Subject: SW BIODIVERSITY ALERT #82
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SOUTHWEST BIODIVERSITY ALERT
#82
6/19/97
SOUTHWEST CENTER FOR BIOLOGICAL
DIVERSITY
silver
city, tucson, phoenix, san diego
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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.
*****
***** **** *****
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
as is.
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
sale:
Apache-Sitgreaves National Forest, P.O.B. 640,
Springerville,
AZ 85938
_____ _____
_____ _____
_____
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
shooting."
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.
_____ _____
______ _____
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COMMENTS NEEDED ON CLINTON PROPOSAL TO ADMINISTRATIVELY
WEAKEN
E.S.A.
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
Administration policy..
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
scientific review.
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 puma@davis.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
kdelfino@pirg.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
452 ARLSQ
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.
Sincerely,
________________________ !!! NEW
ADDRESS !!! ______________________________
Kieran
Suckling
ksuckling@sw-center.org
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