3
LAW, SCIENCE, AND MANAGEMENT DECISIONS

The issues related to threatened and endangered species in the Platte River Basin are products of complicated interactions between legal frameworks and applied science. This chapter reviews the Endangered Species Act (ESA) from a legal and policy perspective, examines the practice and application of science in implementing the ESA, and concludes by placing the Platte River conflict in a broader national context.

The evolution and codification of national wildlife policy in the United States provide the context for the present issues concerning the four threatened or endangered species in the Platte River Basin. Wildlife has played an important role in America’s cultural self-image. North American Indians often have regarded wildlife as sacred, and many tribes were divided into clans named for wildlife species. When European settlers founded the United States, symbols of national vitality began with the bald eagle and continued with bison and other wildlife representing the character of the nation. Fish and wildlife have continued to play important roles as cultural images, ranging from symbols of political jurisdictions, such as tribes and states, to nicknames for schools and sports teams. Thomas Jefferson’s first description of the nation’s physical geography began with a discussion of rivers and fishes (Jefferson 1787), and John James Audubon’s works brought American birdlife to the attention of the world. Concern about the extinction of species during the nineteenth century attracted considerable attention, and at the dawn of the twentieth century Congress adopted the Lacey Act of 1900 as the first national wildlife-protection statute. The sponsor of



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Endangered and Threatened Species of the Platte River 3 LAW, SCIENCE, AND MANAGEMENT DECISIONS The issues related to threatened and endangered species in the Platte River Basin are products of complicated interactions between legal frameworks and applied science. This chapter reviews the Endangered Species Act (ESA) from a legal and policy perspective, examines the practice and application of science in implementing the ESA, and concludes by placing the Platte River conflict in a broader national context. The evolution and codification of national wildlife policy in the United States provide the context for the present issues concerning the four threatened or endangered species in the Platte River Basin. Wildlife has played an important role in America’s cultural self-image. North American Indians often have regarded wildlife as sacred, and many tribes were divided into clans named for wildlife species. When European settlers founded the United States, symbols of national vitality began with the bald eagle and continued with bison and other wildlife representing the character of the nation. Fish and wildlife have continued to play important roles as cultural images, ranging from symbols of political jurisdictions, such as tribes and states, to nicknames for schools and sports teams. Thomas Jefferson’s first description of the nation’s physical geography began with a discussion of rivers and fishes (Jefferson 1787), and John James Audubon’s works brought American birdlife to the attention of the world. Concern about the extinction of species during the nineteenth century attracted considerable attention, and at the dawn of the twentieth century Congress adopted the Lacey Act of 1900 as the first national wildlife-protection statute. The sponsor of

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Endangered and Threatened Species of the Platte River the act, John F. Lacey, expressed the issue clearly: “[in] many of the states the native birds have been well-nigh exterminated” (Lacey 1900). In a related development, President Theodore Roosevelt established the nation’s first wildlife refuge in 1903 at Pelican Island, Florida. During the twentieth century, interest in protecting native wildlife species grew. Determined to avoid the loss of more species, as occurred with the passenger pigeon and the Carolina parakeet, and spurred by drastically declining numbers of popular, visible species—such as the brown pelican, wading birds, and some species of game ducks—state and federal policy-makers established refuges and management programs. Since 1966, efforts at the federal level have included three statutes that provide the basic framework for the nation’s policy regarding endangered wildlife species. The present federal legislative authority for dealing with endangered species is the product of a progression of three major acts of Congress. The first, the Endangered Species Preservation Act of 1966, was the formal beginning of federal efforts. It was ineffective because of several minor flaws and three major shortcomings: it did not prohibit the taking of endangered species, it did not recognize all types of endangered species, and it did not provide habitat protection (Bean and Rowland 1997). The Endangered Species Conservation Act of 1969 clarified congressional intent in some ways, but it did not rectify many of the problems in the earlier act. President Richard Nixon expressed widely held concerns that existing law “simply does not provide the kind of management tools needed to act early enough to save a vanishing species” (Nixon 1972). LEGAL AND INSTITUTIONAL BACKGROUND Endangered Species Act Management of lands and water in the Platte River Basin is subject to a complex web of local, state, and federal law. The federal ESA, however, is a major regulatory force that limits land and water use in the basin. Federal decisions under the ESA triggered the present committee’s review and have been a primary motivating force behind development of the Platte River Cooperative Agreement. The Endangered Species Act of 1973 remedied the shortcomings of the earlier legislative attempts, and it is the defining instrument of present policy regarding imperiled wildlife (16 U.S.C.A. § 1531-1544). Congress found that the ESA was necessary to protect the “esthetic, ecological, educational, historical, recreational, and scientific value” provided by fish, wildlife, and plants. The major purposes of the act are to provide for the conservation of endangered species and the ecosystems on which they depend. The act defines conservation as the use of all methods necessary for the recovery of species to

