by Ric Frost
I. Introduction
The U.S. Fish and Wildlife Service Division of Economics (USFWS) issued a Draft Economic Analysis with a 30 day comment period on Friday, December 28, 2001. This was at a time when state and local government agencies, including the post office, had extended office closures due to the New Year’s holiday that occurred just after that weekend, thus losing almost a week of time. Bioeconomics, Inc. had prepared and released the document in November 2001, one month earlier than its release by the USFWS to the public for comments.
This study analyzes the three related critical habitat publications (Economic Analysis of the Critical Habitat Designation (EACHD), Environmental Assessment of the Critical Habitat Designation (EA), and the Federal Register 50 CFR Part 17 Proposed Designation of Critical Habitat (FRPD)) prepared in the designation of critical habitat for the North Great Plains Breeding Population of the Piping Plover. The foremost concern of these documents is the lack of analysis and the misrepresentation of the full consequences in reference to the proposed action. The publications lead the reader to conclude that the proposed designation will have no additional effects, beyond the listing of the species. The USFWS asserts that local governments, economic entities, or personal private property rights will be unaffected by the proposed designation of critical habitat for the piping plover.
In preparing comments on the Draft Economic Analysis, one reoccurring thought comes to mind, that is a comment from the 10th Circuit Court, which states that;
“ . . . the fact that the FWS says that no real impact flows from the CHD does not make it so. . . “ Catron County Board of Commissioners v. United States Fish & Wildlife Service, 75 f.3d 1429, 1436 (10th Cir. 1996) as quoted in New Mexico Cattle Growers Association v. USFWS 10th Circuit case 248 F.3d 1277.
The “Draft Economic Analysis” and the “proposed designation” are not treated as National Environmental Policy Act (NEPA) required documents, but instead as requirements under the Endangered Species Act (ESA). They are however, required and regulated by Executive Orders (EO), court decisions, and other regulatory instructions as assigned by the Secretary of the Interior. It is from these perspectives, as well as NEPA regulations, that these publications are scrutinized and evaluated.
On page 2 of the “Environmental Assessment” the USFWS claims they do not need to prepare and environmental analysis outside the Tenth Circuit area, however, because the range of the plover population includes the States of Kansas and Colorado (which are in the Tenth Circuit), “we must complete an analysis.” For this reason the “Environmental Assessment” is analyzed as a NEPA document and is held to those standards.
II. Draft Economic Analysis
A. Baseline Argument
In the preface of the Draft Economic Analysis (EACHD), the USFWS references the New Mexico Cattle Growers Association v. USFWS 10th Circuit case 248 F.3d 1277 (NM 10th Cir.) as rejecting the baseline approach for doing economic analysis. The Draft Economic Analysis even goes so far as to point out that:
“ . . . The court rejected the baseline approach incorporated in that designation, concluding that, by obviating the need to perform any analysis of economic impacts, such an approach rendered the economic analysis requirement meaningless: 'The statutory language is plain in requiring some kind of consideration of economic impact in the CHD phase.' . . .” (Draft Economic Analysis p. P-1)
Two issues related to this reference concern us. In researching the NM 10th Cir. case, the first point that we observed was the fact that the 10th Circuit not only rejected the baseline approach, it expressly rejected “. . . the baseline approach to economic analysis pursuant the 16 U.S.C. § 1533(b)(2) . . ” (NM 10th Cir., IV)
The second point of concern that came out was that while the court did initially state:
'The statutory language is plain in requiring some kind of consideration of economic impact in the CHD phase.” (NM 10th Cir., IV)
It went even further by stating that:
“ . . . because economic analysis done using the FWS's baseline model is rendered essentially without meaning by 50 C.F.R. § 402.02, we conclude Congress intended that the FWS conduct a full analysis of all of the economic impacts of a critical habitat designation, regardless of whether those impacts are attributable co-extensively to other causes. Thus, we hold the baseline approach to economic analysis is not in accord with the language or intent of the ESA . . ” (NM 10th Cir. III §13, Emphasis added)
It is our contention that the USFWS is attempting to obfuscate the actual matters decided in the NM 10th Cir. decision. The Draft Economic Analysis supports this assertion where the USFWS on the very next page describes utilizing two baselines, in defiance of the court’s decision previously referenced. The USFWS claims the analysis incorporates one baseline “ . . that may be ‘attributable co-extensively’ to the listing of the species . .” and the other based on the “ . . . effects of future consultations . . ” (P-2). Neither of these approaches is in keeping with the court’s decision or clarification of the issue - a full analysis of all of the economic impacts of a critical habitat designation regardless of whether those impacts are attributable co-extensively to other causes!
B. Economic Analysis
1. Requirements
“ . . . Congress intended that the FWS conduct a full analysis of all of the economic impacts of a critical habitat designation . . . ” (NM 10th Cir., IV).
A full economic analysis should include, identification, estimation, and a complete evaluation of all impacts to the affected communities, counties, states, tribes and regional economies with respect to:
Direct, indirect and induced economic activities (output, employment, and employee compensation);
Changes in property values (Federal, State, and private);
Property takings;
Regulatory takings;
Water rights impacts;
Business activity and potential economic growth;
Commercial values;
County and State tax bases;
Public works project impacts;
Disproportionate economic burden on societal sections in the affected areas;
Impacts to local customs and cultures;
Costs of Environmental Assessments, Biological Surveys and Environmental Impact Statements borne by the communities, tribes and private citizens, resulting from Piping Plover “Federal Nexus” situations.
2. Takings Analysis
The Constitution of the United States of America, Amendment V, states:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Regulatory takings gave rise to EO 12630 which was issued March 15, 1988, titled, “Governmental Actions and Interference With Constitutionally Protected Property Rights”, signed by President Ronald Reagan. This EO defined “Policies that have takings implications” as:
“ . . . Federal regulations, proposed Federal regulations, proposed Federal legislation, comments on proposed Federal Legislation, or other Federal policy statements that, if implemented or enacted, could effect a taking, such as rules and regulations that propose or implement licensing, permitting, or other condition requirements or limitations on private property use, or that require dedications or exactions from owners of private property . . . ” (Sec. 2 (a))
EO 12630 ordered, “ . . . in formulating or implementing policies that have takings implications, each Executive department and agency shall be guided by the following principles:
“Government officials should be sensitive to, anticipate, and account for . . . governmental actions so that they do not result in the imposition of unanticipated or undue additional burdens on the public fisc” (sec. 3 (a));
“Actions undertaken by . . . regulations imposed on private property that substantially affect its value or use, may constitute a taking of property . . . may amount to a taking even though the action results in less than a complete deprivation of all use or value . . .” (sec. 3 (b));
“ . . . governmental actions that may have a significant impact on the use or value of private property should be scrutinized to avoid unplanned burdens on the public fisc”. (Sec. 3 (e));
“ . . . identify the takings implications of proposed regulatory actions and address the merits of those actions in light of the identified takings implications, if any, in all required submissions . . ” (sec. 5 (b)).
The Draft Economic Analysis fails to address or even consider a “takings” assessment much less any economic assessment.
