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Environmental Law

: ESA Blawg

ESA in the news: bad for Bush, but good for Obama? Don't touch eagle feathers, but shoot the wolves? EPA consults, but not FEMA?

By Keith Rizzardi

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"The Obama administration is moving to accelerate Endangered Species Act," says the New York Times, and the administration will be embracing an ecosystem approach, allowing for decisions on multiple species all at once. This sensible and science-based approach is expected to dramatically reduce the backlog in ESA listing and critical habitat decisions. Ironically, as previously noted here on ESAblawg, that same approach was ridiculed when used by the Bush Administration for a critical habitat decision in Hawaii. The Obama Administration is using other creative tools to implement the ESA, too. For example, the California Rangeland Conservation Coalition, the U.S. Fish and Wildlife Service and the California Department of Fish and Game proposed a Programmatic Safe Harbor Agreement, covering the management of 20 different species in private rangelands in the northern Sacramento Valley and Tehama County. See Contra Costa Times or Federal Register Notice.

But creativity will not save the black footed ferrets in Colorado, because FWS says they have been extirpated, and as a result, landowners will no longer be required to conduct surveys for the species. “The last black-footed ferret known to live in the wild in Colorado died more than 50 years ago,” says The Pueblo Chieftan. Photo above of a black-footed ferret from Wind Cave National Park in South Dakota. Bald eagles, however, are doing far better than the Colorado ferrets, says the New York Times, noting the recent FWS rules allowing incidental take of the species. But even without an ESA listing, possession of eagle feathers remains a crime, reminds the Legal News Examiner, citing a recent Arizona prosecution. Yet in the sometimes-upsidedown world of ESA implementation, possession of eagle feathers is a crime in Arizona, while shooting listed wolves is legal -- for the moment -- in the Rockies. See New York Times story. So which is it? List 'em or shoot 'em? Wyoming residents say both! Shooting endangered species can encourage support for conservation from hunting enthusiasts, and the Wyoming Trib.com quotes numerous groups supporting the notion that FWS should list the sage grouse, while simultaneously allowing hunting.

Of course, if the sage grouse does get listed in Wyoming, the real controversies will then begin when the consultation provisions of the ESA kick in, as they did in the Pacific Northwest, where battles over EPA's failure to consult on the impacts of pesticides led to numerous lawsuits. Last week, after finally consulting with NOAA, the U.S. EPA has announced plans to place additional limitations on the use of three organophosphate pesticides — chlorpyrifos, diazinon and malathion — to protect endangered and threatened salmon and steelhead in California, Idaho, Oregon and Washington. According to the EPA statement, "EPA is requesting the manufacturers to voluntarily adopt the new limitations on labeling for these pesticides. If the manufacturers decline this request, EPA will pursue regulatory action to impose the limitations." But environmentalists are still litigating with FEMA, because it has not consulted with the FWS on the effects of FEMA flood insurance programs on development of sensitive Arizona habitat. See Seattle Post Intelligencer.com.

All these mixed messages make my head hurt.

Full post as published by ESA Blawg on September 15, 2009 (boomark / email).