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Endangered and Threatened Species of the Platte River the point where they can be removed from the protected list. Species are protected under the act if they are listed as “endangered” or “threatened.” An endangered species is one that is in danger of extinction throughout all or a substantial part of its range, and a threatened species is one that is likely to become endangered in the foreseeable future. The ESA is focused on individual listed entities. It therefore does not protect ecosystems themselves, but only to the extent that they are needed by listed species. The ESA may be compatible with, but it does not require, the broader protection of ecosystems or biodiversity. Designation of Critical Habitat The focus of this committee’s review is the habitat needs of the Platte River endangered and threatened species. The ESA protects critical habitat, defined as the specific areas that contain physical or biological features essential to the conservation of the species and that may require special management considerations or protection (ESA § 3(5)). This report uses the term only to refer to areas that have been formally designated under the ESA. The congressional authors of the ESA envisioned that the designation of critical habitat by the U.S. Fish and Wildlife Service (USFWS) would take place at the same time that a species was listed, but this provision of the act has not generally been carried out. USFWS believes that designation of statutory critical habitat provides little additional protection for listed species and instead has relied on other methods—including agreements with federal agencies, states, tribes, and private persons or organizations—to promote conservation of endangered species. The designation of critical habitat has often been accompanied by long legal challenges, so throughout the nation most current critical habitat designations are either by court order or by court-supervised settlements (McCue 2003). The critical habitat provisions of the ESA have long been perplexing and controversial. As enacted (in 1973), the ESA contained a regulatory provision that limited modification of critical habitat by federal actions, but it did not define the term “critical habitat” or provide a process for its designation (Patlis 2001). USFWS and the National Marine Fisheries Service jointly published their initial interpretation of the term critical habitat in 1975 (Fed. Regist. 40:17764 [1975]). Using that interpretation, USFWS issued its first proposed determinations of critical habitat, covering six species, including the whooping crane, later in that year (Fed. Regist. 40:58308 [1975]). In 1978, Congress added a statutory definition of and process for designating critical habitat (Patlis 2001). Areas outside the present range of a species may be included in critical habitat but only if designation limited to the present range would be

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Endangered and Threatened Species of the Platte River inadequate to ensure its conservation (50 CFR 424.12(e)). Because conservation is defined to mean progress toward recovery and delisting, critical habitat must include sufficient habitat to support a recovered population, which may be larger than the population at the time of listing or larger than a minimal viable population. In determining critical habitat, USFWS (50 CFR § 424.12(b)) considers the species need for Space for individual and population growth and for normal behavior. Food, water, air, light, minerals, or other nutritional or physiological requirements. Cover or shelter. Sites for breeding, reproduction, and rearing of offspring. Habitats that are protected from disturbance or are representative of the historical geographic and ecological distributions of a species. In addition, according to its Endangered Species Listing Handbook (USFWS 1994), the agency considers both species and habitat dynamics when determining critical habitat. If the species requires ephemeral habitats, for example, the designation should consider the potential location of future habitats. Unoccupied areas may be included in critical habitat if, for example, they provide landscape connectivity between occupied areas, support pollinators or organisms involved in seed dispersal, or provide areas into which the population might need to expand (Fed. Regist. 68 (151): 46715 [2003]). However, the handbook directs the service not to include areas that are unsuitable for use by the species unless they are essential to conservation of the species (Figure 3-1). Critical habitat determination may be most difficult where more territory is occupied at the time of designation than is necessary for the survival and recovery of the species. The statute and USFWS regulations and guidance provide little indication of how the agency will identify critical habitat within the occupied range. That identification raises issues of equitable distribution of the economic and other impacts of species protection and scientific issues of what is best for the species. One recent critical habitat determination states that the agency set priorities for designation among areas that were already subject to some protection and areas with minimal habitat fragmentation (Fed. Regist. 68 (151): 46684 [2003]). The description of critical habitat is supposed to include a list of the physical and biological features essential to the species, which are referred to as primary constituent elements (50 CFR 424.12(b)). Management of critical habitat focuses only on those features (50 CFR 17.94(c)), and critical habitat designation therefore does not limit actions in a designated geographic area that do not affect the primary constituent elements (Fed.

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Endangered and Threatened Species of the Platte River FIGURE 3-1 An example reach of the central Platte River with suitable habitat for whooping crane, piping plover, and least terns. This reach, near Shelton has substantial open areas with long sight lines. Source: Photograph by W.L. Graf, August 2003. Regist. 68 (151): 46684 [2003]). Primary constituent elements are often only vaguely articulated in the critical habitat rule. A federal district court has held that identifying as primary constituent elements for the Rio Grande silvery minnow only water of “sufficient” quality and quantity did not provide an adequate standard (Middle Rio Grande Conservancy District v. Babbitt, 206 F. Supp. 2d 1156 [D. N.M. 2000]). Another federal district court has rejected a general description that the species requires a “suitable range” of temperatures or habitat patches of “sufficient size” to prevent isolation (Home Builders Association of Northern California v. USFWS, 268 F. Supp. 2d 1197 [E.D. Cal. 2003]). Like listing decisions, critical habitat determinations must be made “on the basis of the best scientific data available.” A recent General Accounting Office report concluded that critical habitat designations generally do rest on the best available science, but the available data are often narrowly limited (GAO 2003). In contrast with listing decisions, however, critical habitat designation must also take into consideration “the economic impact, and any other relevant impact,” of that designation. Areas may be excluded from critical habitat if the agency concludes that the benefits of exclusion outweigh the benefits of inclusion unless it finds, on the basis of