3. Source Material
“ . . . Section 4(b)(2) of the Endangered Species Act (the Act) requires the Service to designate critical habitat on the basis of the best scientific and commercial data available, after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat . . . “
The key elements to determining economic and other relevant impacts are the best scientific and commercial data available. This information is supposed to be included in the draft for the public to review as well for the ability to have meaningful participation. The information is also to be based on peer reviewed scientific literature that can be researched and scrutinized for accuracy and compliance with standard scientific methodology. After analyzing the EACHD, it was ascertained that just over 60 percent of the cited “literature” were personal communications. While communications with other individuals involved with the research for the candidate species is allowed and understandable, it is not possible to research or verify the assertions claimed by the personal communication.
This is even more problematic when personal communications are the bulk of the cited “literature” used to prop up an assertion related to the candidate species. The determination that just over 60 percent of the cited “literature” can also be described that less than 40 percent of the assertions are verified by documentation. In a court of law, this would be the equivalent to saying that just over 60 percent of the assertions are hearsay. It is doubtful that supporting arguments based on hearsay can win a case in any court of law. To tell the public that the documents supporting the designation of critical habitat after 16 years of studies are built primarily on hearsay is indefensible, inexcusable and totally unacceptable.
4. Historical Data
The USFWS claims to have little historical information on economic costs as a reason to justify using the baseline approach. There are many cases nationwide where critical habitat designation has impacted communities and the USFWS has chosen to ignore or disavow those impacts as related to their actions. These impacts range from timber harvest declines, to reductions in grazing, to irrigation restrictions, to perceived public restrictions on recreation areas. Perceptions of the public is recognized within the EACHD when it states:
“There may be a perceived loss of income by local businesses due to decreased visitation from perceived restrictions”. (EACHD p. 26)
If there are decreased visitations from “perceived restrictions” then the loss of income by the local businesses will be very real, not perceived. Even though there may not be an actual restriction on recreational use, in some areas, because of the public has the perception, there would be very real economic impacts - the airlines have experienced this phenomenon since Sept. 11, 2001.
Furthermore, the USFWS had previously done an economic analysis on the wintering habitat for the piping plover that did identify and, for the most part, evaluate the economic impacts as required by law (Economic Analysis of Critical Habitat Designation for the Piping Plover: Wintering Habitat, April 2000 (CHD 2000)). In it they identified and evaluated the socioeconomic profile of the affected counties (CHD 2000 Exhibit 2-3), the cost scenarios associated with housing developments (CHD 2000 Exhibit 3-3), the county minority and poverty levels (CHD 2000 Exhibit 3-6) and more. This study also refutes the USFWS claim of little historical information about the benefits and economic costs of impacts resulting from critical habitat designation.
5. Impact Analysis
It is stated on page ES-7, paragraph 19, that any modifications to dam operation on the Missouri River “have the potential to have significant economic impacts”. These impacts are never analyzed, estimated, or quantified for meaningful public participation. Two paragraphs later (paragraph 21) the USFWS dismisses these impacts as “…due to the listed status of the species, rather than designation of critical habitat.” It is claimed on page ES-9, paragraph 24, that the benefits of protecting the piping plover may involve benefits stemming from recreation to tourism and other ancillary benefits but that “ . . . estimating such benefits is beyond the scope of this report . . . “ The following paragraph claims that critical habitat designation for the piping plover will lead to minimal economic benefits. Based on what is presented in the Draft Economic Analysis, these allegations are unfounded and uncorroborated by any actual data. This supports the 10th circuit court’s findings as stated earlier:
“ . . . the fact that the FWS says that no real impact flows from the CHD does not make it so. . . “ Catron County Board of Commissioners v. United States Fish & Wildlife Service, 75 f.3d 1429, 1436 (10th Cir. 1996) as quoted in New Mexico Cattle Growers Association v. USFWS 10th Circuit case 248 F.3d 1277.
The EACHD, p. 24 –5.3 Recreation, recognizes the fact that recreation may have minimal additional impacts, however they are never quantified or analyzed as required by NEPA. As previously stated, the USFWS’s perspective on impacts to recreation is passed off as perceived impacts, not minimal additional impacts.
Which is it “perceived” or “additional”?
Shouldn’t these impacts at least be identified and quantified for public comment and justification of minimal impacts?
“Perceived impacts” or restrictions by the public can be real economic impacts.
The previously mentioned modifications to dam operation on the Missouri River in fact were being studied and analyzed. A two-year study done by the National Research Council on the Missouri River identifies significant management changes as supported by the USFWS, the Environmental Protection Agency (EPA) and the Army Corp of Engineers (ACE). This study shows that the USFWS does have knowledge of the significant economic costs and other relevant impacts to the affected communities within the designated area of the Piping Plover habitat. The report on this study demonstrates the magnitude of these impacts when it states that:
“ . . . a return to a more natural ebb and flow, an undertaking that could cause flooding and entail moving entire communities . . .”.
D. Estimated Economic Analysis
Having read the three documents related to the designation of critical habitat for the piping plover, we could only find inferences as to who is expected to be impacted by any management changes associated with critical habitat designation. These include but are not limited to hydrologic associated activities, such as: drainage activities, flowage controls, hydropower, irrigation, construction and maintenance of dams, bridges and marinas. None of these activities were evaluated or referred to in the economic analysis. Because, within Nebraska, the majority of the land within the proposed designation is non-federal land, and the obvious fact that agriculture would be an industry with additional impacts, we chose to analyze a loss of production to agriculture in three separate counties within Nebraska. The estimated direct loss to the economies of these three counties is only an estimate, due to the lack of analysis by the USFWS.
The reason for this analysis is to show that an affect upon one industry will have additional impacts upon other industries within that economy. Therefore, an “insignificant” impact to a single industry could have “significant” impacts to the county economy. With the use of an Input-Output (I-O) model we are therefore able to estimate these additional impacts to all of the industries within that economy. The I-O model used for this analysis is the IMPLAN model, with purchased data sets for the three counties from Minnesota IMPLAN Group, Inc. (MIG). This model does have its deficiencies; it uses national coefficients in many cases and is not specific for Nebraska. Also MIG will openly acknowledge that Agriculture is the weakest portion of the model, due to the lack of federal reporting. However, in analyzing the impact to an economy it is useful to see how the industries within an economy interact and depend upon each other. Economic impacts include: Output - the value of production (in dollars) of an industry, Employment - the number of jobs within the industry, and Value Added - employee compensation, proprietary income, other property income, and indirect business taxes. IMPLAN identifies the indirect impacts (inter-related industry impacts) and induced impacts (impacts due to household spending) for each direct impact.
The results from an I-O model are the impacts to sectors within the economy and does not analyze or consider any social or other human dimension impacts. The results do not evaluate the marginality of an industry or the profitability of that industry (i.e. would the loss of 20% of irrigation water cause the entire farm to shut down or if electric expenses were to increase then profit would decrease).
For this analysis, we assumed two scenarios, a loss or reduction of 20% and 40% in the agriculture sector. These losses are only estimates and were arbitrarily conceived to demonstrate the additional impacts upon county economies.
