State outlines problems and fixes to ESA

By Carl Portman

Environmentalists have petitioned the federal government to list 57 species in Alaska on the Endangered Species Act (ESA), according to Doug Vincent-Lang, Acting Director of the Division of Wildlife Conservation at the Alaska Department of Fish and Game.

“There are many more on the way, just look at the website for the Center for Biological Diversity for their list,” Vincent-Lang said. “The list is growing monthly.”

Speaking at the RDC Alaska Resources Conference in Anchorage November 15, Vincent-Lang discussed the current status of ESA listings in Alaska, problems Alaska sees with how the ESA is being implemented, and how the act should be fixed to address these problems.

Vincent-Lang said the ESA was meant as a safeguard and has been used successfully to prevent species extinctions where species were in significant decline and facing immediate risk of extinction, and when the threats to the species’ survival were eminent and easily identifiable and manageable.

“This is a goal Alaska supports,” Vincent-Lang said. “We have an excellent history in managing our state’s species based on sustained yield principles. Under our management, no species have become extinct.”

Recent ESA actions by federal agencies, however, have caused concern about how the ESA is being applied.

For example, in response to petitions from various environmental groups, federal agencies through precautionary principles are listing species irrespective of current health or abundance, and based solely on models speculating possible extinction in the distant future, in some cases 100 years from now, Vincent-Lang said.

This began with the listing of the polar bear, which despite Alaska’s concerns with the untested models, remain at all-time record high numbers, even though the Chukchi population has experienced some of the greatest sea ice loss over the past decade. The State said it also has evidence that polar bears have survived periods as warm or warmer than are projected to occur over the next 100 years.

Recently, the National Marine Fisheries Service proposed to list the ringed seal based on speculative climate impacts 100 years into the future, despite there being over three million in existence and that its own information suggests there will likely be no impact for the first 50 years. This culminated recently in a petition of 47 coral species in which the petitioner did not even discuss the current health or range of the species.

“Alaska views this as an unprecedented and unnecessary federalization of species based solely on precautionary principles,” Vincent-Lang said.

He identified other areas of federal practice that make navigating through the ESA extremely difficult, including court deference to federal science, expansive critical habitat designations, inconsistent application of the ESA by federal agencies, consistent federal understatement of projected economic impacts when making critical habitat designations, poor involvement by the states in ESA decision making and species recovery plans, and establishment of species recovery goals beyond the risk of extinction.

Vincent-Lang listed several recommendations for future congressional reform of the ESA: provide specific guidance on when and how federal agencies can designate Distinct Population Segments and/or subspecies; define foreseeable future and acceptable level of risk; disallow multi-species petitions; only allow a species to be listed if the factor can be addressed by the ESA; give states equal deference to federal agencies in all ESA processes; stipulate that courts are not required to defer to an agency conclusion that runs counter to that of other agencies or individuals with specialized expertise in a particular technical area; make designation of critical habitat discretionary and not required at the time of listing; require a co-extensive approach to estimating economic impacts of designations to more accurately capture costs; allow states to regulate take under Section 6 agreements for species that are currently healthy but face possible risk sometime in the distant future, and define meaningful involvement of states under Section 4(i).

Vincent-Lang also recommended: Relax requirement for 90-day findings and 12-month status reviews; limit settlement fees for missed deadlines, and grant states the ability to automatically intervene in all lawsuits involving species within their jurisdictions; allowing a state affected by an ESA listing decision that can produce science challenging agency science or modeling, should be able to object, stop the process, and require an independent science board to review all the issues and release an opinion before agency action on the petition can proceed any further; define recovery as the number necessary to remove extinction, not to fully recover the species and its habitat; disallow recovery goals aimed at ecosystem restoration; add requirements for a state to be actively consulted and collaborated with and having standing to object to and challenge a recovery plan and refer it to an independent science panel.

Sonja Jahrsdoerfer, Regional Endangered Species Coordinator with the U.S. Fish and Wildlife Service, also spoke at the RDC conference. She said the ESA is “an effective law” and offered suggestions for making it better. She said her agency’s goals for implementing the ESA in Alaska include enhanced cooperation with its partners; work with stakeholders to fairly implement the law; ensure clear and consistent policies and implementation; base decisions on sound science, and reduce the frequency and intensity of conflicts.

Jahrsdoerfer noted the Service has worked cooperatively with the oil and gas industry for decades to protect polar bears and has integrated ESA and Marine Mammal Protection Act requirements. She said the agency has also worked closely with the fishing industry to reduce bycatch by as much as 100 percent, and worked closely with the Forest Service and the timber industry to integrate species’ and habitat protection with timber availability needs.

Jahrsdoerfer said the Service has completed 5,750 Section 7 ESA consultations since 2002.

“Ninety-eight percent of these were resolved through the informal consultation process,” she said. “We have not stopped a single project or required major modifications to a proposed action. We coordinate with project proponents to minimize adverse effects to species, while allowing projects to proceed.”

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