Levels of environmental degradation

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As we face unprecedented levels of environmental degradation on the world, we cannot help to exam it affects on biodiversity. A key effort in the United States to help reverse this trend effecting biodiversity is the Endangered Species Act (ESA). In 1973, the Endangered Species Act was adopted to provide for the conservation of ecosystems upon which "threatened and endangered"[1] species of fish, wildlife, and plants. The Interior Department's Fish and Wildlife Service (FWS) and Commerce Department's National Oceanic and Atmospheric Administration (NOAA)- Fisheries, depending on the species, administer the law. Though, this Act has help in counterbalancing the major effect on species, its true power lies in the enforcement of its provisions. One of the act's key provisions, which provide authority to acquire land for the conservation of listed species, has also been one of the act's most ambiguous and controversial provisions.

According to the ESA, once a species is proposed for listing as endangered or threatened FWS or NOAA Fishers must determine if there are areas of habitat that are critical to the species conservation, as know as critical habitat designation. A critical habitat designation may require special management and protection and may include an area that is not currently occupied by the species but that will be essential for its recovery.

Endangered species and their critical habitats receive extremely strong protection; it is illegal to take any endangered species of animal (or plant in some circumstances) in the United States, its territorial waters, or the high seas. In addition to this direct prohibition, Section 7 of the act prohibits any federal action that will jeopardize the future of any endangered species, including any threat to designated critical habitat. The act also requires the secretaries of interior and commerce to use programs in their agencies to support the goals of the act and requires other agencies to "utilize their authorities in furtherance of the purposes of [the act] by carrying out programs for the conservation of endangered species and threatened species."

The strength of the ESA lies with its stringent mandates constraining the actions of private parties and public agencies. Once a species is listed as threatened or endangered, it becomes entitled to shelter under the act's protective umbrella, a far-reaching array of provisions. Critical habitat must be designated "to the maximum extent prudent and determinable" and recovery plans, designed to bring the species to the point where it no longer needs the act's protections, are required if they will promote the conservation of the species. Funds for habitat acquisition and cooperative state programs are authorized. Federal agencies must ensure that their actions are not likely to jeopardize the survival of listed species nor adversely modify their critical habitats. Agencies are also required to use their authorities to promote endangered species conservation.

In addition to the Section 7 prohibition of any federal action that is likely to jeopardize an endangered species or adversely modify or destroy its critical habitat, Section 9 prohibits the taking of an endangered species of fish or wildlife (or, by regulation, of threatened species). Sections 7 and 9 are major sources of the act's power as well as numerous controversies. In particular, the prohibition against taking endangered species has raised concerns among private landowners because of its application to habitat: taking is fairly broadly defined in the ESA and even more broadly in some regulations.

The provisions of the act regarding critical habitat have proven to be among its most controversial aspects. The government has resisted the act's requirement to designate critical habitat, due to a stated view that the act's prohibitions against taking triggered by the listing decision are the primary mechanism providing relief to listed species. Indeed, environmental groups (most prominently the Center for Biological Diversity) frequently sue the Fish & Wildlife Service to compel it to designate critical habitat as required by the act. Private property owners, fearing that inclusion of their land in areas of critical habitat will lower its value, often protest the designation of critical habitat, complaining of high economic costs and stating skepticism about the biological benefit of designating critical habitat.

The Fish and Wildlife Service in the Department of the Interior and NOAA- Fisheries in the Department of Commerce share responsibility for administration of the Endangered Species Act.

Critical Habitat

Under the Endangered Species Act the FWS or NMFS must decide whether critical habitat should be designated for a listed species. Critical habitat is specific geographical areas of land, water, and/or air space that contain features essential for the conservation of a listed species and that may require special management and protection. For example, these could be areas used for breeding, resting, and feeding. If the agencies decide that critical habitat should be designated, a proposal notice is published in the Federal Register for public comment. If it is decided that critical habitat is needed, then the final boundaries are published in the Federal Register.

The role of critical habitat is often misunderstood by the public. Critical habitat designation does not set up a refuge or sanctuary for a species in which no development can take place. It can provide additional protection for a specific geographical area that might not occur without the designation. For example, if the FWS determines that an area not currently occupied by a species is needed for species recovery and designates that area as critical habitat, any federal actions involving that area have to avoid adverse modifications. Critical habitat designation has no regulatory impact on private landowners unless they wish to take actions on their land that involve federal funding or permits.