In Merrick County, Agriculture is the largest industry in terms of output, with over 45% of the total output in the county. A 20%, or a -$28,814,000 reduction in output for this industry, would result in a total estimated loss within the county of $43.4 million in output, 309 jobs, and $13.6 million in Value Added. The $43.4 million estimate constitutes almost 14% of the total economic output for Merrick County. These figures could be higher if the 20% reduction contributed to several farms going completely out of business. (20% and 40% Reduction Tables, Appendix A)
In Colfax County, Food Processing is the largest industry in terms of output, with over 65% of the total output in the county. A 20%, or -$33,266,402 reduction in output for this industry, would result in a total estimated loss within the county of $50.1 million in output, 321 jobs, and $12.9 million in Value Added. The $50.1 million estimate constitutes almost 5% of the total economic output for Merrick County. These figures could be higher if the 20% reduction contributed to several farms going completely out of business. (20% and 40% Reduction Tables,
Appendix A)
In Dawson County, Food Processing is the largest industry in terms of output, with over 45.7% of the total output in the county. A 20%, or -$70,795,200 reduction in output for this industry, would result in a total estimated loss within the county of $121.9 million in output, 616 jobs, and $26.5 million in Value Added. The $121.9 million estimate constitutes almost 6% of the total economic output for Merrick County. These figures could be higher if the 20% reduction contributed to several farms going completely out of business. (20% and 40% Reduction Tables, Appendix A)
Contained within Appendix A is: a table with the current output, employment, and value added of each industry in the county (sorted by output), tables containing the data derived from the 20% and 40% reduction model runs (sorted by total impact), and overview tables of the top 10 output industries and how they would be impacted.
D. Other Impacts
The Piping Plover Draft Economic Analysis identifies the probability that there will be additional costs and/or delays in public and private projects (page ES-4) within the proposed critical habitat but does not evaluate those costs. With additional costs and/or delay it is probable that these factors would potentially lead to decreased economic development, within these areas, because industries will establish or expand into non-affected areas where the red tape and cost will be minimal.
The USFWS did acknowledge on page ES-4 that
“ . . . most of the areas proposed for designation as critical habitat for the plover have not evidenced significant population or economic growth in recent years. . .”
They did not, however, provide any references for making this claim, nor did they attempt to identify the time frame for which this allegation occurs.
Was this stagnation of population and economic growth a result of the 16 years of listing restrictions?
What portions in which states have experienced this effect?
Would designation of critical habitat, which is partially unoccupied, exasperate this trend?
What will be the cost and human impacts of moving entire communities?
The answer to these questions are not presented nor evaluated, therefore, making it impossible to determine how this assertion of no significant impacts was determined. An assertion that is not certified is not a fact.
The Draft Economic Analysis identifies throughout the possibility of additional consultations, reinitiated consultations, delays in projects, and significant economic impacts, but concludes, “… the rule will not have a significant economic impact …” and “ . . . In the absence of significant costs associated with the ruling, no environmental justice concerns exist . . ”
Economic Impacts are dismissed within the EA with a statement that “ . . . The Service is currently preparing a draft Economic Analysis which will further address the effects of the proposed action on recreation. This information will be available for public review and comment and will be incorporated into the final Environmental Assessment . . . ”. As previously commented the EACHD also failed to “address the effects”.
Isn’t the draft were the public should have the “full picture” to review and comment?
Is the Economic Analysis a NEPA document, which should analyze the economic impacts of each alternative or is it the “Economic Analysis” required document by the ESA on proposed designation of critical habitat? – If it is a NEPA document then it should have analyzed all of the alternatives.
The EACHD, p. 24 - 5.4 Agriculture, also identifies that Agriculture may have minimal additional impacts.
Shouldn’t these impacts at least be identified and quantified for public comment and justification of “minimal” impacts?
Restrictions that change agricultural management practices and infrastructure are real, quantifiable impacts.
What will be the impacts to water rights and the water rights holders?
Within the EACHD, p. 25, the USFWS states:
“We recognize a perception may exist within some segments of the public that any of the action alternatives designating critical habitat will severely limit property rights . . .”
Given the history of other interactions with private property and critical habitats, this is not a perception it is a fact.
What are those impacts and why are they not evaluated according to regulation standards?
If the public has a perception of infringements upon private property rights, then economic growth is stymied and there will be economic and socioeconomic impacts to these areas.
III. Draft Environmental Assessment Draft Environmental Assessment and
50 CFR Part 17 Proposed Designation
A. Endanger Species Act and Critical Habitat
The ESA defines critical habitat as
“ . . . the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of this Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary that such areas are essential for the conservation of the species . . “
This definition does not say that critical habitat is the area where a species is located, it is a specific area that the species occupied at the time it is listed and are found those physical or biological features essential to the conservation of the species and may require special management considerations. This definition requires the USFWS to identify several components in defining critical habitat.
1. Identify specific areas occupied by the species at listing.
2. Identify the physical or biological features essential to the conservation of the species;
3. Identify the presence or absence of those essential features;
4. Identify the special management consideration (these are the economic impacts).
E. Environmental Assessment Impact Analysis
Issues concerning the Environmental Assessment (EA) are listed as they were identified and are followed by the questions they raise:
- The specific areas within the geographical area occupied by the species, at the time it is listed
Were the proposed areas within the geographical area occupied at the time of listing?
Are the areas proposed for designation essential for survival?
What is the minimum area required for the survival and how are the areas selected essential?
– Physical and biological features
“On rivers the primary constituent elements include - sparsely vegetated channel sandbars, sand and gravel beaches on islands, temporary pools on sandbars and islands, and the interface with the river.”(Page 7 of the EA) (Referred to as habitat types within the document.)
Do all areas selected for CHD currently or at the time of listing have all of the physical and biological features essential for the Piping Plover?
Do these “primary constituent elements” comprise the specific physical and biological features essential to the survival and recovery of the species?
What kind of food, minerals, and other nutritional or physiological requirements are needed?
What kind of cover or shelter does the species require for survival?
Are they merely geographical definitions of where the bird will nest or are they actual biological elements?
What information was utilized in the determination that unoccupied areas are essential for the conservation of the piping plover?
In the Middle Rio Grande Conservation District (MRGCD) v. Babbitt (New Mexico District Court, Nov. 21, 2000), the court stated:
“As it stands, the final rule’s determination of “primary constituent elements” is insufficient. The terms are too vague to provide a standard, much less an understanding of what the protected species requires or how the river should be managed and protected. The terms give little indication what FWS considers absolutely essential to the silvery minnow’s survival, how much water might be regarded as “sufficient”…” they also state that “ . . . the final rule speaks only in broad terms not useful in limiting designation of critical habitat to the most essential areas and not helpful in understanding what the silvery minnow actually requires to return from the brink of extinction. To a large extent, stating” primary constituent elements” in broad and general terms is what has enabled FWS to minimize the need to examine any specific portion of the silvery minnow’s habitat. The listed “primary constituent elements” are so characteristic of rivers, in general, it is not surprising all three elements can be found, or be potentially available, throughout the entirety of the Middle Rio Grande.” The Rio Grande elements included “sufficient flowing water”, “water of sufficient quality”, and “water of sufficient quantity”
Are the USFWS terms of primary constituent elements, along rivers, for the piping plover CHD also as vague and broad in terms not useful in limiting designation of critical habitat to the most essential areas?
What does the piping plover actually require to return from the brink of extinction?
Page 5 of the EA states:
“Critical habitat should already have the features and habitat characteristics that are necessary to sustain the species.” “… we will not designate areas that do not now have the primary constituent elements….”.
This is in total contradiction to the Proposed Designation of Critical habitat when it states that:
“The entire length of mainstem reservoirs was included even though small areas of reservoirs may never contain the primary constituent elements due to high banks and steep slopes. We did not exclude these areas because it would require a minimum of 2 years to collect data necessary to map at that detail.”
