Dear ESA Colleagues, I am sharing this request with our community on behalf of the Center for Biological Diversity. They are seeking scientist signatures on a letter commenting on proposed changes to re-define destruction or adverse modification" of critical habitat as defined by the Endangered Species Act.
If you are interested in signing this letter please contact Lori Ann Burd directly at [email protected]. The deadline for contacting Lori is October 6th. Please do not reply to me. Thank you for your consideration of this request. Kim Landsbergen Ph.D. Associate Professor of Environmental Science Antioch College Yellow Springs, Ohio - - - - - - - - - Dear Colleague, I'm writing to invite you to sign on to the attached comment letter from scientists regarding a recent proposal from the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (Services) that undermines protection of habitat for endangered species across the country. One of the most important protections provided by the Endangered Species Act is the designation of critical habitat. This is because federal agencies are prohibited from allowing the "destruction or adverse modification" of designated critical habitat in all actions that they permit, fund or carry out. In response to several court orders, the Services have proposed to re-define destruction or adverse modification. Unfortunately, they have done so in a way that will continue to allow for the piecemeal destruction of critical habitat. The proposal does this by specifying that for an action to constitute adverse modification it must "appreciably diminish" the value of the entire critical habitat designation. This will allow federal agencies to ignore activities that harm smaller portions of critical habitat, resulting in substantial cumulative impacts and contributing to species being wiped out in death-by- a-thousand-cuts scenarios. Please let me know, no later than October 6, whether you would like to sign on. Please provide me with your name, relevant degree, title, and the name of the institution (if any) you work at. Also, attached is a story from E&E news that provides background on this issue. If you have any questions, please do not hesitate to contact me. For our endangered species, Lori Ann Burd Endangered Species Campaign Director Center for Biological Diversity 971-717-6405 www.biologicaldiversity.org - - - - - - Letter text is as follows - - - - - October 9, 2014 The Honorable Dan Ashe Director U.S. Fish and Wildlife Service 1849 C Street, NW Washington, DC 20240 The Honorable Kathryn Sullivan Administrator National Oceanic & Atmospheric Administration 1401 Constitution Avenue, NW Washington, DC 20230 Dear Administrator Sullivan and Director Ashe, We are writing to you regarding the Obama administrations recent proposal to change the regulatory definition of destruction or adverse modification of critical habitat under the Endangered Species Act (ESA). We believe that the proposal is an improvement over the current definition, which ignored the ESAs recovery mandate.1 However, one particular aspect of the proposal does not accurately represent or reflect the collective experience and scientific knowledge that has developed in the field of conservation biology. As a result, this proposal will likely fail to address and stem the main drivers of habitat loss in the United States: small, incremental impacts that cumulatively degrade the habitats and conservation status of endangered species.2 Under the ESA, all federal agencies must insure that their actions to do not destroy or adversely modify critical habitat, and must consult with U.S. Fish and Wildlife Service or National Marine Fisheries Service (Services) to determine if their actions comply with the ESA. The Services have proposed to define the term destruction or adverse modification of critical habitat as:  a direct or indirect alteration that appreciably diminishes the conservation value of critical habitat for listed species. Such alterations may include, but are not limited to, effects that preclude or significantly delay the development of physical or biological features that support the life- history needs of the species for recovery.3 This definition does recognize the vital role that critical habitat plays in the recovery of threatened and endangered species in the United States. Unfortunately, when evaluating the potential impacts of federal projects on listed species, the Services have included additional guidance in the proposal stating that a project appreciably diminishes critical habitat only when the conservation value of the entire critical habitat designation for a particular species is diminished. This approach to evaluating habitat impacts does not appear to be based on the best available science and conservation literature, and would likely lead to results where most of the small, but cumulatively significant, impacts to critical habitat go unaddressed. For example, in 2012 the Fish and Wildlife Service designated approximately 9.57 million acres of critical habitat for the northern spotted owl. In that decision, the Service stated that the determination of whether an action is likely to destroy or adversely modify critical habitat is made at the scale of the entire critical habitat network.4 It seems highly unlikely that any project, even if it destroyed 10,000 acres, would diminish the conservation value of the entire critical habitat network for the spotted