The original ESA did not provide a time limit for the setting of critical habitat. In 1978 the law was amended to require that critical habitat be designated at the same time a species is listed. However, the designation is only required "when prudent." For example, the Fish and Wildlife Service or National Marine Fisheries Service can refuse to designate critical habitat for a species if doing so would publicize the specific locations of organisms known to be targets for illegal hunting or collection. Historically the agencies have broadly used the "when prudent" clause to justify not setting critical habitat for many listed species. This has been a very contentious issue between the government and conservation groups.

As of February 23, 2006, critical habitat had been designated for 473 species. This represents just over onethird of all U.S. species listed under the ESA. Plants make up more than half of the listed species for which critical habitat has been designated.

Read more: The Endangered Species Act - Recovery Actions Under The Endangered Species Act http://www.libraryindex.com/pages/3031/Endangered-Species-Act-RECOVERY-ACTIONS-UNDER-ENDANGERED-SPECIES-ACT.html#ixzz0XLd5pcMo

Designation of critical habitat has also been a contentious issue. In 1997 the Natural Resources Defense Council sued the Department of the Interior (DOI) over the long-standing policy of the U.S. Fish and Wildlife Service to avoid designating critical habitat under the "when prudent" clause. At that time the agency had set critical habitat for only approximately 10% of all listed species. The FWS lost the lawsuit, as well as many subsequent suits in the same vein. In 2000 the agency put a one-year hold on all work related to listing new species so that court-ordered critical habitat work could be tackled.

In 2004 the Fish and Wildlife Service lost a case that focused on the agency's decision to ignore petitions submitted for species that are candidate species. The lawsuit specifically dealt with the Gunnison sage grouse, a large ground-dwelling bird found only in parts of Colorado and Utah. In January 2000 a coalition of conservationist groups submitted a petition to the FWS on behalf of the species. The FWS responded that no action was needed on its part, because it planned to designate the species as a candidate species. This decision was in keeping with the agency's long-standing "Petition Management Guidance." In September 2000 the petitioning groups sued the agency claiming that the Guidance violated the intent of the ESA. In 2004 the U.S. District Court for the District of Columbia ruled against the FWS and ordered the agency to respond to petitions that had been submitted for more than 200 candidate species.

Since the 1990s the Fish and Wildlife Service has repeatedly complained that many of its decisions and activities are driven by court orders, rather than scientific priorities. Conservation and animal groups have taken advantage of ESA provisions that allow citizen involvement in petition submittals and lawsuits. Critics claim that the groups flood the FWS with petitions so that lawsuits can be brought when the agency is unable to respond in a timely manner. Environmentalists counter that the lawsuits are necessary, because the FWS fails to do the job assigned to the agency under the Endangered Species Act to protect imperiled species.

Read more: The Endangered Species Act - Endangered Species Act Litigation http://www.libraryindex.com/pages/3032/Endangered-Species-Act-ENDANGERED-SPECIES-ACT-LITIGATION.html#ixzz0XLeUbPPZ

Interior Secretary Ken Salazar, Kempthorne's successor, and Commerce Secretary Gary Locke said in a joint statement that scientific evidence justified restoring the independent reviews that Fish and Wildlife and NOAA had conducted for decades.

The Obama administration announced yesterday a freeze on publication of all proposed and final rules in the Federal Register until they are reviewed by an agency or department head appointed by the new administration. Many of the midnight regulations, such as changes to the rules implementing the Endangered Species Act

As previously mentioned, in December of 2008, the Bush Administration made 11th hour changes to the Endangered Species Act implementing a rule that exempted many federal actions from Section 7, Consultations. This rule even went as far as exempting agencies with activities that generate greenhouse gases or emit toxic chemicals. In an effort to undo the last minute changes, in March, President Obama issued a memo temporarily rescinding the Bush-era rule that weakened the Endangered Species Act. In his memo, President Obama issued the newly appointed Secretaries of the Interior and Commerce a 60-day review of the regulation issued on December 16, 2008, to determine whether to undertake new rulemaking procedures. During the latter part of April, Secretary of Commerce Gary Locke and Secretary of the Interior Ken Salazar announced that the two departments would revoke the Bush-rule. Their decision required federal agencies remain consultations with federal wildlife experts at the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration -- the two agencies that administer the ESA -- before taking any action that may affect threatened or endangered species.

final rule (Section 7 Rule) in the Federal Register that makes significant changes to certain provisions of the consultation requirements under Section 7 of the Federal Endangered Species Act (ESA).1 In one of the final actions of the Bush Administration's environmental agenda, these actions set the stage for the Obama Administration to wrestle with the scope of the ESA, and in particular, the interplay of climate change and its impact on endangered species.