Page 6, Section 3.3 of the EA states:
“Each Action Alternative includes designation of critical habitat in areas believed to contain the physical and biological features upon which the northern Great Plains population of piping plovers depends.”
It is believed the “primary constituent elements” are contained within the proposed designation areas? After sixteen years of research and the development of a recovery plan, since the listing, the USFWS cannot make this claim with certainty?
With this broad assumption of the essential elements it is then possible to designate broad areas as critical habitat, without consideration of “the best scientific and commercial data”, as any parcel of land could fit the USFWS description of critical habitat.
This assertion by the USFWS is with complete disregard for the Endangered Species Act (Sec.3 (5)(a) when it states “specific areas … which are found those physical or biological features (I) essential to the conservation of the species . . .”
– Require special management considerations
What special management considerations are required for the selected critical habitat areas?
If there are not any special management considerations then the area doesn’t meet the definition of critical habitat?
Particularly in Nebraska, where nearly 100% of the proposed critical habitat is non-federal land, there has to be “special management consideration”, but these considerations are never identified or presented for public comments. This promotes uncertainty as to what special management considerations might be imposed on private lands with a Federal Nexus.
The geographic area available for designation is constrained by the very definition of critical habitat and the fact that “critical habitat shall not include the entire geographical area, which can be occupied by the threatened or endangered species.” It is these specific areas that are to be evaluated for economic and other relevant impacts. If the USFWS fails to fully analyze the total impacts and benefits of designation of these specific areas, they cannot analyze the option of excluding any area.
“ . . . The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweight the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.” (ESA Sec.4 (b)(2)).
Page 3 of the EA demonstrates that the entire proposed area within Nebraska is not occupied
“ . . . Some breeding records do exist for … counties along the Missouri, Loup, Niobrara, Elkhorn, and Platte Rivers in Nebraska.” “In Nebraska, piping plovers can still be found on sandbars along the Niobrara, Loup, and Platte Rivers, but habitat has been reduce on the Platte River . . . “
This last part of this quote indicates that these three rivers are the only areas in Nebraska where the habitat has been occupied and that the Missouri and Elkhorn rivers are unoccupied. The Missouri River segment Nebraska shares with South Dakota has been identified and weakly evaluated for CHD on the South Dakota side, but not at all on the Nebraska side.
Is this to say that birds somehow do not cross the river or political boundaries onto the Nebraska side?
The USFWS attempts to distract the uninformed reader into believing that all of the economic impacts are associated with the listing of the Piping Plover. This is done with a constant theme that obfuscates the importance of designated critical habitat and intent of Congress. Senator Jake Gam a sponsor of the amendment, including economic analysis into designation, stated that;
“ . . . the designation of critical habitat is more important than the designation of an endangered species itself. In many cases, it will not be until habitat is declared to be critical to the continued existence of an endangered species that it will have impacts in the real world . . . ”(MRGCD v. Bruce Babbitt, Nov. 21, 2000)
Does the FWS truly believe that listing a species will provide the total protection required to recover (delist) a species, or is it just an excuse to pacify the public until they decide to use the “heavy hammer” of the ESA? If designation of critical habitat is that unimportant, then why would Congress, in the ESA require that the Secretary shall concurrently, with listing, designate critical habitat for the species. NM 10th Cir., III §7 identifies this ongoing problem in this statement,
“ . . .The root of the problem lies in the FWS’s long held policy position that CHDs are unhelpful, duplicative, and unnecessary . . . Further, while we have held that making a CHD is mandatory once a species is listed . . . the FWS has typically put off doing so until forced to do so by court order . . ”
C. Common Document Issues and Impacts
All three CHD documents negate the importance and protection provided by the designation of critical habitat. They lead the reader to believe that the species has all the protection required for recovery, due to the listing and the multiple species consultations within the proposed critical habitat area. If this were true then the courts would not have ordered the designation of critical habitat, the Endangered Species Act would not require the designation of critical habitat and Senator Jake Gam would not have explained the elemental purpose of critical habitat designation as he did.
Even as recently as December of 2001, the 9th Circuit Court made a point on the importance of the specificity of critical habitat as being the mechanism for protection and not the listing itself as being the means for determining conditional land use:
“ . . . Additionally, the ESA provides for the designation of critical habitat outside the geographic area currently occupied by the species when “such areas are essential for the conservation of the species.” . . . Absent this procedure, however, there is no evidence that Congress intended to allow the Fish and Wildlife Service to regulate any parcel of land that is merely capable of supporting a protected species . . . Where the agency purports to impose conditions on the lawful use of that land without showing that the species exists on it, it acts beyond its authority in violation of 5 U.S.C. § 706 . . .” (9th Circuit decision on Arizona Cattle Growers’ Association v. USFWS, BLM, and Southwest Center for Biological Diversity, December 17, 2001)
In contrast to this court decision, the Draft Economic Analysis attempts to again obfuscate the issue by claiming that the “ . . . listing of the piping plover is the most significant aspect of baseline protection as it provides the most protections . . . “ (2.2.2 Listing § 60, p. 2-7). Other examples of this line of thought asserted by the USFWS in the Draft Economic Analysis are also found in:
§ 119, p. 3 -16 “ . . . The presence of other listed species within the proposed critical habitat units raises the baseline level of scrutiny applied to activities in these areas . . . Designation of critical habitat for the species is unlikely to change the level of consultation activity already occurring . . . ”
§ 146, p. 3 – 25 “ . . . Based on the strong consultation record involving the plover in Nebraska, it is estimated that all of the future consultation activity involving the plover within the state will be an extension of the baseline protection afforded the plover as a listed species, and not as a result of critical habitat designation (i.e., these consultations will occur regardless of the designation) . . . ”
Page 21 of the EA states that:
“ . . . activities that would likely destroy or adversely modify critical habitat would almost always result in jeopardy to the species, particularly when the action area is occupied by the piping plover. Therefore, implementation of the Proposed Action would result in no environmental consequences when compared to the No Action Alternative in occupied areas . . . ”
Adverse modification of critical habitat, in most instances, will result in a jeopardy decision, but does a jeopardy decision by its own merit result in a decision of adverse modification? If not, then critical habitat adds significant consultation requirements and environmental consequences when considering that diminished or regulated activities will affect the environment (non-use or limited use, compared to current use, will have environmental consequences good or bad).
“ . . . Designation of critical habitat may in some cases provide some benefits to a species by alerting Federal agencies to situations when Section 7 consultation is required. This may be particularly true in cases where the action would not result in direct mortality, injury or harm to individuals of a listed species (e.g. an action occurring within a critical habitat area when the species is not present) . . . ”
“Take” contains a definition of habitat modification and can only be considered a “take’ if that action results in the direct injury or death of the species.
This statement contradicts the recent Arizona Cattle Growers 9th Circuit case findings.
Other species are listed and have critical habitat designated within the proposed designation (Whooping Crane – there is critical habitat designated within a portion of the proposed piping plover critical habitat, p. 27 paragraph 3). If these habitats overlap the proposed habitat, then there is no need to designate these areas because:
“ . . . The objectives of designating critical habitat include the protection of natural communities and ecosystems, minimization of fragmentation and maintenance and restoration of the natural landscape patterns and connectivity of wildlife habitats, promotion of native species and avoidance of non-native species introduction, protection of rare and ecologically important species . . . ”
If this is how the USFWS wants to define critical habitat, non-specific to species, then to designate an area already designated would only be a duplication of identical protections and unnecessary. However, Congress wrote the ESA to mean specific areas, not non-specific areas (Ariz. 9th Cir.).
