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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. 

High-intensity pulses produced by seismic air gun surveys can cause a range of impacts on marine mammals, fish, and other marine life, including habitat displacement and disruption of vital behaviors essential to foraging and breeding.  In some cases, seismic air gun surveys can result in injuries or mortalities to marine species, including marine mammals.   For these reasons, SCB is supporting Alternative C, the no action alternative, because it represents the most precautionary approach to managing the ongoing development of the Atlantic Ocean’s natural resources, while providing sufficient protection for its critically endangered wildlife.  Under this alternative, BOEM would not permit any seismic activities in the Atlantic ocean with regard to oil and gas exploration.  Adoption of Alternative C would not affect BOEM's ability to move forward with offshore wind or other renewable energy activities.

The SCB comment letter can be found HERE.

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.

IPBES aims to tackle head-on the accelerating worldwide loss of biodiversity and degradation of ecosystem service by bridging the gap between accurate, impartial and up to date science and policy-makers. Although many organizations and initiatives contribute to improving the dialogue between policy-makers and the scientific community in this field, IPBES is established as a new platform, recognized by both the scientific and policy communities to address the existing gaps and strengthen the science-policy interface on biodiversity and ecosystem services. “Today, biodiversity won”, said the chair of the meeting, Sir Robert Watson, Chief Scientific Advisor of the Department for Environment, Food and Rural Affairs of the United Kingdom. “Over 90 governments successfully established the science-policy interface for all countries. Biodiversity and ecosystem services are essential for human wellbeing. This platform will generate the knowledge and build the capacity to protect them for this and future generations,” he said.

Irina Bokova, Director-General of UNESCO, said, “The creation of IPBES, just a few weeks away from the Rio+20 Conference, is a strong signal, and I congratulate this significant progress towards the conservation of biodiversity.” “I hope that this body will allow biodiversity to be better taken into account in sustainable development strategies, as did the IPCC for climate change over the last 20 years. Biodiversity loss is a key indicator of the changes which are affecting our planet”. She added that IPBES “will provide a more efficient coordination tool between researchers and decision-makers in order to rise to this challenge. UNESCO has supported this process since its inception and will do everything to bring its long experience and to mobilize its scientific networks in the fields of water, oceans and biodiversity in the service of IPBES,” she added.

IPBES will respond to requests for scientific information related to biodiversity and ecosystem services from governments, relevant multilateral environmental agreements and United Nations bodies, as well as other relevant stakeholders. A core trust fund will be established to receive voluntary contributions from governments, United Nations bodies, the Global Environment Facility (GEF), other intergovernmental organisations and other stakeholders, such as the private sector and foundations.

The core functions of IPBES will encompass the following areas:
• To identify and prioritise key scientific information needed for policymakers and to catalyse efforts to generate new knowledge;
• To perform regular and timely assessments of knowledge on biodiversity and ecosystem services and their interlinkages;
• To support policy formulation and implementation by identifying policy-relevant tools and methodologies; and
• To prioritise key capacity-building needs to improve the science-policy interface, and to provide and call for financial and other support for the highest-priority needs related directly to its activities.

IPBES’s role, mandate and key principles are:
• To collaborate with existing initiatives on biodiversity and ecosystem services, including multilateral environmental agreements, United Nations bodies and networks of scientists and knowledge holders, to fill gaps and build upon their work, while avoiding duplication;
• To be scientifically independent and ensure credibility, relevance and legitimacy through the peer review of its work and transparency in its decision-making processes;
• To use clear, transparent and scientifically credible processes for the exchange, sharing and use of data, information and technologies from all relevant sources, including non-peer-reviewed literature, as appropriate;
• To recognise and respect the contribution of indigenous and local knowledge to the conservation and sustainable use of biodiversity and ecosystems; • To provide policy-relevant information, but not policy-prescriptive advice, mindful of the respective mandates of the multilateral environmental agreements;
• To integrate capacity-building into all relevant aspects of its work according to priorities decided by the plenary; • To recognise the unique biodiversity and scientific knowledge thereof within and among regions, and also recognise the need for the full and effective participation of developing countries and for balanced regional representation and participation in its structure and work; • To take an interdisciplinary and multidisciplinary approach that incorporates all relevant disciplines, including social and natural sciences;
• To recognise the need for gender equity in all relevant aspects of its work; • To address terrestrial, marine and inland water biodiversity and ecosystem services and their interactions;
• To ensure the full use of national, subregional and regional assessments and knowledge, as appropriate.

More information is available at: http://www.ipbes.net/

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.