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Endangered and Threatened Species of the Platte River the best scientific data available at the time of determination, that exclusion will result in the extinction of the species (ESA § 4(b)(2)). Until recently, USFWS used a “baseline approach” to economic analysis, considering only the economic impacts imposed specifically by critical habitat designation and excluding the baseline economic impacts resulting from the listing of the species. Because, as explained below, USFWS believes that critical habitat designation has virtually no effect beyond that of listing, this approach greatly simplified the economic analysis of critical habitat designation. In most cases, USFWS found that critical habitat designation would have no economic effects beyond the baseline effects of listing. In 2001, however, a federal appeals court ruled that the baseline approach was unlawful (New Mexico Cattle Growers Association v. U.S. Fish and Wildlife Service, 248 F.3d 1277 [10th Cir. 2001]). Consequently, USFWS now considers all economic impacts, including ones that are coextensive with the impacts of listing, when it designates critical habitat. In its economic analyses, USFWS attempts to forecast all costs of conducting Section 7 consultations (discussed below) with respect to the species and costs of revising or forgoing projects on the basis of the consultations. USFWS recently began making aggressive use of the authority to exclude areas from critical habitat on the grounds that the benefits of exclusion outweigh the benefits of inclusion. This practice has not yet been tested in litigation. The agency has not articulated a general process for determining when such exclusions are appropriate; instead, it makes exclusions on an ad hoc basis. In one recent decision, it excluded entire counties in California from critical habitat for a number of vernal pool species because it determined that the costs imposed by including habitat in those counties would be disproportionately high compared with costs imposed in other areas and for other species (Fed. Regist. 68 (151): 46745 [2003]). USFWS also has taken the position that areas can be excluded from critical habitat designation if they do not require special management. It excludes areas from critical habitat as adequately managed if a management plan or agreement that is in effect provides sufficient conservation benefit to the species, it provides adequate assurances that its conservation strategies will be implemented, and it provides sufficient assurances—for example, through monitoring and revision procedures—that the strategies will be effective (Fed. Regist. 66 (22): 8543 [2001]). A federal district court has recently held, however, that the ESA does not permit exclusion from critical habitat on the grounds that adequate management provisions are already in place (Center for Biological Diversity v. Norton, 240 F. Supp. 2d 290 [D. Ariz. 2003]). In recent critical habitat determinations, USFWS has relied on a different basis for excluding managed areas. The statute provides that any area may be excluded from critical habitat if the benefits of exclusion outweigh those of inclusion, provided that exclusion will not

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Endangered and Threatened Species of the Platte River cause the extinction of the species (ESA § 4(b)(2)). The agency’s current interpretation is that where lands are already managed for conservation of the species, the benefits of critical habitat designation are minimal and therefore easily outweighed by the potential resource costs and delays imposed by the consultation requirement. USFWS treats this basis of exclusion from critical habitat as broader than the “no special management required” criterion, such that it allows exclusion even in the absence of an approved management plan (Fed. Regist. 68 (151): 46751 [2003]). The ESA requires designation of critical habitat “to the maximum extent prudent and determinable” at the time a species is listed (ESA § 4(a)(3)). According to agency regulations, designation is not prudent if it would increase the threat of deliberate human taking or it “would not be beneficial to the species” (50 C.F.R. 424.12(a)(1)). USFWS once took a very broad view of the “not prudent” exception, frequently declining to designate critical habitat because it would provide little incremental protection beyond that provided by listing alone. Several court rulings, however, have required the agency to make a more specific showing that the benefits of critical habitat designation are outweighed by specific threats to the species, such as the threat of increased collection activity, if it wants to invoke the “not prudent” exception (e.g., Natural Resources Defense Council v. U.S. Dept. of Interior, 113 F.3d 1121 [9th Cir. 1997], Sierra Club v. USFWS, 245 F.3d 434 [5th Cir. 2001]). Critical habitat is not determinable when the impacts of designation cannot be analyzed or the biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat (50 CFR 424.12(a)(2)). Because so little is known about many dwindling species, identifying critical habitat at the time of listing often poses a serious challenge. For that reason, commentators, including a National Research Council committee, have proposed that short-term “survival habitat” be the focus at the time of listing, leaving the detailed identification of critical habitat and the accompanying economic evaluation for the recovery-planning process (NRC 1995). The statute, however, sharply limits delay while additional information is developed. USFWS can delay designation for only 1 year on the grounds of lack of information (ESA § 4(6)(C)(ii)). At the end of that year, it must designate critical habitat on the basis of the available data. USFWS has long believed that designation of critical habitat is “an expensive regulatory process that duplicates the protection already provided by the jeopardy standard” (Fed. Regist. 64 (113): 31871 [1999]). In recent years, USFWS has been, in its words, “inundated with citizen lawsuits” based on its failure to designate critical habitat (Fed. Regist. 64 (113): 31872 [1999]). In response to the deluge of critical habitat lawsuits, the U.S. Department of the Interior (DOI) has requested and Congress has

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Endangered and Threatened Species of the Platte River approved a cap on spending on critical habitat determination to ensure that critical habitat work does not consume the entire ESA listing budget. During the summer of 2003, the assistant secretary of the interior for fish and wildlife and parks testified that the flood of critical habitat litigation was preventing USFWS from adding deserving species to the protected list and was delaying recovery efforts for already-listed species. Once designated, critical habitat may be revised as new data become available, but there is no specific requirement for periodic revision. The listing agencies are required to review the status of listed species every 5 years to determine whether they should be delisted or their classification should be changed (ESA § 4(c)(2)). If review shows that critical habitat should be revised, USFWS has said that it “will take appropriate action” (Fed. Regist. 45:13010 [1980]). However, USFWS has no funding even for new critical habitat designation. It is highly unlikely that the agency would choose to revise existing critical habitat designations in the current budget climate even if specifically asked to do so. In recent years, when USFWS has found critical habitat designation warranted in response to petitions, it has not proposed revisions. Nonetheless, there may be limits to the discretion that USFWS enjoys to delay revisions of critical habitat. In a case involving the Cape Sable seaside sparrow, a federal court has ruled that USFWS cannot indefinitely delay critical habitat revisions when, in response to a petition, it has acknowledged that revisions are necessary to adequately protect a critically endangered species. The court did not set a timetable for revisions but required USFWS to set and explain a schedule for making them (Biodiversity Legal Foundation v. Norton, 285 F. Supp. 2d 1 [D.D.C. 2003]). Designation of Critical Habitat for Platte River Species Several areas in the whooping crane’s migratory pathway, including the main channel of the Platte River, and its immediately associated riparian habitat between junction of U.S. Highway 283 and Interstate 80 near Lexington to the interchange for Shelton and Denman, Nebraska, were designated as critical habitat for the whooping crane in 1978 (Fed. Regist. 43:20938 [1978]) before addition of the statutory definition of critical habitat to the ESA. USFWS later proposed to designate several additional critical habitat units, including a portion of the Niobrara River and several national wildlife refuges in North Dakota and South Dakota (Fed. Regist. 43:36588 [1978]), but that proposal was withdrawn (Fed. Regist. 44:12382 [1979]). At the time of critical habitat designation for the whooping crane, USFWS was applying its regulatory definition, which focused on areas and elements whose loss would appreciably decrease the likelihood of the survival and recovery of the species. With respect to the Platte River unit,