C. Identified Misinterpretations of the USFWS
In the same discussion on page 31764 of the FRPD, the USFWS acknowledges that Section 4 of the ESA requires the designation of critical habitat at the time of listing based on what is known at the time of designation. What is not mentioned is the requirement that “ . . . If the Secretary (of the Interior) finds that critical habitat is indeterminable at the time of listing, the Secretary may delay the designation by one year . . . “ (Senate Report 106-126). Several court cases inculpate the USFWS for not designating critical habitat until ordered to do so by the courts. Senate Report 106-126 recognizes this inaction on the part of the USFWS as well:
“ . . . numerous lawsuits have been recently brought against the Service for failure to designate critical habitat. According to the Fish and Wildlife Service, currently 17 active lawsuits are pending, with 15 already decided all but one against the Service . . . and prospective challenges on critical habitat for another 123 species are on the horizon . . . Problems with critical habitat have been chronic over the life of the ESA . . . “The designation of critical habitat has failed on two grounds. First, it is not being designated. Second, it has improperly delayed listings." As a result, Congress enacted the strict timetables for listings and designations that exist in the law today. As the recent statistics demonstrate, neither of these amendments to the ESA have achieved their desired effect . . . ”
Irrespective of the excuses for the failures to designate critical habitat, the point is that the USFWS has a chronic pattern of ignoring the ESA requirements concerning CHD claiming insufficient time to collect needed information.
Related to this problem is the USFWS’s claim of the CHD being duplicative of the protections provided by the jeopardy standard under the listing action. As the honorable Jamie Clark, director of the USFWS, stated during a hearing before the Subcommittee on Fisheries, Wildlife and Drinking Water on May 27, 1999:
" . . . for almost all Federal actions, the adverse modification of critical habitat and jeopardy to the species are the same, resulting in critical habitat designation being no more than regulatory process that duplicates the protection already provided by the jeopardy standard . . . “ (S. Rep. 106-126)
This comment was followed in the S. Rep. 106-126 by:
“ . . . A recent report by the Congressional Research Service notes the importance of critical habitat and comments that the Service's conclusions that designations provide little additional protection to listed species and consumes significant funding and staff time "seem to have resulted from how the FWS has interpreted certain aspects of the ESA." See CRS, The Role of Designation of Critical Habitat under the Endangered Species Act, July 16, 1999 . . . “
S. Rep. 106-126 and recent court cases point out that the ESA interpretations by the USFWS are wrong, have over stepped their authority and not followed the intent of Congress. As pointed out in Ariz.9th,
“ . . there is no evidence that Congress intended to allow the Fish and Wildlife Service to regulate any parcel of land that is merely capable of supporting a protected species . . . Where the agency purports to impose conditions on the lawful use of that land without showing [*39] that the species exists on it, it acts beyond its authority in violation of 5 U.S.C. § 706 . . . “
Furthermore, S. Rep. 106-126 points out that the intent of Congress concerning CHD was to have the CHD process identify and consider the information needed for the conservation needs and special management consideration for the species and its habitat, not the listing process. The report recognizes this in that
“ . . . even the best available data at the time of listing are often poor because the data are generally ascertained in developing the recovery plan for the species. Consequently, more scientifically sound decisions regarding designation can be made at the time of recovery planning than at the time of listing . . . it (Congress) envisioned that the designation may have certain impacts on the area so designated, and further observed that protection of the habitat of listed species was the key to protection of the species themselves “
The report is included in the appendix for further reading.
D. Piping Plover Chronology and USFWS Actions
On page 13763 of the FRPD, the chronology of the plover history is explained in regard to Previous Federal Actions. This history begins with a listing date of 1985 and ends with a CHD order in 2001. Within this 16 year time frame is a discussion of the litigation involved in forcing the USFWS to make a “rushed” designation. The USFWS has obviously had plenty of time to develop surveys and identified locations of the piping plover as to the relevance of habitat locations that are essential for the survival of the species. The USFWS attempts the claim of insufficient time due to a short court-ordered deadline (p. 31764) and that they often do not have sufficient information to identify all areas of critical habitat. On page 31766 the USFWS claims “ . . The entire length of mainstream reservoirs was included even though small areas of reservoirs may never contain the primary constituent elements due to high banks and steep slopes. We did not exclude these areas because it would require a minimum of 2 years to collect data necessary to map at that detail . . ”
Have not the previous 16 years given the USFWS ample time to accomplish this? With all of the cited research in the Proposed Rule, were not the biologists accumulating this information in anticipation of the CHD? They were able to make the assertion that an increase from 1.25 to 1.7 chick fledged per pair would reach a significant probability of plovers persisting for the next 100 years (p. 31761) and we are to believe they could not accomplish mapped specificity in the 16 years? (Which is a requirement of CHD as pointed out in Middle Rio Grande v. Bruce Babbitt, 2000.)
In the EA, P. 1- 2.0 Need for Action, it states, “ . . . The need for this action is to comply with Section 4 of the Act . . . “ which requires designation of critical habitat, concurrently with the listing of the species.
In the EA, the proposed alternative B includes five areas with portions of four rivers in the States of Montana, North Dakota, South Dakota, and Nebraska. These points and issues were identified:
1. Missouri River to Ponca State Park Nebraska.
The Iowa reach of the Missouri River, plovers exist on fly ash sites- currently not believed to be in need of special management and, therefore, do not meet the definition of critical habitat.
What happens if these areas acquire “primary constituent elements”?
Why is the Nebraska portion of the Missouri River not identified or analyzed?
2. Portions of the Platte, Niobrara, and Loup Rivers
“ . . . We did not map critical habitat in sufficient detail to exclude all developed areas such as mainstem dam structures, buildings, marinas, boat ramps, bank stabilization and breakwater structures, row cropped or plowed agricultural areas, mines, roads and other lands (e.g., high bank bluffs along Missouri River reservoirs) unlikely to contain primary constituent elements essential for northern Great Plains piping plover conservation. These features will not themselves contain one or more of the primary constituent elements. Therefore, Federal actions limited to those features would not trigger a Section 7 consultation, unless they affect species or primary constituent elements in adjacent critical habitat . . . “
15 years is not long enough to develop “sufficient detail” to exclude developed areas?
Row cropped or plowed agricultural areas are such small areas that they cannot be identified for mapping purposes?
Even though an area doesn’t contain one or more of the primary constituent elements, the area will still be designated as critical habitat? What makes these areas more important than the fly ash sites, which do not meet the definition of critical habitat, or the sand pits on page 13.
It is possible to separate the primary constituent elements and consult only on the individual elements?
Section 7 consultation is required on an area if it affects elements in adjacent critical habitat? What if those areas do not carry a Federal Nexus?
Is the public to believe that with “regular surveying efforts beginning after 1980”, the completion of a Recovery Plan and the 7 year process to revise the recovery plan, there has not been enough time to fully analyze and identify the areas that contain the “primary constituent elements”.
