the ESA remains one of the most comprehensive laws ever passed to prevent extinction, the regulations that implement the ESA have mostly stood unchanged since 1986, a year before the founding of the Society for Conservation Biology.  In late 2008, SCB briefed the Obama Transition team on a set of recommendations for improving the implementation of several U.S. laws including the ESA. Since then we have worked with the FWS and NOAA to address the reforms we suggested in 2008.

Read the petition to the Department of Interior and Department of Commerce HERE.

Section 4(b)(2) of the ESA gives the FWS the discretion to exclude habitat from a final critical habitat designation if it determines that the benefits of exclusion outweigh the benefits of specifying an area as critical habitat. In the draft proposal, the FWS has identified nearly 14 million acres of potential critical habitat for the NSO.  However, FWS is considering excluding some areas “impose the least burden on society, and on maintaining flexibility and freedom of choice for the public.” SCB believes that there are no economic data to support the underlying assumptions of this statement, and that a full assessment of the ecosystem services that the forest habitats of the NSO provide would clearly demonstrate the overwhelming benefits that inclusion within the critical habitat would entail over the relatively minimal benefits, if any, of excluding that critical habitat.  Accordingly, SCB recommends that the FWS not exclude any acreage from the final critical habitat designation for the NSO based on its authority under Section 4(b)(2).

SCB’s comment letter on the FWS economic analysis can be found HERE.

The FWS’s proposed revision to the Northern Spotted Owl’s critical habitat is a particularly complex rulemaking. SCB is concurrently filing additional comments regarding other policy concerns relating to the revised critical habitat proposal, including (1) a proposal to utilize “active forestry” techniques to manage spotted owl critical habitat, and (2) a proposal regarding the size and scale of possible forestry activities that will trigger “adverse modification” of spotted owl critical habitat. 

Steller sea lions (Eumetopias jubatus) were protected under the Endangered Species Act as a threatened species in 1990 based primarily on population declines that resulted from unsustainable fisheries management. In 1994, NMFS divided the Steller sea lion into two Distinct Population Segments (DPS). The Western DPS of Steller sea lion was uplisted to endangered status, while the Eastern DPS remained threatened. While the data indicate that conservation actions have helped the Eastern DPS meet its recovery targets for delisting in eastern Alaska, British Columbia, and possibly Washington and Oregon, the data do not demonstrate that recovery targets have been met in California. Steller sea lions were extirpated from the Channel Islands in the 1980s and remain well below their historic population levels. Today, Steller sea lion populations in California are only one-third their populations levels from the first half of the 20th century. For this reason, SCB and ASM believe that it is premature to delist the Eastern DPS at this point.

The Endangered Species Act (ESA) provides the National Marine Fisheries Service with the ability to protect a species that is threatened or endangered in “a significant portion of its range” as well as those species that are threatened or endangered throughout their entire range. The offshore waters of the California Current represent an ecological region that is distinct from those ecological regions farther north. Accordingly, SCB and ASM are urging the NMFS to protect the California portion of the Steller sea lion’s range under the ESA. SCB is particularly concerned that NMFS is discounting the value of the California population based on a draft joint policy with the Fish and Wildlife Service which would re-interpret the phrase “significant portion of its range” in the ESA to mean something far less than the best available science, the plain language of the Act, and the purposes of the Act would indicate. SCB provided extensive comments on this draft policy earlier in 2012 because the Services draft joint policy risked stripping the term “significant portion of its range” of any independent meaning or conservation value. Although the draft policy has not been finalized, NMFS appears to rely on this policy in denying the Steller sea lion continued protection in California.