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Endangered and Threatened Species of the Platte River USFWS noted that this area “forms the most important stopping site on the migration route of the whooping crane” (Fed. Regist. 40:58308 [1975]): Historical data show that this area, sometimes called the “Big Bend” area of the Platte River, was a focal point through which the whooping cranes passed before spreading out to their wintering grounds to the south and their breeding grounds to the north. There are more old records of the presence of the species here than in any other part of the migration route, and recent confirmed records indicate continued heavy use within the last few years. Available information indicates that the combination of the Platte River channel, and adjacent wet meadows, rainwater basins, and farmlands form a unique association of habitats that is the most valuable part of the entire migration route of the species. Reduction in the quality or size of this habitat association, especially in the water level of the area, could be expected to have an adverse effect on the surviving population of the species. When the piping plover was listed, USFWS indicated that critical habitat was not determinable. A lawsuit later resulted in a court order that required USFWS to designate critical habitat. In response to that order, USFWS issued a final rule that designated critical habitat for the northern Great Plains population of the piping plover on September 11, 2002 (Fed. Regist. 67 (176): 57638 [2002]) and that stated: Within the geographic area occupied by the species … we designate only areas currently known to be essential. Essential areas should already have the features and habitat characteristics that are necessary to conserve the species. We will not speculate about what areas might be found to be essential if better information becomes available, or what areas may become essential over time. If the information available at the time of designation does not show that an area provides essential life cycle needs of the species, then the area should not be included in the critical habitat designation. At the same time, USFWS recognized that habitats and species are both dynamic. It stated that “critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome.” The primary constituent element identified for the critical habitat for the piping plover is “the dynamic ecological processes that create and maintain piping plover habitat.” On rivers, the primary physical constituent elements were identified as “sparsely vegetated shoreline beaches, peninsulas, islands composed of sand, gravel, or shale, and their interface with the water bodies.” A total of 19 units were identified as critical habitat for the piping plover, ranging across five states and covering a total of over 180,000

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Endangered and Threatened Species of the Platte River acres (over 74,000 ha) and 1,200 river miles. In Nebraska, the Platte River was designated as critical habitat for the piping plover from Lexington to the confluence with the Missouri River, a distance of 252 mi. The entire Loup River (68 mi) and the eastern portion of the Niobrara River (120 mi) were also designated. USFWS recognized that some of this area might not be occupied in any given year but stated that “designation is necessary because of the dynamic nature of the river. Sandbar habitats migrate up and down the rivers resulting in shifts in the location of primary constituent elements.” USFWS excluded the shoreline of Lake McConaughy from its critical habitat delineation on the grounds that it was already adequately managed under plans developed by the Central Nebraska Public Power and Irrigation District. It also excluded sand pits on the grounds that they do not meet the physical and biological requirements of critical habitat. No critical habitat has been designated for the interior least tern or pallid sturgeon. When it listed the interior least tern, USFWS concluded that designation of critical habitat was not prudent, because it would provide no demonstrable overall benefit to the tern (Fed. Regist. 50:21790 [1985]). When it listed the pallid sturgeon, USFWS found that designation of critical habitat was not prudent and that critical habitat was not determinable (Fed. Regist. 68 (151): 46684 [2003]). Regulatory Provisions of Endangered Species Act and Effect of Critical Habitat Given current regulatory definitions, the designation of critical habitat has little, if any, direct regulatory impact. Nonetheless, critical habitat has frequently been a flashpoint for controversy. Objections to critical habitat designation seem to rest in part on misunderstanding of its legal significance, but may also have some justification. Apart from its narrow direct impacts, critical habitat designation may have indirect regulatory impacts. In a practical sense, it may affect the attitudes of regulators, federal agencies, and property-owners or resource-users, subtly altering the regulatory landscape. In addition, the current regulatory definitions have been rejected by one federal court and may eventually have to be revised. Species listed as endangered or threatened under the ESA benefit from the two major regulatory provisions of the act: Section 7 and Section 9. Section 7 requires that federal agencies carry out programs for the conservation of listed species and ensure that the actions they take, fund, or authorize are not likely to jeopardize the continued existence of any listed species or to result in the destruction or adverse modification of designated critical habitat. Section 9, which applies to both federal and nonfederal actors, prohibits the taking of endangered and threatened animal species unless USFWS produces a special rule allowing limited take. Section 10