To further illustrate that this is not an isolated occurrence, consider the 9th Circuit Court decision (closing statement by Judge William Alsup) on critical habitat for the Red-Legged Frog, which inculpated the USFWS:
“Three years have passed since the Service declined to designate the frog’s habitat as critical. Two years have passed since the Ninth Circuit’s decision in Natural Resources. More than a year has passed since defendants were put on notice of this legal challenge . . .The Service has had ample opportunity to reevaluate its decision of its own accord; now it must do so by order of the Court. The Service shall make a prudency determination by August 31, 2000, and issue a final rule by December 29, 2000". (US Dist. Ct., N. Dist. Cal., No. C 99-01461 WHA)
Another question that arises is the extent of “Federal Nexus” on private property, this question is of particular interest to the state of Nebraska which is almost 100% nonfederal land proposed for designation. In paragraph 10 the Draft Economic Analysis states “ . . . Identified whether a Federal nexus to expected economic activities in these units exists . . . ”, but this identification never materializes. The topic of a Federal Nexus, which seems to be a gray area with fuzzy boundaries, is presented as distinct with a definition of “requires Federal permits, Federal funding or another form of Federal involvement”. But how far reaching does the Federal Nexus extent to a project or management of private property.
According to the “Matrix of Current Missouri River and Reservoir Uses and Authorizing Federal Agencies” and “Matrix of Current Nebraska River Uses and Authorizing Federal Agencies” tables almost all of the current uses have a federal connection, including agricultural spraying with a federal connection to the EPA. Given these examples it is obvious that the USFWS can develop a federal nexus whenever they want to on any project. Could borrowing money from a bank that is FDIC insured constitute a federal nexus as pointed out in the USGWS motion for stay, Feb. 13, 1998 IV(A)(2)(b)?
Although private property owners are subject to “take” provision of Section 9 of the ESA, forcing property into section 7 consultation allows the USFWS to have a say in the property’s management, the ultimate blessing on the property, and induce additional costs, delays, and modifications to non governmental economic enterprises. These economic impacts are imposed upon local economies and governments with all of the assumed intrinsic benefits being reaped by a regional or national population. We would contend that given the proper incentives, private land owners and the free market would provide a greater protection to T&E species than any “I know best” and “because I say so” federal agency.
C. Other Issues Not Addressed
On page 31761 of the proposed designation, in the geographic range section, is the claim that:
“ . . . Along the central reach of the Platte, this loss of habitat has forced most plovers to nest on sand and gravel mining spoil piles (Sidle and Kirsch 1993). “
On page 31762 of the proposed designation, in the ecology section, is also the claim of
“ . . . In addition to primary nesting habitat types, piping plovers also may use sand pits and ash ponds, which often mimic natural habitats (Service 1988, Corn and Ambruster 1993, Lackey 1994).”
These areas, while identified as temporary uses for nesting, are never the less identified as nesting locations. It is expressed in the Critical Habitat Designation draft (CHD) that these areas do not qualify for designation consideration as they lack the primary elements required for critical habitat. The Proposed Rule does, however, express that should an area acquire the primary elements, the USFWS may consider proposing them as critical habitat if they obtain the primary constituent elements needed for the piping plover in the future. Does that possibility hold true for the sand and gravel pits? Were these potential impacts evaluated for takings?
On page 31765 of the proposed designation, a reference under Primary Constituent Elements was made concerning water cycles and the impacts to breeding pairs. The assertion that plovers are dependent on the wet-to-dry cycles for nesting indicates potential water management changes. Is the USFWS implying that water management in critical habitat is to be one of the special management considerations? What would those impacts be? Were these impacts to water rights and relevant water rights owners evaluated? Given the recent events related to water control and endangered species in the Klamath basin, Oregon, it is unreasonable to expect there to be no impacts to water users? Why was that not evaluated or even considered?
Page 31775 identifies activities on Federal land that may effect breeding populations of plovers. These include but are not limited to hydrologic associated activities such as drainage activities, flowage controls, hydropower, irrigation construction and maintenance of dams, bridges and marinas. None of these activities were evaluated or referred to in the economic analysis. A recent two year study report by the National Research Council points to the potential for impacts to river communities and farmers as a result in management changes proposed by the USFWS due to endangered species such as the piping plover. Barge traffic, flood control, hydropower and relocation of communities were cited as the activities to expect the most significant impacts. Yet, none of these impacts were discussed or evaluated in the draft economic analysis. Why not? Are we to expect no demographic or economic impacts from these management changes? What are the changes to the infrastructure that supports these communities and enterprises?
In relation to the hydropower energy impacts and diminished barge traffic forcing farmers to use more energy based overland transportation to move grains and other farm products; not only were these impacts not evaluated, they were not even identified or addressed. On FRPD page 31778, Executive Order 13211 was identified as requiring evaluation of regulations that significantly affect energy supply, distribution, and use. The USFWS claims that no impacts are expected and thus, this will not be evaluated. Are we to believe that impacts to hydropower and transportation shifts away from barge traffic will not cause impacts to energy supplies, distribution and use? How the USFWS reached this conclusion is unsubstantiated by any information presented in any of the documents produced concerning the piping plover, thus again the USFWS has failed in doing what is required of the agency.
Other considerations that are evident to us in the FRPD are the minimizing and cursory notations of impacts to the human dimension, environmental justice, economic structures, property takings issues and civil justice reforms. These issues were not addressed properly nor were they evaluated at any level in the process of CHD as required by the many NEPA regulations, Executive Orders, USFWS regulations and court decisions. The USFWS has again demonstrated total disregard for any of the ESA regulations, intent of Congress, orders of the courts and orders of the executive branch. It is very apparent that the courts, at taxpayer expense, will address the plover issue, and all that was not done.
G. Human Dimension
Within the “Human Environment” section of the EA, uses briefly identified within the proposed designated area include farming, livestock grazing, hydroelectric facilities, municipal water supply, and a variety of recreational activities. None of these human activities, their affects on habitat or the affects of the designation on the uses are evaluated in any manner. The USFWS recognizes that:
“The designation of critical habitat directly affects only Federal agencies . . Individuals, organizations, States, local and Tribal governments, and other non-Federal entities are only affected by the designation of critical habitat if their actions occur on Federal lands, require a Federal permit, license, or other authorization, of involve Federal funding . . ”
These statements are misleading; they never mention “private property” with a Federal Nexus. Federal permits, licensing, and funding are stated as being affected. These create a Federal Nexus on private lands and the statement should be clear with respect to private property impacts, so that the public has no question. A Federal Nexus on private property creates a direct impact and financial burden on private property owners.
The EA provides only a short, incomplete analysis as to the human environment. If this assessment is supposed to provide “ . . . sufficient evidence and analysis of impacts to determine whether to prepare an Environmental Impact Statement (EIS) or Finding Of No Significant Impact (FONSI) (40 CFR 1508.9) . . . ”, then one would expect some sort of analysis or a sound defensible justification of the claim that there are no impacts to the human environment.
Within the economic activity section of the Draft Economic Analysis, population changes over the last decade are discussed, immediately followed by the conclusion that “ . . . This trend reflects both the rural and nature of these counties as well as the general decline in small agricultural production throughout this portion of the western U.S. . . . ” The source of population changes was the U.S. Department of Census. If the agency is supposed to use the “best data available” then in estimating a decline in agriculture the U.S. Department of Agriculture, the State Department of Agriculture and their appropriate publications should be used.
