Is the ESA being gutted in order to save it?

 

Like navigators of a sinking hot air balloon, the U.S. Fish and Wildlife Service is hastily casting off heavy parts of the Endangered Species Act - perhaps before a reform-minded Congress grounds the law altogether.

The latest changes surfaced in late July when the Interior Department announced new streamlined, "user-friendly" consultation procedures for federal land agencies. Under the ESA, the Forest Service and the Bureau of Land Management must consult with federal biologists before approving activities that might harm endangered species. Environmentalists have long complained that the agencies fail to take consultation seriously and the courts have often supported them, delaying timber sales and other projects.

Two weeks earlier, U.S. Fish and Wildlife Service Director Mollie Beattie ordered her staff to apply a more rigorous scientific standard before deciding whether to list a species. In the same memo, Beattie eliminated the Category II list of about 4,000 candidate species.

The plants and animals listed under Category II may need federal protection, agency officials say, but have lower priority due to insufficient scientific information. By axing Category II, the agency leaves itself with a much smaller - and to landowners and lawmakers, less threatening - list of 182 Category I species that await formal protection under the law.

The changes follow another made last December which narrows the definition of what constitutes a distinct "population segment" of a species. That means species that are abundant in Canada and elsewhere but rare in the United States, such as the woodland caribou, may not receive federal protection.

"The Clinton administration is trying to save the Endangered Species Act by destroying it," charges Jasper Carlton of the Boulder, Colo.-based Biodiversity Legal Foundation. "They're deserting sound science because they're scared to death of a right-wing Congress."

Members of Congress intent on rewriting the law have criticized the Fish and Wildlife Service for trying - often at great expense - to protect species they consider to be of marginal importance to the public. Bills substantially limiting the act have already been introduced in both the House and the Senate (HCN, 7/24/95).

Carlton believes the agency's new policies are not only politically driven and bad for the nation's plants and animals, but are also illegal. "They're unilaterally changing policy without going through any rule-making procedures or public review."

His foundation has notified the Fish and Wildlife Service that it will sue unless the agency publishes its proposed policies in the Federal Register and subjects them to the standard public-review process.

An agency spokesman denies the political climate prompted the new standards. Ren Lohoefener, deputy chief of endangered species enforcement for the Fish and Wildlife Service in Washington D.C., says, "We just want to do a better job of identifying and protecting species of concern on a national basis."

The agency is working with the states to develop a national "high-priority" list of rare and endangered species, Lohoefener says. "When we have developed that list, along with all of our partners, the benefits should be tremendous," he says.

"We're trying to focus on the species that are most in need of protection," says staff biologist Rick Sayers. "The Category I species are the highest priority. Category II species can't be as high of a priority. If, at a later date, someone provides more information to justify bumping that species to Category I, then that will occur. It happens all the time."

Critics contend that by eliminating the Category II list the agency will send some of the 4,000 species the way of the dodo bird. "They're trying to find ways to bureaucratically sweep species under the rug," says Eric Glitzenstein, an environmental lawyer in Washington, D.C.

Pam Eaton, a staffer with the Wilderness Society in Denver, says the Category II list provided the agency with advance warning.

"They (agency officials) talk a lot about getting ahead of the curve and helping species that may soon be headed toward extinction," she says. "Those species are on the Category II list."

Environmentalists also criticize the agency's new rule requiring the addition of "substantial" information - well-documented, peer-reviewed scientific data - with any petition for listing. Carlton, who has filed more than 100 petitions, says "Take the mountain yellow-legged frog. We know this species is teetering on the edge of extinction - gosh, we've only got a handful. But do we have to wait for a peer-reviewed study before we protect it?"

Even Fish and Wildlife Service officials admit that tightening the standards for listing may drive some species to extinction, particularly those without any perceived economic or societal value.

"If the species are considered to be really important to society, we probably know about them," says Sayers. "For those that are really important ecologically, it's possible we don't know about them.

"And I think it's very safe to say there are lots of species that could use their habitats protected that the Service isn't aware of yet."

No agency decision on endangered species has ever been overturned on sloppy science, Sayers says, but the U.S. Fish and Wildlife Service wants to be able to defend its decisions to Congress.

The writer works in Boise, Idaho.