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Endangered and Threatened Species of the Platte River allows USFWS to authorize, by permit, acts that would otherwise be prohibited by Section 9 if the applicant submits an acceptable habitat conservation plan (HCP). A permit can be granted if the take is incidental to and not the purpose of the permitted action, the impacts will be minimized and mitigated to the greatest extent practicable, adequate funding to implement the plan is ensured, and the taking will not appreciably reduce the likelihood of survival and recovery of the species in the wild (ESA Section 10(a)(2)(B), 16 USC 1539(a)(2)(B)). Critical habitat plays a direct role only in the operation of Section 7: federal actions must neither cause jeopardy nor destroy or adversely modify critical habitat. Section 7 is implemented through a process of formal or informal consultation. A federal agency whose actions may adversely affect a listed species must seek formal consultation with USFWS. The action agency prepares a biological assessment, detailing what it believes will be the impacts of its action. USFWS reviews the biological assessment and issues a biological opinion that the action will or will not jeopardize the continued existence of the species or destroy or adversely modify designated critical habitat (50 CFR Part 402). Jeopardy opinions must suggest any reasonable and prudent alternative (RPA) that will serve the purpose of the proposed action without causing jeopardy or adverse modification (ESA Section 7(b), 16 USC 1536(b)). The ultimate decision of whether the proposed action will cause jeopardy or impermissible effects on critical habitat remains with the action agency, which must use the best scientific data available at the time of the decision (ESA Section 7(a)(2), 16 USC 1536(a)(2)). But an agency that rejects the views of USFWS and proceeds with a project acts at its own peril. As the formal view of an agency with recognized expertise, a biological opinion carries considerable weight with a reviewing court. Consultation can be a time-consuming and expensive process. It would be unusual, however, for critical habitat designation to increase the scope of the consultation requirement. Consultation is required for any action that may adversely affect a listed species. A biological assessment is generally required if a listed species may be present in the action area (50 CFR § 402.12), whether or not the action is within designated critical habitat. If the biological assessment results in the conclusion that the action may adversely affect the listed species or its critical habitat, formal consultation leading to a biological opinion is required (50 CFR § 402.14). Because effects on the species and its critical habitat are closely intertwined, it is hard to imagine a situation in which the critical habitat could be adversely affected without any adverse effect on the species. Substantively, as a matter of law, the presence or absence of critical habitat currently makes little difference in the outcome of Section 7 consultations. USFWS has by regulation defined the “jeopardy” and “adverse

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Endangered and Threatened Species of the Platte River Scientific Validity Scientific validity is a contextual determination. It may mean that a reasonable scientist in the field would accept a conclusion as justified in light of the evidence available. In some circumstances, specific conventions have been developed that require a specific level of certainty before a conclusion is accepted (e.g., a 95% confidence level). Those conventions rest on value judgments about the relative costs of false-positive and false-negative errors. The costs may be very different between the management context and the context of abstract scientific research. Moreover, because science is not fixed in time, neither are judgments regarding scientific validity. The degree of scientific certainty needed to justify a particular management decision is a social decision that requires evaluation of the relative costs of different types of errors. The committee has not attempted to make those decisions, which we regard as outside our charge. Instead, we have tried to evaluate the strength of the scientific evidence supporting current management decisions (Box 3-2). Data and Uncertainty in Implementation of Endangered Species Act Scientific research and the knowledge it produces play important roles in the administration of the ESA. Answering the question of whether a species is endangered or threatened requires the use of scientific observation. Ecological analysis leads to an understanding of habitat needs. The development of recovery plans requires an understanding of why populations have declined so much that a species is threatened or endangered. Such research usually requires not only biological approaches to understand the dynamics of the species itself but also approaches that include earth, water, and atmospheric sciences to understand the changing physical basis of its habitat. USFWS and action agencies are required to use the best available scientific information in conducting consultations and in determining jeopardy opinions. In the context of ESA implementation, available data typically are sparse, and what data do exist are usually derived not from laboratory experiments but from less-structured methods. Listing decisions, critical habitat designations, and biological opinions are usually informed by data from simple species surveys, counts of individuals at circumscribed locations through time, and observations of resource use, behavior, and reproductive success under varying circumstances. In a few cases, more complex and comprehensive studies that provide additional data on species behavior or biology, such as survival of offspring to maturity and long-distance dispersal, are available. In addition to being sparse, available data often have been collected from diverse sources that can have varying reliability. Sources may range from observations by laypersons through systematic inventories undertaken by trained professionals to systematic development of dynamic process

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Endangered and Threatened Species of the Platte River BOX 3-2 Criteria for Assessing the Degree of Scientific Support for Decisions The charges to the Committee on Endangered and Threatened Species in the Platte River Basin generally required the committee to assess the degree of scientific support for decisions reached by Department of the Interior agencies regarding species and river processes. In determining whether and to what extent decisions are supported by existing science, the committee considered: The extent of data available. Whether the available data had been generated according to standard scientific methods that included, where feasible, empirical testing. Whether those methods were sufficiently documented to allow others to repeat them and whether and to what extent they had been replicated. Whether either the data or the methods used had been published in documents made freely available to other researchers and the public to facilitate criticism or correction and whether they had been formally peer-reviewed. Whether the data were consistent with accepted understanding of how the systems function and whether they were explained by a coherent theory or model of the system. Whether the decisions were publicly explained with clear reference to supporting data, models, and theories so that the rationale for the decisions was apparent and open to challenge by stakeholders. No one of the above criteria is decisive, but taken together they provide a good sense of the extent to which any conclusion or decision is supported by science. Because some of the decisions in question were made many years ago, the committee felt that it was important to ask whether they were supported by the existing science at the time they were made. For that purpose, the committee asked, in addition to the questions above, whether the decision makers had access to and made use of state-of-the-art knowledge at the time of the decision. The committee was also asked to assess the scientific validity of the methods used to develop instream-flow recommendations. The criteria applied in answering that question were similar to those above but focused more directly on methods: Whether the methods used were in wide use or generally accepted in the relevant field. Whether they had a sound theoretical basis or were supported by a generally accepted understanding of the system. Whether they were sufficiently documented to facilitate replication. Whether sources of potential error in the methods have been or can be identified and the extent of potential error estimated. Whether the methods have been formally peer-reviewed or published in documents made freely available to other researchers and the public. Again, no one criterion is decisive. Considering all those factors, the committee made a judgment as to the validity of the methods that it was asked to evaluate.

