Subject: SW BIODIVERSITY ALERT #82
SOUTHWEST BIODIVERSITY ALERT #82
SOUTHWEST CENTER FOR BIOLOGICAL DIVERSITY
silver city, tucson, phoenix, san diego
1. FOREST SUPERVISOR OVERRULES DECISION TO REDUCE OLD GROWTH CUTTING
2. POLITICIANS, LUNATICS AND NEWSPAPERS WEIGH IN ON N.A.F.T.A.
STUDY OF SAN PEDRO RIVER
3. COMMENTS NEEDED ON CLINTON PROPOSAL TO WEAKEN E.S.A.
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FOREST SUPERVISOR OVERRULES DECISION TO REDUCE OLD GROWTH CUTTING
Following required appeal negotiation sessionS with the Southwest
Center for Biological Diversity, the District Ranger of Chevelon/
Heber district recommended that the Apache- Sitgreaves National
Forest decrease logging of old growth pinyon and juniper on the
Sundown timber sale. The Forest Supervisor, however, has rejected
the ranger's recommendation, ordering her to proceed with the sale
Though the Center did not agree to drop its appeal, the
recommended decrease would have reduced logging from 18,000
acres to 3,000 acres, the project time span from 50 years to
five years, and would have eliminated all logging that would
convert old growth to younger forests.
Please write Apache-Sitgreaves Forest Supervisor, John Bedell,
tell him that no old growth should be logged on the Sundown timber
Apache-Sitgreaves National Forest, P.O.B. 640, Springerville,
_____ _____ _____ _____ _____
POLITICIANS, LUNATICS AND NEWSPAPERS WEIGH IN ON N.A.F.T.A.
STUDY OF SAN PEDRO RIVER
NAFTA's Commission on Environmental Cooperation (CEC) has
agreed to a formal petition by the Southwest Center to prepare
a report on the status of the San Pedro river. The San Pedro is
the last major undammed river in the Southwest. If flows
northward from Mexico into the Gila River in southern Arizona
and is home to over 400 species. Congress designated 45 miles
of the river as the nation's first National Riparian Conservation
Area but failed to secure water rights. The river and conservation
area are drying up due to overpumping by the Army's Fort Huachuca
and development around Sierra Vista.
Arizona Governor Fife Symington wrote a letter to the CEC
urging them to withdraw their support because "the Southwest
Center for Biological Diversity is well known for its radical
views.'' He likened the petition to "an environmental drive-by
The Arizona Daily Star opined that the study "bodes well for
both the valley...the troubled San Pedro watershed needs all
the objective study it can get...As aquifer pumping and
population growth associated with the U.S. Army's Fort
Huachuca near Sierra Vista continue, a clear picture of how
such trends connect to diminishing flows of the precious San
Pedro, one of the last free-flowing river in the Southwest,
remains a vital prologue to problem-solving."
AZ Senator John McCain supports the study, but only if it
includes the Mexican side of the river as well and does not
focus solely on the adverse impacts of Fort Huachuca.. AZ
Representative Jim Kolbe warned that the study could lead to
Fort Huachuca being closed in the next round of military base
closure negotiations. AZ Senator Jon Kyl, downplayed the
study, saying that suits by the Southwest Center are a greater
threat to Fort Huachuca.
State Representatives, meanwhile, warned that the U.N. is
building up a military force just south of the border in
preparation for an "environmental" invasion of the U.S.
_____ _____ ______ _____ _____
COMMENTS NEEDED ON CLINTON PROPOSAL TO ADMINISTRATIVELY WEAKEN
This alert is lengthy because it contains background information,
talking points, a sample letter, and a list of additional resources
for your convenience.
BACKGROUND. On August 11, 1994, the U.S. Fish and Wildlife Service
(FWS) and National Marine Fisheries Service (NMFS) (collectively
referred to as the Services) jointly issued a new policy entitled
"No Surprises: Assuring Certainty For Private Landowners In Endangered
Species Act Habitat Conservation Planning"(the "No Surprises" Policy).
This policy was made effective immediately and was adopted without any
advance opportunity for input by the public.