In Exhibit ES-1 of the Draft Economic Analysis, Nebraska’s critical habitat private ownership share is identified as being 97.2% (470 miles) on the Niobrara, Loup and Platte Rivers with none of the Missouri River ownership identified specifically. In the following Exhibit ES-2, Nebraska Rivers are assessed only 5 formal and 38 informal Plover consultations per year that were expected to incur consultation costs. What those Nebraska specific costs will be to the private sector are not identified. It is difficult to believe that a citation of 97% private ownership on 470 miles of river would not impose significant financial cost upon those private landowners.
Paragraph 13 on page ES-6 claims that each informal consultation (for all of the areas) will cost $1,500 with formal consultations costing approximately $16,300 each. Footnote 3 (an unreferenced citation) on page ES-6 claims 25.5% of the cost would be to private applicants, or $382.50 and $4,156.50 respectively. Examining Exhibit 2-1, it is claimed that the average income per capita for those identified affected Nebraska counties ranges from $5,666 to $29,240. Checking the U.S. Census Bureau Poverty Thresholds for 2000, a weighted average poverty threshold for a family of 4 was $17,603. Are we to believe that the private landowner families below poverty or near poverty are not going to be economically impacted by those annual consultation costs? Who is going to bear this disproportionate burden for the benefit of the public at large? What is their minority status? Is this potential burden on a threshold family going to force them to sell their land and move as a result?
The human dimension analysis regulation was enhanced by EO 12898 (signed by President Clinton, February 11, 1994) which ordered that each agency shall:
Make achieving environmental justice part of its mission by identifying and addressing disproportionately high and adverse human health or environmental effects of its programs, policies and activities on minority populations and low-income populations in the United States (sec. 1-101);
Develop an agency-wide environmental justice strategy . . that at a minimum ensures greater public participation (sec. 1-103 (a)(2));
Collect, maintain, and analyze information assessing and comparing environmental and human health risks borne by populations identified by race, national origin, or income (sec. 3-302 (a));
Use this information to determine whether their programs, policies, and activities have disproportionately high and adverse human health or environmental effects on minority populations and low-income populations (sec. 3-302 (a));
Collect, maintain and analyze information on the race, national origin, income level, and other readily accessible and appropriate information for areas surrounding facilities or sites expected to have a substantial environmental, human health, or economic effect on the surrounding populations, when such facilities or sites become the subject of a substantial Federal environmental administrative or judicial action (sec. 3-302 (b));
Make such information available to the public, unless prohibited by law (sec. 3-302 (b));
Work to ensure that public documents, notices, and hearings relating to human health or the environment are concise, understandable, and readily accessible to the public (sec. 5-5 (c)).
EO 12898 was further enhanced by a memorandum signed by US Department of the Interior (DoI) Secretary Bruce Babbitt, August 11, 1994, and further enhanced by Environmental Compliance Memorandum No. ECM95-3, signed May 30, 1995, instructing DoI agencies to:
“ . . . consider the impacts of actions on minority and low-income populations and communities, as well as the equity of the distribution of benefits and risks of those decisions . . . henceforth all environmental documents should specifically analyze and evaluate the impacts of any proposed projects, actions or decisions on minority and low-income populations and communities, as well as the equity of the distribution of the benefits and risks of those decisions”.
Environmental Justice, as summed up by the US EPA in their Environmental Justice Workshop, is simply:
“ . . . the fair treatment of people of all races and incomes with respect to the development of, implementation, and enforcement of environmental laws, regulations and policies. Fair treatment implies that no group of people should shoulder a disproportionate share of negative environmental impacts resulting from the execution of environmental programs.”
ECM95-3 further states that:
“ . . . the environmental document should clearly evaluate and state the environmental consequences of the proposed projects, action or decision on minority and low-income populations and communities in the environmental document”.
There was no effort to evaluate economics in the Draft Economic Analysis as required by the ESA (other relevant impacts), EO 12898 (Environmental Justice) or the Department of the Interior’s own memo ECM95-3 on Environmental Justice.
H. Regulatory and Economic Considerations
As a result of the myopic approach in the EACHD, an analysis has not been done in any respect that can be evaluated with certainty. This has denied the public meaningful participation as ordered by Executive Order (EO) 12866 Regulatory Planning and Review, issued by President Clinton, which is summed up in his opening statement (signed September 30, 1993):
“The American people deserve a regulatory system that works for them, not against them: a regulatory system that protects and improves their health, safety, environment, and well-being and improves the performance of the economy without imposing unacceptable or unreasonable costs on society; regulatory policies that recognize that the private sector and private markets are the best engine for economic growth; regulatory approaches that respect the role of State, local, and tribal governments; and regulations that are effective, consistent, sensible, and understandable. We do not have such a regulatory system today.”
EO 12866 orders that each agency shall:
Consider incentives for costs of enforcement and compliance, flexibility, distributive impacts and equity (sec. 1(b)(5));
Seek review of appropriate State, local and tribal officials before imposing regulatory requirements (sec. 1(b)(9));
Draft its regulations to be simple and easy to understand, with the goal of minimizing the potential for uncertainty and litigation arising from such uncertainty (sec. 1(b)(12)).
None of the Sec. 1(b)(5) costs were addressed in the Draft Economic Analysis and the potential for uncertainty arising from the Draft Economic Analysis is not minimized. In paragraph 44 under information sources, State, Tribal, and local agencies are listed as sources through communications with personnel. However, throughout the entire document, the only cited sources of communication are with USFWS personnel and Federal employees.
EO 12866 also states that:
“ . . . agencies should assess all costs and benefits of available regulatory alternatives, including the alternative of not regulating . . “.
It is unknown what cost and benefit analysis was used to determine the conclusion that the rule will not have a significant economic impact or that any other alternatives were even considered. EO 12866 also states that:
“Each agency shall base its decisions on the best reasonably obtainable scientific, technical, economic, and other information concerning the need for, and consequences of, the intended regulation.” (Sec. 1(b)(7))
Without the required scientific data and related analysis, the public cannot meaningfully evaluate the proposed Draft Economic Analysis. This violates EO 12866 by not providing “ . . . the public with meaningful participation . . ” (Sec.6 (a)) and “ . . . regulations that are effective, consistent, sensible, and understandable . . .”
To further illustrate the point that the USFWS is misleading, unclear, and dismisses the comprehensive economic analysis of critical habitat in the EACHD, paragraph 165 of the analysis states “ … any modifications to the operations of dams and reservoirs on the Missouri River system have the potential to have significant economic impacts.” These impacts are never quantified and the entire “significant economic impacts” are dismissed with the statement that “…altering flow regimes to protect endangered species might impose economic costs on some Missouri River users, other users might benefit . . . “. This is an ambiguous statement and avoids the purpose of the document to analyze the economic impacts of designating critical habitat. The statement does, however, provide insight into the full economic impacts of a designation; it indicates that persons and communities downstream, not in a county with critical habitat, will be economically impacted. Another failure of the USFWS that is amplified on this topic is the fact that the state of Nebraska shares 120 miles (paragraph 118) of the Missouri River and this document fails to even identify any of the impacts within the document. In fact, except for page 3-16, the document failed to even to acknowledge that the Missouri River is anywhere near Nebraska.
