The snail darter is a miniature fish with feathery fins and inky eyes. When it was discovered in 1973, the species was thought to exist in just one stretch of the Little Tennessee River — a stretch about to be inundated by the Tellico Dam. In 1975, after the U.S. Fish and Wildlife Service listed the fish under the new Endangered Species Act, dam opponents sued to halt construction, arguing that it would obliterate the species. They won in the U.S. Supreme Court, and the dam was temporarily dead.
At the heart of the case was Section 7 of the Endangered Species Act, which has sparked impassioned battles ever since. If the Fish and Wildlife Service finds that a project requiring federal environmental review will jeopardize an endangered species or its critical habitat, it must offer alternatives or modifications through a consultation process with other agencies and the developer. Those alternatives can have economic consequences: To save the snail darter, abandon the dam. To protect the spotted owl, stop old-growth logging. To preserve California’s tiny Delta smelt, send farmers less irrigation water at times.
Cases like these rile up the law’s critics. After a 2008 Delta smelt “jeopardy finding,” California Republicans and farmers accused the government of creating the drought just to save a “stupid little fish.” Environmentalists usually dismiss claims of economic havoc as hyperbole. This fall, they pointed to a new study as proof. It found that out of 6,829 formal consultations from 2008 to 2015, only one determined that a project would harm habitat, while two warned that a listed species would be jeopardized. Study author Ya-Wei Li of Defenders of Wildlife concludes that Section 7 doesn’t stop development: “It says, ‘Do it in a smart way.’ ”
Jeopardy findings have been particularly rare recently. Under President Barack Obama, only .03 percent of consultations resulted in them. That’s compared to 8.9 percent between 1979 and 1981, and 17.5 percent between 1987 and 1991.
But the decline, however dramatic, is only a rough gauge of Section 7’s impact. The 1987 to 1991 period included a few dozen jeopardy findings for Oregon timber sales that threatened spotted owls. Since then, says Fish and Wildlife spokesman Gavin Shire, a more collaborative process has evolved, where the agency works with stakeholders to modify projects before making official findings. So the decline doesn’t necessarily indicate an increase in harmful development. It doesn’t tell you whether developers built mitigation into proposals, or dropped projects altogether, nor how much conservation measures cost or accomplished, according to Wyoming lawyer Mike Brennan.
The whole point of consultations is to respond to concerns and avoid harming wildlife, adds Barbara Craig, a Portland lawyer who advises private clients on Endangered Species Act compliance. Over two decades, she’s seen the process improve as agencies and developers become more familiar with compliance. The decline in jeopardy calls, she says, is a sign of that progress.
Li thinks that’s true, to some extent, but says there are instances where a jeopardy finding seemed warranted. Responding to a draft environmental impact statement in 2012, Fish and Wildlife urged the Bureau of Land Management to reject a Mojave Desert solar plant that would cut off a corridor that connects endangered desert tortoise populations and helps to prevent genetic isolation. Yet in 2014, the agency determined the same project wouldn’t jeopardize tortoises. Defenders sued, and litigation is ongoing.
“A lot of environmentalists thought that the Obama administration was going to be a new day for wildlife protection,” Li says. But endangered species seem to rank low on its environmental priority list. The president has made statements about clean air and clean water in his State of the Union addresses, Li points out, but never mentioned endangered species. “To make a jeopardy call, you’re going to have to be willing to defend it,” he says, and that’s tough to do without political capital.
The data point to a broader weakening of legal protections in favor of a collaborative, landowner-friendly approach, says Pat Parenteau of the Vermont Law School. Sometimes this approach makes sense, he says. Safe harbor agreements, for example, assure landowners who improve habitat that they won’t face future restrictions. On the other hand, voluntary deals to prevent species from getting listed often lack mechanisms to ensure that promises are kept.
Voluntary efforts justified the recent decision not to list the greater sage grouse, a test case for the efficacy of cooperative conservation. But Parenteau remains skeptical. “If it was producing good results, I’d be happy,” he says. “But if you look at what’s happening to species” — habitat loss, competition from invasive species, climate change — “all the indicators are downward.”
Yet jeopardy calls are no guarantee, either. The Tellico Dam was completed after Congress exempted it from the Endangered Species Act. And in a brutal drought, despite some cuts in water pumped from its habitat, Delta smelt numbers reached historic lows. In a February survey to gauge the abundance of adult smelt, biologists found fish at only five of 40 sampling sites. Over four days they netted just six fish.
Contributing editor Cally Carswell writes from Santa Fe, New Mexico. Follow @callycarswell
This article appeared in the print edition of the magazine with the headline ‘A smart way’ for species.
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