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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” 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 moreover, 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 areas were the species may not currently reside but is essential for its recovery (U.S. Fish and Wildlife Service, 2000). The decision to list the species rests on biological data and scientific analysis, while designation of critical habitat is based more on economic factors. In addition to the maintenance of the species, the ESA provides for the recovery of the species with the goal of eventually delisting. Currently in the U.S., there are 1320 listed species on the ESA list; however only 546 are designated with a critical habitat [Figure 1].
Summary of Listed Species and Critical Habitat Designation (as of Fri, 20 Nov 2009)
Endangered species and their critical habitats receive extremely strong protection; under the ESA, in particular Section 7 and Section 9. In addition to the required assessment for critical habitat for a species after listing, Section 7 of the ESA requires all Federal agencies, in consultation with FWS or NOAA Fisheries, to use their authorities to further the purpose of the ESA. Therefore, all federal agencies are to ensure that their actions, actions they fund or authorize are not likely to jeopardize the continued existence of listed species or result in destruction or adverse modification of critical habitat. The act also requires the Secretaries of the Department of the Interior and the Department of Commerce to use programs in their agencies to support the goals of the act and requires other agencies use program that aid in the conservation of the species. Interestingly enough, critical habitat designation has no effect on situations where a Federal agency is not involved – for example, a private landowner constructing a project on his land that does not involve Federal funding or a permit does not require consultation. Section 9 of the ESA, it is illegal to “take” any endangered species in the United States, its territorial waters, or the high seas. “Take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct which may include significant habitat modification or degradation if it kills or injures wildlife by significantly impairing essential behavioral patterns including breeding, feeding, or sheltering (U.S. Fish and Wildlife Service, 2000).
Since 1992, Congress has remained deadlocked over reauthorization of the Endangered Species Act (ESA) (Burdett & Millen, 2006). Since then, there have been numerous bills proposed and executive order signed; however, none has adequately addressed the major issues with the ESA. The most divisive of these issues is critical habitat designation. Since the beginning of the ESA, critical habitat designation has been a contentious issue. One most famous critical habitat designation cases was the Tellico Dam, which was begun before the ESA was enacted in 1973. The dam project came to a halt when the Secretary of the Interior declared a small fish called the snail darter to be endangered. Originally, its habitat was limited to the part of the Little Tennessee River that was to be flooded by the reservoir behind the dam. The case reached the Supreme Court, which concluded that the ESA required it to stop construction of the dam, even though $53 million had already been spent (Tennesse Valley Authority v. Hill, 1978). However, the Energy and Water Development Appropriations Act for fiscal year 1980 exempted the Tellico Dam from the Endangered Species Act and authorized completion of the project despite the threat to the snail darter (Albrecht & Christman, 1999). This paper will examine the controversies and changes in the ESA and critical habitat designation since 1992 under the Clinton and G. W. Bush Administration and its' future under President Obama. Under each administration, we will examine key issues and case studies during their time in office that were instrumental in establishing their position on the ESA and critical habitat designation. With less than a year in office, we will analyze President Obama's current stance on the ESA and critical habitat designation and forecast future actions to reform the act and its controversies.
Obama Administration (2009-Present)
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 charged the newly appointed Secretaries of the Interior and Commerce to review the regulation issued on December 16, 2008, to determine whether to undertake new rulemaking procedures with respect to consultative and concurrence processes that will promote the purposes of the ESA (Presidential Document 74 Fed Reg 43, 2009). 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 continue consultations with federal wildlife experts at the FWS and NNOA Fishers before taking any action that may affect threatened or endangered species. Both secretaries shared the same commitment to using sound science to promote conservation and protect the environment and plan to conduct a joint review of the 1986 consultation regulations to determine if any improvements should be proposed (U.S. Department of the Interior, 2009).
With only a few months The Obama Administration, quick and decisive action to revoke this Bush-era rule immediately established a stance on the Endangered Species Act. The Obama administration freeze on publication of all Bush-Era proposed and final rules in the Federal Register until reviewed by his appointed agency or department head quickly establish a his stance on numerous environmental issues. Nevertheless, the Bush Administration actions set the stage for the Obama Administration to wrestle with the scope of the ESA, and in particular, critical habitat and the interplay of climate change and its impact on endangered species. Over the past 11 month, the Obama Administration has attempted to set itself apart by making changes to numerous contentious issues from the Bush Administration; however, the administration still has not been able to escape the controversies that surround the ESA and critical habitat designation.
Since January 2009, twenty-one critical habitats have been designated for endangered and threatened species. While a few designations were implemented from pending Bush-Era litigation like the Alaska Sea Otter, several critical habitat designations were improved and initiated from changes made by the Obama Administration. One major case that the Obama Administration quickly pulled the strings on was the controversial Northern Spotted Owl. This case was one of the 20 cases review by the Inspector General, under Julie MacDonald tenure. The case of Northern Spotted Owl dates back to Clinton's first term and still is a major topic of discussion in the Obama's Administration. The 1990 listing of the northern spotted owl as endangered, with the result that millions of acres of Pacific Northwest forests became protected habitat (Robertson v. Seattle Audubon Society, 503 U.S. 429, 1992). The timber industry was alarmed at the loss of millions of acres of timberlands, labor unions worried about the loss of jobs, and homebuilding and real estate interests argued that there would be even wider economic harm. President Bush, campaigning for his second term as President, said "[i]t is time to make people more important than owls.” (Chasan, 2009) In another midnight regulation on the last day of his presidency, Bush pushed through his Western Oregon Plan Revision, which would have nearly quadrupled current logging on public lands in western Oregon, including crucial northern spotted owl habitat. However, the Obama administration cancelled this rule saving 23 percent of 1.6 million acres designated as critical habitat for the northern spotted owl.