On October 31, 1996, the Spirit of the Sage Council, Southwest Center
for Biological Diversity, Biodiversity Legal Foundation, and other
conservation organizations and activists filed a lawsuit against the
Services for violation of the Endangered Species Act (ESA) and
Administrative Procedure Act. As part of the settlement agreement
between the parties, the Services agreed to issue the policy as a proposed
rule for public notice and comment. On May 28, 1997, the Services issued
a Federal Register notice announcing their proposed "No Surprises" rule
and inviting comments from the public on the rule. (60 Fed. Reg. 29091).
On June 12, 1997, the Services published their Draft Candidate Conservation
Agreement (CCA) policy which uses voluntary agreements between the Services
and private landowners to preclude listing species as threatened or
endangered and extends the "No Surprises" rule to include species not yet
listed as threatened or endangered. (62 Fed. Reg 32183).
What Will the "No Surprises" Rule and CCA Policy Do?
The proposed "No Surprises" rule significantly changes how Habitat
Conservation Plans (HCPs) must address the instances in which unforeseen
circumstances arise after these plans have been finalized. HCPs must be
approved before the Services issue a permit to a private party that would
allow the party to "take" (kill, harm, harass, or adversely modify habitat)
listed species, provided that the "take" is incidental to otherwise lawful
activity. HCPs set forth the measures that permittees must take to mitigate
the adverse effects of their projects. Under the "No Surprises" policy, an
HCP cannot be altered to increase protection for declining populations of
species or newly listed species except under "extraordinary circumstances"
and only with the voluntary approval of the private land owner if the
changes require additional payments and development limitations. If
additional steps must be taken to save a species in trouble, taxpayers get
stuck with the bill.
A CCA is essentially an HCP for a landowner (or state or local government)
who does not yet have a listed species on his property. In particular, the
Services will enter into a CCA if they find that activities carried out by
the property owner or agency, if conducted by other property owners or
agencies throughout the range of the affected species, would be expected to
adequately remove threats to the species to eliminate the need to list. The
Services will provided assurances to landowners that no additional
management actions would be required of the property owner or State or local
land management agency above what is set forth in the agreement. Like the
"No Surprises" rule for HCPs, the Services will bear the burden of finding a
way to implement any additional needed conservation measures.
Why Are Your Comments Needed?
According to a 1994 report by the General Accounting Office, over 90 percent
of endangered species reside in habitat on non-federal lands. Nearly
three-quarters of endangered species have more than 60 percent of their
habitat on non-federal lands while 37 percent are wholly dependent on
non-federal habitat for their survival and recovery. Currently, over 400
HCPs have either been approved or are currently being developed. In
addition, voluntary CCAs are being used more and more as a means of avoiding
listing threatened and endangered species, including the Pacific and
Atlantic Salmon. It is critical that those who care about saving species
make their voices heard. Your comments are needed on both the proposed "No
Surprises" rule and the Draft CCA to let the Services know why this rule and
policy, as written, will undermine the goals of the ESA. In addition, the
comment period will give the public an opportunity to raise awareness about
this issue during the ESA reauthorization period, which is especially
important since a draft ESA bill by Senators Dirk Kempthorne (R-ID) and John
Chafee (R-RI) includes the proposed "No Surprises" rule and draft Candidate
Conservation policy. It is also important to raise these issues during the
reauthorization process because conservationists are currently working on
drafting a bill which will correct the significant problems with current
What You Can Do
Please draft your own comments and encourage as many individuals and
groups as possible, especially scientists, to send in their comments urging
the Services to abandon the "No Surprises" rule and CCA in their present
form. Below is a sample comment letter for your convenience. Comments
should be received by the Services no later than July 28, 1997. Send
comments to: LaVerne Smith, Chief, Division of Endangered Species, U.S.
Fish and Wildlife Service, 452 ARLSQ, Washington, D.C. 20240. (Telephone:
(703) 358-2171; FAX: (703) 358-1735) AND Nancy Chu, Chief, Endangered
Species Division, National Marine Fisheries Service, Office of Protected
Resources, 1315 East-West Highway, Silver Spring, MD 20910 (Phone: (301)
713-1401). Since this comment period is also important to the ESA
reauthorization process, please send a copy of your letter to your
Representative and Senators.