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Endangered and Threatened Species of the Platte River studies carried out by scientists. Data-collection efforts typically are not commissioned or handled directly by resource managers; therefore, they often do not directly address key management questions. It can be expensive, time-consuming, difficult, or even impossible to collect directly the key data needed to address management questions. The most popular method of organizing available data to assess the likelihood of species persistence is the aforementioned PVA, a modeling tool that uses information on genetic, demographic, and environmental sources of variability. The output of PVA is not an explicit prediction of time to population extinction but an estimate of the probability that a population of a given size will persist for some specified period. As in other fields of science, some uncertainty is inherent in PVA. Scientific uncertainty pervades species-conservation issues, including those related to the central Platte River. Regan et al. (2002) term such uncertainty “epistemic.” Sources of epistemic uncertainty include survey shortcomings, measurement errors, variation and inherent randomness of the natural system and species responses, and the application of subjective judgment in the analysis and interpretation of available information. For the Platte River species, epistemic uncertainty is pervasive. The contribution of Platte River stopover resources to the fitness of individual whooping cranes can only be surmised through indirect data and subjective model assumptions; assessing the likelihood of regional persistence of Platte River piping plovers and interior least terns requires many assumptions about local structure and dispersal and about interactions among birds across larger landscapes; and information on the pallid sturgeon is virtually nonexistent beyond locations of capture, from which only the most basic inferences regarding habitat requirements and use can be made. An additional challenge for the effective use of science in ESA regulatory decisions is that these decisions typically incorporate value judgments. The judgments have not been made either by Congress or by USFWS at a level specific enough to inform management decisions. Neither the ESA nor USFWS’s implementing regulations, for example, define threatened, endangered, or jeopardize the continued existence of in quantitative terms by identifying acceptable threshold levels of extinction risk. Nor do the statute and regulations specify how the agency should choose among occupied habitats, not all of which may be required to maintain a viable population, identify critical habitat, or determine what magnitudes of economic or other costs may justify exclusion of specific areas from critical habitat. Those aspects of ESA implementation decisions are not scientific in the sense that they could, even in theory, be decided solely through evaluation of empirical, objectively gathered data. They require social or political value judgments that are inevitably subjective. The committee believes that these judgments should be made transparent; that is, USFWS should clearly

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Endangered and Threatened Species of the Platte River explain in a decision document both its evaluation of the scientific data and its use of nonscientific factors to reach a final decision. WATER MANAGEMENT: CONNECTING LAW AND SCIENCE The Platte River serves a large and growing urban population as a potable-water supply, provides water for irrigation of millions of acres of cropland, and provides habitat for a wide array of species, including some that are threatened or endangered. Competition for use of the Platte River’s waters has fueled serious debate within the basin states of Colorado, Wyoming, and Nebraska and beyond. To understand the details of the conflicts that have emerged in this watershed, it is useful to look at the forces that have created similar conflicts throughout the United States, and they are set forth here. The next section discusses some of the common elements of the conflicts and relates them to the Platte River controversy. Overappropriation of Water Many watersheds in the west are “overappropriated”; that is, more water has been legally allocated to users than can be physically provided in all years. There are many reasons for overappropriation, from lack of good technical information on which to base allocations to lack of political willingness to limit allocations (Meyers 1966). Perhaps the most famous example of overappropriation is the Colorado River, whose waters were allocated between upstream and downstream states by using data from one of the wettest periods in the last century. As a result, the Colorado River Compact allocates some 10% more water than is available in a typical water year. Although the natural flow of the Platte River was fully appropriated before 1900, new uses of groundwater and surface water continue to be allowed. Surface-water and groundwater uses are necessarily connected; use of surface water beyond some point depletes hydrologically connected groundwater, and vice versa. Changing Values and Public Perceptions The values that the American public expects water management to serve have evolved over the last 50 years. Expanded focus on protecting endangered species, providing for recreational uses, and providing water supplies for Indian settlements have introduced major new pressures on river systems that were already overappropriated. Protecting these recently recognized values in the context of highly altered hydrological regimes increases possibilities for conflict.

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Endangered and Threatened Species of the Platte River In addition, public perceptions are often shaped by beliefs about natural systems that may not be based on adequate, defensible, or any empirical data. Entrenched ideological commitments complicate efforts to find compromise solutions or resolve conflicts collaboratively. Institutional Inflexibility The ability to solve problems in a changing physical and social context is affected by the ability of water-management institutions to respond to changes. Water-management institutions generally focus on protecting the status quo, including the rights of existing water users, and may not adapt quickly to changing circumstances. Irreversible Decisions and Unacceptable Consequences Many decisions in water management are effectively irreversible, and this limits the usefulness of adaptive management. For example, construction of a major dam is, as a practical matter, ecologically irreversible. The dam is unlikely to be removed in the short run; and although it might be removed at some distant time, it is likely to leave enduring effects on the landscape (Figure 3-2). FIGURE 3-2 Keystone Diversion on the North Platte River, upstream from the central Platte River, represents an example of an effectively irreversible feature of the watershed that has enduring effects on flows. Source: Photograph by W.L. Graf, May 2003.