Under Section 7 of the Endangered Species Act (ESA), all agencies must consult with FWS and NOAA on actions that might jeopardize the existence of threatened and endangered species. Shortly after the ESA was passed, the FWS and NOAA established regulations that made clear that all federal agencies would consult on their actions whether they occurred within the United States or overseas. In 1986, the Reagan administration weakened those regulations by eliminating the requirement that Federal agencies consult on actions that they might take that could affect species that the U.S. lists as endangered or threatened which occur in foreign nations. The 1986 changes were found to be invalid by the Eighth Circuit Court of Appeals, but in a momentous decision, which occurred 20 years ago to this day, a divided Supreme Court preserved the 1986 regulations on a procedural technicality. On the 20th anniversary of this Supreme Court decision, SCB is beginning the formal process to reform and strengthen the ESA’s implementing regulations by submitting its petition today.

The Administrative Procedure Act (APA) gives each citizen and organization the right to petition any agency of the Federal government “for the issuance, amendment, or repeal of a rule.” The APA further requires the petitioned agency to fully consider the merits of a petition and respond within a reasonable period of time. Accordingly SCB is invoking this right to compel the FWS and NOAA to consider whether the regulations that implement the ESA require reform. Given the continued extinction crisis both within the United State and around the world, SCB believes that these changes are warranted.

This petition represents the beginning of a second phase in a broader effort by SCB to reform, strengthen, and modernize the regulations that implement the ESA. While the ESA remains one of the most comprehensive laws ever passed to prevent extinction, the regulations that implement the ESA have mostly stood unchanged since 1986, a year before the founding of the Society for Conservation Biology. Many of the advances in knowledge from the field of Conservation Biology and its related disciplines have yet to be incorporated by the FWS and NOAA in the agencies’ implementation of the ESA. In late 2008, SCB briefed the Obama Transition team on a set of recommendations for improving the implementation of several U.S. laws including the ESA. Since then we have worked with the FWS, NOAA, and other agencies as they have addressed some, but not all, of the reforms we suggested in 2008. In order to expedite the process of implementing these proposed reforms, we are providing scientific and technical drafting advice through this formal petition. In the months to come, SCB plans to file additional petitions asking the FWS and NOAA to revise and strengthen other aspects of the ESA’s implementation regulations.

The scientific societies urged the DOJ to seek fines under a 1988 provision that requires the fines to be directed to cooperative state and Federal efforts to conserve and recover endangered and threatened species. This could provide as much as $57 million for the Cooperative Endangered Species Conservation Fund in response to the documented deaths of sea turtles alone. Funds from oil spill fines allocated through the ESA’s Section 6 Cooperative Fund might also be used to help restore some of the listed and candidate plant species that were destroyed or adversely affected by the spill. Such broader restoration work is essential as wildlife and fish depend on healthy marine, littoral, and estuarial plants. The impacts of the spill on species and ecosystems may persist far into the future and might require hundreds of millions of dollars in restoration to correct the damage.

The full letter is here.

“I am disheartened that we are revisiting this hard-fought protection for northern spotted owls. The spotted owl continues to need protection,” Paul Beier, president of the Society for Conservation Biology, said. “Any activity that can have significant long-term consequences for the owl must be fully vetted by the peer review process. An environmental impact statement is the best vehicle for accomplishing this task,” he said.

Scientists note that critical habitat provides the ecological conditions that are essential for the survival and recovery of threatened and endangered species. Accordingly, the ESA requires all federal agencies, including the DOI, to avoid activities that will destroy or adversely modify critical habitat. While the designation of critical habitat does not eliminate the flexibility that the DOI has with respect to managing northern spotted owl habitat, it does require the agency not to embark on a management scheme based on untested forestry management activities which could have significant, unforeseen, and long-term negative implications for the spotted owl.

“In 2011, Secretary Salazar was the first Secretary to approve a Scientific Integrity Policy, in part to re-establish the proper role of science in decision making regarding endangered species,” said Paul R. Krausman, President of The Wildlife Society. “While there may be legitimate disagreements regarding the best approach to recovering the northern spotted owl, peer review and a full environmental impact statement ensures that science will guide this work and keep mistakes to a minimum as we work toward the recovery of the owl,” he said.