He said his memo would "help restore the scientific process to its rightful place at the heart of the Endangered Species Act." (The full memo text is below; paragraphs added.) More undoing of last-minute changes by the previous administration.

The White House, March 3, 2009

The Obama Administration has revoked a Bush-era rule that allowed government agencies to decide on their own whether a project would harm an endangered plant or animal without consulting the Fish and Wildlife Service or the National Oceanic and Atmospheric Administration (NOAA). President Obama called for a review of the rule last month, and his administration has determined that scientific evidence justified restoring the independent reviews that had previously been conducted by the Fish and Wildlife Service and the NOAA.

"By rolling back this 11th hour regulation, we are ensuring that threatened and endangered species continue to receive the full protection of the law," said Interior Secretary Ken Salazar, whose department oversees Fish and Wildlife. Commerce Secretary Gary Locke, whose department oversees NOAA, added that "our decision affirms the administration's commitment to using sound science to promote conservation and protect the environment."

For more than twenty years, federal agencies were required to consult with experts at the Fish and Wildlife Service or the NOAA to ensure that their activities did not harm endangered plants or animals. In the final weeks of his presidency, George W. Bush made the consultations optional. Business and industry groups argue that the consultation process delays projects and increases costs. Environmentalists welcome the change, but say the administration needs to do more to lift a rule that limits the protection of polar bears.

Alaska Sea Otters Granted Critical Habitat Protection

ANCHORAGE, Alaska, October 8, 2009 (ENS) - It took a court order to accomplish, but threatened sea otters in southwest Alaska now will have some respite from the pressure of human activities.

The U.S. Fish and Wildlife Service Wednesday designated 5,855 square miles of nearshore waters along the Aleutian Islands, Bering Sea, and Alaska Peninsula as critical habitat for the northern sea otter, Enhydra lutris kenyoni.

The Service does not anticipate that this critical habitat designation will result in any closure of commercial fishing in southwest Alaska because sea otters eat bottom-dwelling creatures of no commercial value and spend most of their time in shallow water close to the shore,

The agency took this action under a court order resulting from a lawsuit against the Service by the Center for Biological Diversity.

"Critical habitat has a proven record of aiding the recovery of endangered species," said Rebecca Noblin, a staff attorney with the Center in Anchorage. "We are pleased that habitat for threatened Alaska sea otters will finally be protected. With the habitat protections of the Endangered Species Act now extended to sea otters in Alaska, this iconic species has a fighting chance of recovery."

The Center first petitioned the Fish and Wildlife Service to protect sea otters in southwest Alaska under the Endangered Species Act in August 2000.

Two lawsuits and five years later, sea otters in this region received protections provided by the law, following population declines of up to 90 percent in many areas.

Fewer than 40,000 otters were estimated to exist in southwestern Alaska in 2005, down from more than 100,000 in the 1970s. Declines are most pronounced in the Aleutian Islands, where the population has dropped from more than 70,000 to fewer than 10,000 animals.

The exact cause of the decline is unknown, but scientists have speculated that increased predation by killer whales may be a factor. Sea otters in the area are also threatened by proposals to open Bristol Bay in the Bering Sea to oil development, along with changes to the ecosystem brought about by global warming and overfishing.

The Endangered Species Act requires that critical habitat be designated when a species is listed. Congress has emphasized the importance of critical habitat, stating that "the ultimate effectiveness of the Endangered Species Act will depend on the designation of critical habitat."

But the Bush-era Fish and Wildlife Service took the attitude that critical habitat designations were a hindrance that did not benefit listed species.

In all critical habitat press releases during the Bush administration, the Fish and Wildlife Service wrote, "In 30 years of implementing the Endangered Species Act, the Service has found that the designation of critical habitat provides little additional protection to most listed species, while preventing the Service from using scarce conservation resources for activities with greater conservation benefits. In almost all cases, recovery of listed species will come through voluntary cooperative partnerships, not regulatory measures such as critical habitat."

Under the Obama administration, the Service has not been using that language.

Recognizing that the Bush administration would designate critical habitat only as a result of litigation, in December 2006 the Center filed a lawsuit in federal district court in Washington, DC, seeking critical habitat for Alaska's sea otters.

In April 2007 the Center reached an agreement with the Fish and Wildlife Service, which provided that critical habitat for the otter had to be finalized by October 2009.

Wednesday's habitat designation includes all nearshore waters in the current range of the southwest Alaska population of the sea otter within 100 meters of mean high tide, waters less than two meters in depth, and kelp forests in waters less than 20 meters deep.

