SCB Policy Blog

On July 5th, SCB submitted formal comments to the U.S. Fish and Wildlife Service (FWS) on the revised critical habitat of the Northern Spotted Owl (Strix occidentalis caurina) under the Endangered Species Act.  The FWS is proposing to designate up to 13.9 million acres as critical habitat for the Northern Spotted Owl (NSO).  SCB strongly supports the full designation as proposed by FWS.  Unfortunately, the FWS is considering excluding up to five million acres, if not more, based on social or economic considerations. SCB’s comments note that these considerations are in conflict with the ESA’s best science mandate and that they could undermine not only the recovery of the NSO, but also the long-term effectiveness of the Endangered Species Act or all listed species. 

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.

On July 5, 2012, the Society for Conservation Biology submitted a formal petition to the U.S. Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA) requesting that these agencies strengthen their regulations on critical habitat under the Endangered Species Act.

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.

On July 5th, the North America Section of SCB submitted formal comments on the economic analysis of the benefits and impacts of the revised critical habitat proposal for the Northern Spotted Owl (Strix occidentalis caurina).  Despite the rapid advances in ecological economics to quantify environmental benefits and values, the U.S. Fish and Wildlife Service (FWS) has yet to develop methodologies for even general approximations of environmental benefits, commonly known as ecosystem services, when it makes decisions directly affecting the biodiversity such as the designation of critical habitat.  By failing to even attempt to quantify ecosystem services, the FWS is not employing the best available economic science regarding the benefits that endangered species and their critical habitat provide.  By failing to apply the best available economic science, FWS undervalues the economic benefits of critical habitat and overestimates the economic costs of designating such habitat, resulting in decisions that ultimately may lead to long-term harm to endangered species, the environment, and society.  SCB’s comments address the shortcomings of the FWS’s draft economic analysis for the revised critical habitat proposal for the Northern Spotted Owl (NSO), and provide a road map for how FWS can improve future economic analyses on decisions relating to the protection of biological diversity.

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. 

On June 18, the Society for Conservation Biology and the American Society of Mammalogists (ASM) submitted formal comments (available here) to the National Marine Fisheries Service (NMFS) regarding the agency’s proposal to remove the Eastern Distinct Population Segment of Steller Sea Lion from the list of threatened and endangered species.

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.

On June 12, 2012, the Society for Conservation Biology, on behalf of its North America and Marine Sections submitted a formal petition (link) to the U.S. Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA) requesting that these agencies restore the global geographic scope of the Endangered Species Act’s consultation requirement.

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.

Several international scientific societies joined together on April 2 in asking the Department of the Interior (DOI) to reconsider its proposal for expansion of commercial timber harvesting in critical habitat for threatened Northern Spotted Owls in the Pacific Northwest. In a letter to DOI Secretary Ken Salazar, the Society for Conservation Biology, The Wildlife Society, and the American Ornithologists’ Union called for a full environmental impact statement (EIS) and peer-reviewed scientific assessment on the potential impacts of a DOI proposal that would allow substantial commercial timber harvesting in the critical habitat of threatened northern spotted owls in the Pacific Northwest. The societies are recommending that the EIS identify a range of experimental forestry techniques, appropriate scientific methodologies to assess those techniques, and a scientific process for evaluating impacts on northern spotted owls.

“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.
Read more…

Today, the Society for Conservation Biology submitted extensive comments to the U.S. Fish and Wildlife Service and the National Marine Fisheries Service concerning the Services’ proposal to define and implement the U.S. Endangered Species Act’s phrase “significant portion of its range.” Because the U.S. Endangered Species Act allows the Services to list species as threatened or endangered based on threats “throughout all or a significant portion” of a species’ range, it is critically important that this definition be based on the best available science in order to effectively conserve biodiversity.

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.
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The National Forest Management Act (NFMA) contains some of the most powerful mandates to preserve biodiversity on our public lands. NFMA requires the Forest Service to maintain all plant and animal species found on forests and grasslands as viable components in their ecosystems. On January 26, the federal government finalized a new set of regulations that revise how NFMA is implemented. In April 2011, SCB scientists reviewed the proposed changes and suggested improvements. In an article covering the revisions, the Washington Post quoted Society for Conservation Biology policy director John Fitzgerald that the rule continued to have “several weaknesses” include the fact that it would “assume and not require the responsible official to show that the plan includes all practicable steps to conserve the full biological diversity” within a given forest.” Read more…

The Fish and Wildlife Service has proposed removing gray wolves in Wyoming from the list of threatened species and returning them to state management. The state of Wyoming has proposed a management plan that divides the state into three zones: 1) a Wolf Trophy Game Management Area (WTGMA) where wolf hunting is seasonally permitted, 2) the remainder of the state where a designation of the species as a ‘predator’ allows year-round unrestricted hunting and other forms of lethal control, and 3) seasonal expansion of the WTGMA by 80 km southward for 4.5 months during peak wolf dispersal season. While in some respects the Wyoming wolf population is healthy and may merit delisting, SCB-North America Section is concerned that a problematic precedent for connectivity is being proposed in this management plan. The plan envisions that artificial translocation (e.g., movement of wolves in trucks) is adequate for recovery in place of allowing natural dispersal between wolf populations.
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SCB’s North America section has previously commented on the proposed construction of the Keystone XL pipeline because the pipeline controversy touches on broader concerns regarding sustainable energy and wildlife conservation (see here and here). The White House has announced plans to delay a decision on permitting the pipeline in order to allow more scrutiny of these and other concerns (news report).
In response to the announcement, SCB President Paul Beier joined Policy Committee Member and Canadian scientist, Paul Paquet, in issuing the following statement: “SCB plans to continue its strong scrutiny of the entire tar sands process as well as any alternate routes for the Keystone XL and Enbridge Pipelines. It seems likely that any routes will still cause great harm to the whooping crane, several ecosystems in Canada and the United States, and the earth’s climate.”