Talking Points On "No Surprises" And The CCA Policy
1.) The policies close the door on new information when life is full of
surprises. How can the Services assure that all species affected by
HCPs will survive and recover under the terms of an HCP during the permit
period, especially since many recent HCPs have included tens to hundreds
of species and last up to 100 years? For example, the FWS has approved
the Orange County Natural Communities and Conservation Plan and HCP,
which is a 75-year permit for construction, infrastructure development,
grazing, mining and recreation. This HCP applies to 208,713 acres, of which
approximately 78% are open to development, and purports to adequately
protect 47 species, including 7 listed species. Another recently approved
HCP is the Plum Creek HCP in Washington which covers approximately 170,000
acres, claims to adequately ensure the continued survival and recovery of
285 species, including 107 pairs of Northern spotted owl, wolves, and grizzly
bears, and is scheduled to last between 50 and 100 years. It is extremely
unlikely that biological, social, and political conditions will remain the
same over the duration of these plans.
Indeed, over 160 scientists expressed this very concern in a July 22,
1996, letter to Senator John Chafee and Congressman James Saxton, in which
they stated that "uncertainty, dynamics, and flux" are the "best descriptors
of ecological systems." Some of the sources of uncertainty include fire,
disease, storms that alter habitat structure, losses or changes of genetic
structure in small populations that affect their ability to adapt to changes
in the future, and insufficient knowledge. Finally, we only have to look as
far as the Clearcut timber rider -- which suspended environmental laws in our
National Forests, closed the courts to citizens, and sacrificed our natural
heritage -- to find political uncertainty that affects our endangered and
threatened species. As a result of that rider, HCPs that had been developed
assuming full protection of species habitat within President Clinton's
Northwest Forest Plan were suddenly faced with changes that may affect
the status of a species covered by an HCP. Even the FWS has acknowledged
that the rider has thrown these plans "out of balance," requiring additional
mitigation measures under those plans.
2.) They perpetuate plans and agreements that do not contribute to
recovery of threatened and endangered species. Assurances should not
given to by the Services unless the plan or agreement is consistent
with a species' recovery and not just its survival. Currently, the
Services interpret HCPs to require that they do not interfere with the
survival of threatened and endangered species. HCPs do not have to
contribute to the recovery of listed species. In addition, even HCPs and
CCAs that are supposed to be "contributing" to recovery will not necessarily
be making such a contribution. These plans and agreements may be approved
as long as they maintain the species habitat and if other landowners were to
do the same as the permittee, the actions would be sufficient to contribute
to recovery. Another concern is raised by how these plans and agreements
treat unlisted species. In a 1995 report, scientists raised this point when
they stated that there was a "concern about the application of the 'No
Surprises' policy to unlisted species if there is no later opportunity to
review whether the HCP [or the CCA] has contributed to the decline of the
species if the species is subsequently listed."
3.) They cut citizens out of the very decisions affecting wildlife,
drinking water, and other important public resources. An across-the-
board application of the "No Surprises" assurances deprives the public
of the opportunity to provide meaningful comment on individual HCPs
and CCAs. What is the point of asking for comments on "No Surprises"
assurances when the Services have already committed to providing these
assurances to the landowner? We should strengthen the ESA by providing
fair assurances for people AND wildlife.
How Can Species Protection on Private Land be Improved?
If HCPs and CCAs are the wave of the future for species conservation, at the
very least they MUST:
1.) Include adequate funding available to pay for conservation measures
in the event of unforeseen circumstances. The big question is how the
Services are planning to pay for those instances in which unforeseen
circumstances arise and changes are needed in the HCP or CCA? If the
Services have to purchase lands from developers in order to prevent
the decline of a species covered by an HCP or a CCA, it is a safe
bet that those lands are going to be very expensive. How will the Services
be able to accomplish needed conservation measures when they have no
funding? Adequate funds must be available to pay for mitigation that is not
subject to the vagaries of the appropriations process. The Services should
consider establishing a fund into which permittee must pay before they are
given assurances by the Services. The American taxpayers should not be
expected to foot the entire bill in the event an HCP fails to protect
threatened or endangered species.
2.) Incorporate in-depth monitoring, including independent scientific review.
Without adequate monitoring there is no way the Services will be able to
determine whether the plan or agreement is achieving its goal of recovery.
