Does conserving species actually curb development?

A new study suggests ESA doesn’t stop economic growth, but the devil’s in the details.

  • A 2009 march in Fresno, California, organized by the Latino Water Coalition, to protest decreased water deliveries to Central Valley farmers to protect Delta smelt.

    Mike Rhodes/Fresno Alliance
 

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.

High Country News Classifieds
  • MEMBERSHIP MANAGER
    For more information visit www. wyofile.com/careers/
  • THRIVING LOCAL HEALTH FOOD STORE FOR SALE
    Turn-key business opportunity. Successful well established business with room to grow. Excellent highway visibility.
  • DEVELOPMENT DIRECTOR
    For more information, visit www.wyofile.com/careers/
  • SONORAN INSTITUTE, CEO
    Chief Executive Officer Tucson, Arizona ABOUT SONORAN INSTITUTE Since 1990, the Sonoran Institute has brought together diverse interests to successfully forge effective and enduring conservation...
  • STAFF ATTORNEY
    STAFF ATTORNEY POSITION OPENING www.westernlaw.org/about-us/clinic-interns-careers The Western Environmental Law Center (WELC) is a high-impact, nonprofit public interest environmental law firm with a 27-year legacy using...
  • PROJECT MANAGER
    Position Summary Join our Team at the New Mexico Land Conservancy! We're seeking a Project Manager who will work to protect land and water across...
  • SEEKING PROPERTY FOR BISON HERD
    Seeking additional properties for a herd of 1,000 AUM minimum. Interested in partnering with landowners looking to engage in commercial and/or conservation bison ranching. Location...
  • DIRECTOR OF PRODUCT AND MARKETING
    High Country News seeks a Director of Product and Marketing to join our senior team during an exciting chapter of innovation and growth. This individual...
  • OUTREACH DIRECTOR
    Upper Missouri Waterkeeper seeks an Outreach Director to play a key role designing and leading activities and initiatives that engage citizens in water resource decisionmaking,...
  • WILDLIFE HAVEN
    Beautiful acreage with Teton Creek flowing through it. Springs and ponds, lots of trees, moose and deer. Property has barn. Easy access. approx. 33 acres.
  • ARIZONA CONSERVATION CORPS PROGRAM DIRECTOR
    Arizona Conservation Corps is seeking a Program Director in Flagstaff or Tucson
  • COPPER STAIN: ASARCO'S LEGACY IN EL PASO
    Tales from scores of ex-employees unearth the human costs of an economy that runs on copper.
  • EXPERT LAND STEWART
    Available for site conservator, property manager. View resume at http://skills.ojadigital.net.
  • CONSERVATIONIST? IRRIGABLE LAND?
    Stellar seed-saving NGO is available to serious partner. Package must include financial support. Details: http://seeds.ojaidigital.net.
  • CANYONLANDS FIELD INSTITUTE
    Colorado Plateau Natural & Human History Field Seminars. Lodge, river, hiking options. Small groups, guest experts.
  • WESTERN NATIVE SEED
    Specializing in native seeds and seed mixes for western states.
  • CHUCK BURR'S CULTUREQUAKE.COM BLOG
    Change will happen when we see a new way of living. Thinking to save the world.
  • COMING TO TUCSON?
    Popular vacation house, furnished, 2 bed/1 bath, yard, dog-friendly. Lee at [email protected] or 520-791-9246.
  • OJO CALIENTE COMMERCIAL VENTURE
    Outstanding location near the world famous Ojo Caliente Mineral Spring Resort. Classic adobe Mercantile complete w/living quarters, separate 6 unit B&B, metal building and spacious...