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Endangered and Threatened Species of the Platte River The Platte River system is already highly modified by the construction of dams, canals, and diversions that have important economic consequences. A large constituency has come to rely on the continued operation of those artifacts, but their environmental effects have only recently been recognized. It is not surprising that new water-management proposals have generated considerable concern among water and power interests. Dispersed Costs and Concentrated Benefits Federal water-planning guidelines typically forbid funding of new projects unless their benefits will exceed their costs. However, the costs of federal projects are spread among taxpayers nationwide, whereas the benefits typically are geographically concentrated. The concentration of benefits makes it possible to bring concerted political pressure to bear; such pressure has led in many cases to the development of water projects whose benefits do not exceed their costs. Historically, conflicts over the allocation of benefits and costs have been exacerbated by funding rules that provided full funding for some purposes (such as flood control) and less than full funding for others (such as municipal water supply). Lack of symmetry between the costs and benefits of water projects can also contribute to pressures to maximize appropriations and diversions at the expense of environmental values (Farber and Frickey 1987). A nationwide constituency benefits, in a diffuse way, from the protection of endangered or threatened species and the other environmental values of river systems. In contrast, a focused, clearly identified community of water users benefits from diversion. Water users therefore typically find it easier than environmental interests to organize and exert political pressure on decision makers. Evaluation of Cumulative Environmental Impacts A difficult challenge encountered by water-resources planners and managers is how to evaluate cumulative environmental impacts (see NRC 1986, 2003). A classic example is the regulation of multiple discharges of waste into a single river. It is possible that none of the individual waste streams will threaten environmental values, but together they may produce unacceptably poor water quality. It can be difficult both to understand what total impact will pass acceptable threshold levels and to divide responsibility for avoiding unacceptable levels equitably. In the Platte, cumulative impacts include those of upstream activities (including withdrawals) in two other states and those of withdrawal of hydrologically connected groundwater.

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Endangered and Threatened Species of the Platte River Insufficient or Poor Data As suggested previously, a primary source of conflict in water management can be the lack of information to support informed decisions. Although state and federal agencies historically collected an enormous amount of basic information concerning water resources across the United States, data-gathering efforts have recently been curtailed by funding concerns. Water-quality data are generally less available than water-quantity data. In general, data gaps leave a large number of uncertainties. As a result, decisions must be made under circumstances in which their environmental impacts, both favorable and unfavorable, are inapparent or difficult to predict. Categories of Water-Resources Conflicts The numerous water-resources conflicts across the United States can be categorized in a variety of ways, but one convenient approach is to define them in terms of water use. Conflicts frequently occur between upstream and downstream uses, instream and out-of-stream uses, groundwater and surface-water uses, and present and future uses. That categorization can help to create a framework for conflict resolution. The Platte River Basin today is experiencing all four types of conflict. Perhaps the most common source of water conflicts is associated with upstream vs downstream uses. In many circumstances, water is diverted from a stream and only a portion of it is returned, leaving downstream users with less than the natural flow. Much of water law in the West, in particular the prior-appropriation doctrine, is devoted to providing a framework for resolving such conflicts. They are particularly intractable in larger watersheds, where the upstream and downstream uses may be separated by hundreds of miles and by state or international borders. As water demands and water uses change, the character of upstream vs downstream water uses may change dramatically, increasing the potential for conflict. Disagreements between upstream and downstream states can be resolved by negotiation of interstate compacts or, if that fails, by litigation. The Platte has been the subject of both. The basin states successfully negotiated a compact for allocation of the waters of the South Platte, but the North Platte has been the subject of protracted litigation and is allocated largely by a court decree. Conflicts between instream and out-of-stream uses in the West have increased dramatically since the 1970s, as water demands for municipal and agricultural uses have expanded and stresses on aquatic systems have been recognized. In some states, instream-flow rights have been established to protect water flows for biological communities. It is important

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Endangered and Threatened Species of the Platte River to note that until the 1980s, many states did not specifically recognize the public values of such flows, and maintaining flows for habitat was not guaranteed. Quantifying ecological instream-flow requirements is often challenging in that anticipating the response of biological communities to a variety of flow regimes is difficult and estimating the effects of cumulative stressors on the biological communities is a young science. Two typical approaches are taken to establishing instream flows in rivers: establishing water rights based on a percentage of the natural flow on a monthly or weekly basis and providing minimal flows on the basis of the biological needs of a specific species. Instream flows have now been established for numerous rivers, often after one or more species have been identified as threatened or endangered or as part of a larger environmental licensing process (such as for hydropower production or municipal water supplies). Other users of water may view the establishment of such instream flows as direct threats to their access, noting that such requirements erode their ability to obtain water for out-of-stream uses. The flows that have been suggested by USFWS in the central Platte are examples of instream flows to protect endangered species, and there has been litigation over attempts by the NGPC to obtain instream-flow rights to support the central Platte’s endangered and threatened species. Conflicts are increasingly emerging between surface-water and groundwater use. The relationship between surface water and groundwater was often ignored in early allocation of water rights. In some states, including Nebraska, surface water is regulated and groundwater remains largely unregulated. As described in the groundwater section of Chapter 2, the depletion of groundwater and its effects on surface flows have created substantial problems throughout the Southwest and elsewhere. Although the relationship between surface water and groundwater has been qualitatively understood for decades, legal and institutional constraints have impeded conjunctive management of these resources. The complicated hydrological relationship of surface-water and groundwater flows makes their regulation difficult, and often appropriate management can be achieved only after a detailed understanding of their interactions is obtained. The current efforts on the Platte to develop a comprehensive groundwater–surface-water model mark a good first step in developing a strong understanding of the hydrology of the river. At the center of many water conflicts is the general notion of sustainability, which is related to the balance of present needs with future needs. Although many definitions of sustainability exist, a commonly used one from the Bruntland Report (Bruntland 1987) is “meeting economic, environmental and social needs of the present without compromising the ability of future generations to meet their own needs.” That definition is