There appears to be little scientific knowledge regarding the effects on the northern spotted owl of these proposed active forestry management techniques. Northern spotted owls primarily live in closed canopy, old-growth forests. The primary cause for their decline and subsequent protection under the Endangered Species Act (ESA) was due to unsustainable timber harvesting in the Pacific Northwest. While the DOI has asserted that these new active management activities will benefit the northern spotted owl over the long-term, scientists counter that this appears to be an untested and unverified management theory

According to John R. Faaborg, President of the American Ornithologists’ Union, “The USFWS has proved thoughtful in its approach to the barred owl question by planning carefully designed experiments to determine if the reduction of competition by this encroaching species will benefit the northern spotted owl. The AOU encourages the Service to take the same thoughtful approach to the issue of forest management and timber removal by approaching it first on an experimental basis.”

The full letter is here.

SCB outlined several areas where the Services’ draft policy appears to ignore key principles from the field of conservation biology. Most importantly, the policy appears to ignore the basic purpose of the ESA, which clearly envisions protecting declining species, and the ecosystems on which they depend, before they become threatened or endangered with extinction globally, and to restore such threatened species that have been extirpated from significant portions of their historic range.

SCB developed a detailed alternative to the Services’ proposed policy that would better reflect the intent and goals of the ESA and best practice in applyng conservation science to effect recovery of endangered and threatened species.

The full text of SCB comments can be found here.

Background provided by the Fish and Wildlife Service on the Services’ draft policy can be found here.

SCB recommended the following changes to the Services’ Draft Policy:

1) A definition of “significant” should focus primarily on a species’ geographic representation within a defined ecoregion or ecosystem unit rather than based on a risk of extinction to the entire species.

2) Extirpation from an ecoregion or ecosystem unit, which constitutes part of a species’ historic range, provides a justification for finding that a species is endangered in a significant portion of its range.

3) The threat of extirpation from that ecoregion or ecosystem unit would provide the justification for finding that such species is threatened within a significant portion of its range.

4) A substantial portion of unoccupied historic range can constitute a significant portion of a species’ range and can provide a justification for finding that a species is threatened or endangered within a significant portion of its range, rather than the categorical refusal to consider historic range as the Services propose.

5) Recovery within an ecoregion or ecosystem unit can be prioritized using existing guidance on setting recovery priorities. This would focus recovery of a species to an ecoregion or ecosystem unit where recovery is feasible, while not requiring that a species be restored to every portion of its former range that is now unoccupied.

6) A definition of “significant portion of its range” that focuses on geographic representation, as modern conservation science recommends, requires that the Services modernize their 1996 joint Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act to allow a distinct population segment of a species to be based on ecoregion or ecosystem unit boundaries.

7) The future hypothetical consequences of listing species based on a particular definition of “significant portion of its range” should not be used as a justification for defining “significant portion of its range” in such a manner as to render the phrase devoid of scientific and practical meaning in the first instance. The Services should therefore remove part one of their Draft Policy: Consequences of Listing.

8 ) The Services should develop an integrated policy to fully reconcile the requirements of Sections 4(a), 4(b), and 4(c) of the Endangered Species Act together with the definition of “significant portion of its range” by referring the matter to a panel comprised of representatives nominated by scientific and professional societies as the Act advises the Services to do in Section 4(b)(5)(C) with regard to listing decisions.

1. assume and not require the responsible official to show that the plan includes all practicable steps conserve the full biological diversity of the planning unit as measured by indicators that are reasonably measureable;
2. not protect as species of concern many species that we have a duty to conserve under international law, such as many migratory birds,
3. not conserve species listed as threatened or endangered by the states in which the Forests occur;
4. focus on species that are present and not require the Service to maintain conditions needed for the endangered species to reoccupy areas needed for their recovery and delisting;
5. require only that the plan “contribute to” maintaining viable populations that depend on conservation on non-Forest Service lands, but does not specify that the Service’s contribution should reflect others’ contributions so as to ensure that the combination is most likely to be effective.”