Indeed, according to nine eminent scientists who recently met at Stanford
University to discuss proposed private land initiatives and the ESA,
"mechanisms to ensure that long-term conservation plans will be monitored
adequately are essential." Thus, all aspects of a plan or agreements should
be subject to monitoring. In addition, to ensure that plans and agreements
are fair, balanced, and have included the best available scientific and
commercial data, these plans and agreements should be subject to independent
3.) Allow for meaningful citizen participation.
Citizens should be permitted to participate in the creation of HCPs and CCAs
from the beginning. In particular, any planning document that contains "No
Surprises" assurances should be subject to full public notice and comment
and the Services should clearly set forth that they have the discretion to
refuse to extend these assurances to landowners if they find that the
application of such assurances would be inconsistent with recovery.
Further, HCPs and CCAs, especially those with some form of the "No
Surprises" assurances, should include a mandatory review process in which
the permittee must submit a progress report to the Services on an annual
basis and the Secretary must publish a review of each HCP, subject to public
notice and comment, every three years.
4.) Eliminate the Permit Shield Provision to the extent that it attempts to
preclude citizens from bringing a lawsuit against permittees if the
permitted action is jeopardizing the survival and recovery of a listed
species. The Services do not have the authority to prevent citizens from
filing citizen suits against those who are violating the ESA.
For Additional Information
For copies of any of the aforementioned letters, reports, or any additional
information, please contact Roger Featherstone at GREEN or check out
Defenders of Wildlife's web page at http://www.defenders.org or National
Wildlife Federation's web page at http://www.nwf.org/endangered. You may
also contact Dr. Shawn Smallwood, who has written a scientific paper
entitled "Science Missing in the 'No Surprise' Policy." His phone number is
(916) 756-4598 and e-mail address is email@example.com. For further
information please contact Leeona Klippstein, Spirit of the Sage, at (310)
946-9463 or Kim Delfino, U.S. PIRG, at (202) 546-9707 or firstname.lastname@example.org.
The Northwest Ecosystem Alliance, Defenders of Wildlife, and Southwest
Center for Biological Diversity have also published a white paper on HCPs.
Draft Comment Letter
June ____, 1997
LaVerne Smith, Chief
Division of Endangered Species
U.S. Fish and Wildlife Service
Washington, D.C. 20240
Nancy Chu, Chief
Endangered Species Division
National Marine Fisheries Service
1315 East-West Highway
Silver Spring, MD 20910
RE: Proposed No Surprises Rule (62 Fed. Reg. 29091), Draft Candidate
Conservation Agreement (62 Fed. Reg. 32183)
Dear Chiefs Smith and Chu:
I am writing to express my opposition to the current proposed "No Surprises"
rule and draft Candidate Conservation Agreement policy. Neither of these
proposals further the conservation goals of the Endangered Species Act.
First, they close the door to new information when life is full of
surprises. How can the Services assure that all species affected by these
plans and agreements will survive and recover, especially since many recent
Habitat Conservation Plans have included tens to hundreds of species and
last up to 100 years? It is extremely unlikely that biological, social, and
political conditions will remain the same over the duration of these plans.
Second, the policies perpetuate plans and agreements that do not contribute
to recovery of threatened and endangered species. Assurances should not
given to by the Services unless the plan or agreement is consistent with a
species' recovery and not just its survival. Furthermore, voluntary
Conservation Agreements should not be used by the Services as a means of
avoiding controversial listing decisions.
Third, they cut citizens out of the very decisions affecting wildlife,
drinking water, and other important public resources. An across-the-board
application of the "No Surprises" assurances deprives the public of the
opportunity to provide meaningful comment on individual HCPs and CCAs. The
ESA should be strengthened by providing fair assurances for people and wildlife.
Both the "No Surprises" rule and CCA policy must ensure that there is (1)
adequate funding to pay for conservation measures in the event of unforeseen
circumstances; (2) in-depth monitoring, including independent scientific
review, in each plan and agreement; and (3) meaningful citizen
participation, including the elimination of the Permit Shield Provision.
________________________ !!! NEW ADDRESS !!! ______________________________
Kieran Suckling email@example.com
Executive Director 520.623.5252 phone
Southwest Center for Biological Diversity 520.623.9797 fax
http://www.envirolink.org/orgs/sw-center pob 710, tucson, az 85702-710