owl. It would likely take hundreds or thousands of small impacts to spotted owl critical habitat for there to be an appreciable diminishment in the value of the critical habitat designation as a whole. As a result, many small harms to the spotted owl would potentially go unaddressed and unmitigated, even though they have cumulative importance. The literature supports our concerns that these types of impacts will not be fully addressed. In an analysis of nearly 4,000 biological opinions, Owens (2012) concluded that the Services have consistently treated small-scale habitat degradation as exempt from the adverse modification prohibition, even though no such exemption appears in the ESA itself.5 We are deeply concerned that the Services proposal to institutionalize this exemption will undermine the recovery of listed species. Without addressing these small harms using a modern, scientific approach, many endangered species will continue to decline. We believe that this deficiency in the Services proposal can be improved to address these small harms to critical habitat. The Services should evaluate adverse impacts to critical habitat at the most biologically relevant and appropriate geographic scale that is supported by the scientific literature with respect to each endangered species. For example, if a species has a recovery plan that identifies the geographic recovery units wherein conservation goals must be met to recover that species, then assessing critical habitat at the scale of the recovery unit would likely be appropriate. Or if a recovery plan requires the establishment of a certain number of populations or meta-populations to achieve recovery, impacts to habitat would be assessed at the population or meta-population level. Such an approach would reflect the ESAs mandate that all consultations under Section 7 be made solely on the best scientific information available for that species. This change is essential for an additional reason. While the Services have stated in this proposal that cumulative impacts to critical habitat will be addressed in consultations, the Government Accountability Office concluded in 2009 that the Fish and Wildlife Service did not have the capacity or ability to track cumulative impacts that are permitted in the consultation process.6 Without an ability to track cumulative take of species and cumulative impacts to species, the protective measures of the ESA will be less effective at recovering endangered species. Thus, we recommend that the Services develop a database for tracking cumulative impacts to allow the agencies to effectively monitor cumulative impacts, so that they can assess impacts both at the most relevant biological scale, and across the entire critical habitat designations. Until the Services can demonstrate their ability to track cumulative take and impacts to critical habitat across the range of the species, assessing impacts at a biologically relevant scale will make it possible for biologists to assess cumulative impacts, and will help to put more species on a path towards recovery. Thank you for your consideration of these recommendations. Sincerely, Barry Noon, PhD Professor Colorado State University Stuart Pimm, PhD Doris Duke Professor of Conservation Duke University John Vucetich, PhD Associate Professor Michigan Technological Univeristy Dominick DellaSalla, PhD President, Chief Scientist Geos Institute Reed Noss, PhD Professor University of Central Florida Andrew George, PhD Lecturer University of North Carolina Chapel Hill  1 The current regulatory threshold for destruction or adverse modification of critical habitat required that an action be likely to reduce both the survival and recovery of a listed species to violate the Endangered Species Act, meaning that federal actions that merely precluded the recovery of a species did not violate the law. Three federal courts held that this approach violated the Endangered Species Act. 2 See for example: Odum, W.E. 1982. Environmental Degradation and the Tyranny of Small Decisions, BioScience 32:728-729; Wilcove, D. S., et al. 1998. Quantifying Threats to Imperiled Species in the United States: Assessing the relative importance of habitat destruction, alien species, pollution, overexploitation, and disease, BioScience 48:607-615; Spaling H and Smit B.1993. Cumulative environmental change: conceptual frameworks, evaluation approaches, and institutional perspectives, Environmental Management 17:587-600; National Research Council, 1986. ECOLOGICAL KNOWLEDGE AND ENVIRONMENTAL PROBLEM-SOLVING: CONCEPTS AND CASE STUDIES, National Academy Press; 388 p; Trombulak, S.C. & C.A. Frissell. 2000 Review of ecological effects of roads on terrestrial and aquatic communities, Conservation biology 14:18-30; Swift, T.L & S.J. Hannon, 2010. Critical thresholds associated with habitat loss: a review of the concepts, evidence, and applications, Biological Reviews 85:35-53. 3 Definition of Destruction or Adverse Modification of Critical Habitat, 79 Fed. Reg. 27060, 27061 (May 12, 2014). 4 Designation of Revised Critical Habitat for the Northern Spotted Owl, 77 Fed. Reg. 71876, 71940 (Dec. 4, 2012). 5 Owens, D. 2012. Critical habitat and the challenge of regulating small harms. Florida Law Review 64:141- 199. 6 Government Accountability Office. 2009. THE U.S. FISH AND WILDLIFE SERVICE HAS INCOMPLETE INFORMATION ABOUT EFFECTS ON LISTED SPECIES FROM SECTION 7 CONSULTATIONS, Report #: GAO- 09-550.