Within the narrative of the EA, Alternative C includes all areas described as essential in the 1998 Recovery Plan. Alternative D is identified as all areas essential in the 1994 Draft Revised Recovery Plan. However, in Table 1., Summary of Actions by Alternative, the alternatives are reversed.
Is it a typo? Or an intentional attempt to confuse the reader?
What happened to the Missouri River within Table 1 – within the narrative the reach from Ponca State Park, Nebraska to Plattsmouth, Nebraska. Is this area proposed for designation or not?
The Draft Economic Analysis identifies throughout the possibility of additional consultations, reinitiated consultations, delays in projects, and significant economic impacts, but concludes “ . . . the rule will not have a significant economic impact …” and “ . . . In the absence of significant costs associated with the ruling, no environmental justice concerns exist . . . ”.
Again, there is nothing presented to support or refute this assertion. An assertion without certification is not a fact.
I. Population and Listing Issues
Page 4 of the EA documents historical populations of the Piping Plover
-1980s – 2,137 to 2,684 adult plovers in the northern Great Plains/Prairie region
-1991 – 2,032 adult piping plovers in northern Great Plains
-1996 – 1,597 adult piping plovers in northern Great Plains
What is the census for 1999 or 2000?
The FEMA information page (http://www.fema.gov) identifies weather disaster areas in all of the wintering and spring breeding habitats of the piping plover for those years and seasons. Did the 1996 survey take into account the severe weather impacts to bird populations during the winter and spring of the previous years as cause for the decline instead of human activities?
It also states that the 1991 and 1996 surveys were done in the same area - Did the USFWS ever consider the plovers’ “shifting” habitats behavior identified in the analysis caused a shift away from these same areas skewing the survey results? Or that the plover has dispersed into other areas and there could be more plovers?
Delisting criteria (according to the 1988 Recovery Plan)
1300 pairs maintained for 15 years
o Montana - 60 pairs
o North Dakota – 650 pairs
Missouri River – 100 pairs
Missouri Coteau – 550 pairs
o South Dakota – 350 pairs (includes 250 pairs shared with Nebraska on Missouri River)
Missouri River below Gavin’s Point – 250 pairs
Other Missouri River sites – 75 pairs
Other sites – 25 pairs
o Nebraska – 465 pairs (including 250 pairs shared with Missouri)
Platte River – 140 pairs
Niobrara River – 50 pairs
Missouri River – 250 pairs
Loup River system - 25 pairs
o Minnesota – 25 pairs (Lake of the Woods)
Why do the surveys within this Environmental Assessment refer to adult individuals, when the goal of the Recovery Plan refers to “pairs”?
How many pairs are currently within each of these goal areas?
If there are no piping plovers currently on the Missouri River in Nebraska, then why does it have the highest goal for population establishment?
If the Missouri River has such lofty goals, then why is Nebraska habitat along the Missouri River not identified and analyzed in any of the documents or Nebraska maps for critical habitat? Especially since the highest management consideration, as reported by the National Resource Council, would occur on this river?
Is this intentional to confuse the reader thus denying “meaningful participation” or is the USFWS truly unable to fashion a coherent document?
It should be pointed out that the National Wilderness Institute published a far-reaching study (May, 1997) on the ineffectiveness of the Endangered Species Act. The study's authors, Rob Gordon, James Streeter and James Lacy of the National Wilderness Institute (NWI) spent more than a year analyzing thousands of pages of government documents and creating a database with more than 200,000 data points to conduct the study which is the second largest paper ever published by Environment International. Among the study's findings:
Numerous species were incorrectly listed as threatened or endangered (over 90%);
No species has recovered primarily as a result of the ESA;
In only two instances can reclassification of a species from endangered to threatened be attributed to successful management actions and in both of these cases the actions could have been taken without the Act;
Most of the species claimed by USFWS to have achieved 75% of their recovery objectives are not beneficiaries of successful actions taken under the Act;
The government data is too poor to demonstrate a general trend for protected species - either positive or negative;
Federal expenditures on endangered species are made primarily by agencies other than the USFWS and NMFS, the principal implementing agencies;
There is no scientific rationale for the allocation of funds among species.
H. Specifications Appertaining to Document Comment Period
The USFWS has allowed only 30 days for comment (due by January 28, 2002). This is in violation, not only of EO 12866, but also of 50 CFR 424.16(c)(2).
EO 12866 states:
“In addition, each agency should afford the public a meaningful opportunity to comment on any proposed regulation, which in most cases should include a comment period of not less than 60 days.”
The USFWS’s own Federal regulation 50 CFR 424.16(c)(2) states:
“ . . . At least 60 days shall be allowed for public comment following publication in the Federal Register of a rule proposing a listing, delisting, or reclassification of a species, or the designation or revision of critical habitat . . .”.
To issue an ill prepared document with an extremely short and totally unacceptable comment period does not afford the public a meaningful participation.
Compliance for NEPA
Environmental Assessment (EA) –A concise public document, prepared in compliance with NEPA, that briefly discusses the purpose and need for an action, alternatives to such action, and provides sufficient evidence and analysis of impacts to determine whether to prepare an environmental impact statement or finding of no significant impact (40 CFR 1508.9).
Using the definition of an EA, the published EA is neither concise nor provides sufficient evidence and analysis to determine anything.
IV. Conclusion
Having evaluated the Critical Habitat Designation Draft documents, we can only conclude that the USFWS has not achieved the level of analysis expected of the agency by existing regulations. The public and local governments depend on and expect Federal agencies to comply with the very laws and regulation they impose on citizens and communities in Federal project areas involving endangered species. It is not an easy task to evaluate noncompliant burdensome and misleading agency documents for accuracy or compliance with Federal statutes and to comprehend what the actual impacts will be to affected communities. The public and local governments deserve better than this.
To produce a document that falls out of the realm of understanding would almost be understandable if this was the USFWS’s first effort in evaluating Critical Habitat Designation. It could be conceivable that possibly the USFWS is unaware of what is required of designating critical habitat if CHD was a new function of the agency. The reality is that not only is this not the case, the USFWS has a demonstrated history of being taken to court numerous times in various districts for basically the same reasons:
Failure to properly evaluate and define critical habitat;
Interpreting the requirements of the ESA outside of Congressional intent and the orders of the courts. Even a recent Senate report found this to be a recurring problem.
Implementing the USFWS’s own version of ESA restrictions beyond the original intent of Congress, orders of the courts and orders of the Executive Office.
Given this established behavior history of the USFWS, there is little indication to expect the agency will conduct itself in any manner other than one that requires communities and local governments to address the agency’s shortcomings in court. It is doubtful the agency will comply with established regulations on its own as judiciaries and legislators have documented numerous times.
Many questions remain unanswered, much time has been wasted and the results are nonexistent. To properly carry out the required studies will take a considerable amount of funding and more time than the courts have allowed. This issue was forced due to the agency’s stalling over the past 16 years with little to no results. For this issue to be properly resolved will more than likely take another court action.
“ . . . the fact that the FWS says that no real impact flows from the CHD does not make it so. . . “ Catron County Board of Commissioners v. United States Fish & Wildlife Service, 75 f.3d 1429, 1436 (10th Cir. 1996) as quoted in New Mexico Cattle Growers Association v. USFWS 10th Circuit case 248 F.3d 1277.
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