In total, the areas making up the otter's critical habitat equate to 5,855 square miles. While the designation includes critical areas for the sea otter, it falls short, the Center says, because it fails to protect deeper waters and areas further from shore that the otter also needs to recover.

The Interior Department has proposed opening up areas in the Bering Sea near Bristol Bay to offshore oil and gas development, but such development would be devastating for sea otters, Noblin warns.

Because they rely on their fur as insulation against the cold, sea otters are extremely vulnerable to oil spills. As many as 1,000 sea otters died from the Exxon Valdez oil spill in 1989. More recently, the Selendang Ayu oil spill in the Aleutian Islands in December 2004 killed numerous animals in this vulnerable sea otter population.

"While today's habitat designation is an important step in preventing the extinction of sea otters in southwest Alaska," said Noblin, "we still must do much more to ensure their eventual recovery, including protecting offshore habitat and eliminating the threat of oil development in Bristol Bay."

The worldwide sea otter population was reduced to just a few hundred animals between 1742 and 1911, due to commercial harvest by the Russian and Russian-American fur trade.

Three populations of sea otters exist in Alaska today, but only the southwest Alaska population is listed as threatened. The Service estimates the statewide population at around 70,000 animals.

Worldwide, the authoritative IUCN Red List of Threatened Species lists sea otters as Endangered, on a downward trend.

Obama Administration Adopts Bush's Polar Bear

Extinction Plan As Its Own

http://www.biologicaldiversity.org/news/press_releases/2009/esa-regulations-05-08-2009.html

WASHINGTON, D.C.- Secretary of the Interior Ken Salazar announced today that he will not rescind a "special rule" created by the Bush administration that sharply limits protections for the polar bear under the Endangered Species Act.

"For Salazar to adopt Bush's polar bear extinction plan is confirming the worst fears of his tenure as Secretary of the Interior," said Noah Greenwald, biodiversity program director at the Center for Biological Diversity. "Secretary Salazar would apparently prefer to please Sarah Palin than to protect polar bears."

Congress passed legislation on March 10 giving Secretary Salazar power until May 9 to rescind with the stroke of a pen both the special rule for the polar bear and a rule that exempted thousands of federal activities, including those that generate greenhouse gas emissions, from review by expert scientists in the U.S. Fish and Wildlife and National Marine Fisheries services. This latter "consultation" rule was revoked by the Obama administration last week, but Secretary Salazar has stated he will allow Bush's rule eliminating protections for polar bears to stand.

"It makes little sense for Salazar to rescind Bush's national policy barring consideration of global warming impacts to endangered species in general, but keep that exact policy in place for the one species most endangered by global warming - the polar bear," said Greenwald.

Salazar ignored strong criticism of the rule and requests to revoke it from more than 1,300 scientists, more than 50 prominent legal experts, dozens of lawmakers, more than 130 conservation organizations and hundreds of thousands of members of the public.

The rule severely undermines protection for the polar bear by exempting all activities that occur outside of the polar bears range from review. The polar bear, however, is endangered precisely because of activities occurring outside the Arctic, namely emission of greenhouse gases and resulting warming that is leading to the rapid disappearance of summer sea ice.

"As part of comprehensive efforts to address greenhouse gas emissions, we should take measures to ensure that we're not unduly harming polar bears and other species threatened by climate change," said Greenwald. "With its sea-ice habitat rapidly disappearing, the polar bear needs the full protection of the Endangered Species Act."

The special rule also reduces the protections the bear would otherwise receive in Alaska from oil industry activities in its habitat.

"Salazar's decision today is a gift to Big Oil and an affirmation of the pro-industry/ anti-environmental policies of the Bush administration," said Greenwald. "This is not the change Obama promised."

The Center for Biological Diversity and other organizations are challenging the polar bear special rule in court. Oil-industry organizations, trade associations representing the nation's largest polluters, and Sarah Palin have intervened in the court case to help Secretary Salazar defend Bush's extinction rule.

Addressing greenhouse gas emissions under the Endangered Species Act is no different than addressing any other pollutants that have been effectively addressed under the Act for years, such as DDT and other pesticides that had severe impacts to the bald eagle and other species.

The Obama administration announced yesterday a freeze on publication of all proposed and final rules in the Federal Register until they are reviewed by an agency or department head appointed by the new administration. Many of the midnight regulations, such as changes to the rules implementing the Endangered Species Act

Endangered species: An animal or plant species in danger of extinction throughout all or a significant portion of its range. Threatened species: An animal or plant species likely to become endangered within the foreseeable future throughout all or a significant portion of its range. (Fisheries and Wildlife Service Endangered Species Act Glossary http://www.fws.gov/Endangered/glossary.html)

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