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Endangered and Threatened Species of the Platte River especially appropriate for watershed planning because it goes beyond the simple allocation of today’s water to include the needs of people and the broader biological community for many generations into the future. The concept of sustainability is a broader management goal than resolving the individual categories of conflict mentioned above. However, a sustainable system must have a mechanism to address those conflicts. Sustainability does not imply managing a watershed in a static fashion, that is, ignoring changes in water demands, water use, water availability, and the economic, environmental, and social systems that rely on water. It is difficult to imagine a sustainable system that is not “adaptive.” Adaptive management of watersheds—alteration of management of a watershed based on the system state and the current inputs and desired outputs of the system—may be required much more in the future as pressure on water supplies continues to increase. LESSONS FOR THE PLATTE FROM OTHER WATER CONFLICTS Every water-resources conflict can appear unique to those involved in it. Every watershed does have distinctive characteristics, but many of the causes of water conflicts and approaches to their solution are similar across a large number of basins. The components and categories of water-resources conflicts noted above are found again and again in other water-resources conflicts. Three lessons from water conflicts in the Colorado, Cedar, Klamath, and Snake Rivers are offered for those dealing with science and decision making for the Platte River. The first general lesson is that uncertainty is always associated with the data available for decision making associated with water resources. Lack of complete data cannot be an excuse for making no decision; complete data will never be available. Adaptive management when incomplete data are available is an important hedge against mistakes derived from uncertainty, because in adaptive management, monitoring and measurement provide a constant stream of new data to evaluate the outcomes of decisions. If resource changes are not as expected, the new data can support revised decisions. The second general lesson is that the level of uncertainty in the Platte River Basin is at least similar to that in other basins in the western United States. In some cases, the quality of data is better than in other circumstances, so although decisions are required in the face of incomplete data and some uncertainty, our scientific understanding of the Platte River and its resources provides support for decisions to a degree similar to the support for decision makers in other basins. Finally, conflict resolution in water resources requires a comprehensive view of the entire watershed. The comprehensive view must take into

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Endangered and Threatened Species of the Platte River account the interests of all the stakeholders and economic sectors even if they are far removed from the site of intensive management. The comprehensive view of the watershed also dictates that downstream restoration and management are inescapably connected to management of the land and water resources in the upper watershed. SUMMARY AND CONCLUSIONS The issues faced in the Platte River Basin are similar to water-related conflicts in other parts of the United States. Protection of federal and state listed species in the central Platte River Basin has had, and will continue to have, a profound effect on management of the waters of the Platte River and many other rivers in the country. Critical habitat designation, which was the focus of the call for this study, however, has not been an important driving force in management decisions. Every biological opinion that has identified the need to restrict or modify federal actions in the Platte River Basin has found both that the proposed actions would jeopardize the continued existence of listed species and that they would adversely modify or destroy designated critical habitat. In other words, no biological opinion has said that the effects on critical habitat were unacceptable but there would be no jeopardy, and no biological opinion has ever relied solely on the effects on critical habitat to mandate changes in a project. USFWS’s views on the stream-flow and habitat needs of the protected species have been an important factor in management decisions, but the formal designation of critical habitat has not. The best available scientific data are often incomplete or inconclusive, particularly in the context of endangered-species management, because information about the biological needs of species is difficult to gather and systematic data-collection efforts often are of recent origin. Management judgments may accord with professional standards and be considered scientifically valid even if they are made in the absence of conclusive data and even if they turn out to be wrong when judged against later-accumulated data. Science is a process of incremental learning, but managers do not have the luxury of waiting until conclusive evidence is accumulated; they are required to act on the basis of their best understanding of the system at any given time. Many decisions made under the ESA, including decisions on critical habitat designation, cannot be fully determined with scientific data even if the data are complete. Those decisions require judgments about social values, including the relative importance of competing values at stake. Identification of endangered or threatened species requires choices about the level of acceptable risk. Designation of critical habitat requires some balancing of species’ needs against economic impacts—again, a determination of ac-

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Endangered and Threatened Species of the Platte River ceptable risk. In addition, when a species at the time of listing occupies a broader range than appears to be required to maintain a minimal viable population, critical habitat designation must include decisions about which areas to protect and which to allow to be destroyed. Those choices include scientific considerations, to the extent that some areas appear more important than others to the species, but also require balancing of equities with respect to competing human uses. The uncertainty facing Platte River managers is high but not unusual for river systems in the United States. Furthermore, uncertainty about the Platte River is an element of all management decisions, not just decisions that restrict diversions. Just as there is uncertainty about stream-flow requirements of the listed species in the central Platte, there is uncertainty about the efficacy of the tradeoffs authorized by USFWS in its recent biological opinions authorizing new diversions in return for habitat-restoration efforts or payment of mitigation fees into a habitat acquisition and restoration fund. Adaptive management is one approach for identifying and taking steps to close key information gaps. Adaptive management is being implemented, at least in small ways, in some other river systems. Platte River management might benefit from more-systematic efforts to accumulate data about the effects of flow levels on the physical and biological system and to incorporate the data into future management decisions.