In another attempt to set itself apart for the previous administration, the FWS has withdrawn its normal language used for its critical habitat press releases under the Bush Administration. In all Bush Administration's press releases the following words were include included:
"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." (Environmental News Service, 2009)
Despite its efforts, the Obama Administration actions are still receiving harsh criticism from environmentalist and conservationist. With only listing two species within the 11 months, the Obama Administration's highly praised actions toward the ESA are quickly being forgotten. The Director of Endangered Species at the Center for Biological Diversity states, “… the Obama administration has not substantially improved the dismal record of the Bush administration in providing protection to the nation's critically endangered wildlife. Protection of only two species in 10 months reflects a failure to enact substantial reforms in the U.S. Fish and Wildlife Service.” (Center for Biological Diversity, 2009) During its eight-year tenure, the Bush administration protected a mere 62 species – a rate of fewer than eight species per year. This compares to 522 species protected under the Clinton administration, at an average rate of 65 per year, and 231 species protected under the George H. W. Bush administration, for an average rate of 58 per year. (Center for Biological Diversity, 2009) With only two species listed so far, at this point the Obama administration seems to be more talk than action.
When President Obama rescinded the Bush-Era change on the Section 7 Consultation Rule, most environmentalists were optimistic about the administrations' rejection of another ESA rule promulgated by the Bush Administration, governing protections for the polar bear (the “polar bear 4(d) rule”). When the polar bear was listed as a threatened species on May 15, 2008, FWS used their power to enact special rules under Section 4(d) of the ESA which allowed tailored regulatory prohibitions for threatened species as deemed necessary and advisable to provide for the conservation of the species (U.S. Department of the Interior, 2009). The key issue in this “special” 4(d) rule provides that incidental take of polar bears resulting from activities outside the bear's current range is not prohibited under the ESA. Which translate to environmentalist cannot use the ESA to protect polar bears from activities taking place outside its habitat, such as the emission of greenhouse gases. Almost a year to the date, the Obama Administration made one of its most controversial moves yet, turning environmental groups' optimism to revulsion when the Secretary Salazar announced that retain the Bush-Era Rule.
Despite the strong criticism from more than 1,300 scientists, 50 prominent legal experts, dozens of lawmakers, 130 conservation organizations and hundreds of thousands of members of the public, the Obama Administration upheld the Bush's conservation rule for polar bears. Had the special rule to the polar bear conservation plan not been introduced, it may have been possible for environmental groups to sue organizations polluting the atmosphere with carbon dioxide, on the basis that they were contributing to global warming that was in turn thawing out the polar bears' Arctic habitat (Bradbury, 2009). In his announcement, Secretary Salazar acknowledged that climate change impacts associated with global emissions of greenhouse gases are impacting the polar bear and other species but explained that the ESA was meant to deal with local threats to species, not global ones (Walsh, 2009). The Department argues that it would be impossible to directly link the emission of greenhouse gases from a specific power plant, etc. to effects on specific bears or bear populations. “This direct “connect the dots” standard is required under the Act and court rulings. Therefore, the FWS's policy guidance is not to require such consultations” (U.S. Department of the Interior, 2009). Notwithstanding, the Obama Administration decision to adopt Bush rule, FWS did proposed designating more than 200,000 square miles of land, sea and ice along the northern coast of Alaska as critical habitat for the polar bear which is the largest single designation of protected habitat for any species (U.S. Fish and Wildlife Service, 2009) [Figure 2]
Department of Interior U.S. Fish and Wildlife Proposed Critical Habitat for Polar Bear
Source: The New York Times (http://www.nytimes.com/imagepages/2009/10/23/us/23bear_map.html)
Looking ahead, the Obama Administration still has time to establish its stance on the ESA and Critical Habitat Designation. The administration's actions over the last 10 months will set the stage for the upcoming years. Compared to previous administrations, the Obama administration appears to be taking a new approach to critical habitat thorough its actions and language. Even though his recent decision to adopt the Bush-Era polar bear rule brought wide spread criticism, environmentalist agrees with the administration that a comprehensive approach is needed in order to protect the polar bear and other species that are impacted by climate change.This is reiterated in NOAA's recent decision to deny protection for Arctic Seal threatened by global warming (Center for Biological Diversity, 2009).
The Obama Administration claims that they are limited in their actions due to litigation on species and a lack of funds for listings. FWS and Fisheries promise to dramatically pick up the pace next year and has already laid the groundwork for some new listings. The Center of Biological Diversity admits the Obama administration has taken a different approach to some of the legal complaints being more willing to settle lawsuits over listing deadlines and designations of critical habitat. FWS has proposed new protections for 6 domestic species and 14 foreign bird species in the past year and now have funds to protect 61 domestic species from the candidate list next year. In addition to get goal for 2010, the Obama Administration intends to fund listing determinations for 60 species and final listings for another 50 species (Winter, 2009).
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Walsh, B. (2009, 05 08). Obama Agrees with Bush on Polar Bears. Retrieved 11 24, 2009, from Time: http://www.time.com/time/health/article/0,8599,1897080,00.html
Winter, A. (2009, 11 24). New Endangered Species Listings Wait as Obama Admin Charts New Course. Retrieved 11 27, 2009, from New York Times: http://www.nytimes.com/gwire/2009/11/24/24greenwire-new-endangered-species-listings-wait-as-obama-25085.html?pagewanted=1
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)
 Alaska Sea Otters Granted Critical Habitat Protection: Recognizing that the Bush administration would designate critical habitat only as a result of litigation, in December 2006 the Center of Biological Diversity 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. http://www.ens-newswire.com/ens/oct2009/2009-10-08-094.asp