Texas calls for aid to put science into the En­dan­gered Species Act

The Washington Times Daily - - Front Page - BY SETH MCLAUGH­LIN

A top Texas of­fi­cial says it’s time to im­prove the science that de­ter­mines which an­i­mals get listed un­der the fed­eral En­dan­gered Species Act, call­ing on Congress to create a $50 mil­lion fund for in­de­pen­dent re­search that also would fac­tor in the eco­nomic dam­age to com­mu­ni­ties when a species is des­ig­nated for pro­tec­tion.

Texas Comptroller Su­san Combs told The Wash­ing­ton Times that her state has set aside $5 mil­lion to try to fight spu­ri­ous list­ings, and said it’s time for the fed­eral govern­ment to give the states some help.

“The bur­den of proof has shifted and you have to rec­og­nize that — there­fore,

en­hance your tool box, and your tool box has to be science be­cause you are not go­ing to win in the courts,” Mrs. Combs said in a meet­ing last week with edi­tors and re­porters as part of The Times’ “So­lu­tion Mak­ers” in­ter­views.

The En­dan­gered Species Act is draw­ing in­creas­ing scru­tiny from law­mak­ers in Wash­ing­ton and in state cap­i­tals across the coun­try who say the U.S. Fish and Wildlife Ser­vice is over­whelmed by re­quests and law­suits, and of­ten ends up mak­ing decisions that aren’t un­der­pinned by sound sci­en­tific data.

Once a species is listed as fac­ing ex­tinc­tion, then fed­eral of­fi­cials must move to pro­tect its habi­tat, and that of­ten con­flicts with eco­nomic de­vel­op­ment and lo­cal landown­ers — a re­al­ity that elected lead­ers are try­ing to deal with in Texas and other states.

Mrs. Combs vis­ited with mem­bers of the House and Se­nate last week on Capi­tol Hill to pitch her idea for a $50 mil­lion Na­tional Science Fund to con­duct in­de­pen­dent re­search.

“You need a science fund to do the work that [U.S. Fish and Wildlife Ser­vices] can­not do, has not the ca­pac­ity to do,” she said. “I said, ‘It needs to be peer-re­viewed, so it is not bought and paid for by Bob, my un­cle.’ And I got some trac­tion on this. So I am hop­ing they do have a science fund.”

In the four-decade his­tory of the En­dan­gered Species Act, nearly 1,500 species have been listed, but fewer than five dozen have been re­moved from the en­dan­gered list. Ten of those be­came ex­tinct, 18 were er­ro­neously listed and the rest were deemed to have re­cov­ered. Giant po­lit­i­cal and eco­nomic fights have bro­ken out of moves to pro­tect species such as the spot­ted owl in the Pa­cific North­west and the snail darter in the Lit­tle Ten­nessee River.

Fac­ing a grow­ing back­log, the In­te­rior Depart­ment agreed in 2011 to make fi­nal decisions within six years on whether 251 species de­serve pro­tec­tion.

Mrs. Combs and lead­ers in other states ar­gue that the fed­eral govern­ment doesn’t have the ca­pac­ity to de­cide all of those cases, and she said the stan­dards for de­cid­ing what sci­en­tific stan­dards and data to use are ill-de­fined.

In­de­pen­dent re­view

Pa­trick A. Par­enteau, the for­mer di­rec­tor of the Ver­mont Law School’s En­vi­ron­men­tal Law Cen­ter, said there are of­ten prob­lems with the qual­ity of the science used to jus­tify an en­dan­gered list­ing, and said an in­de­pen­dent re­view makes sense.

He said one is­sue is that the science it­self can be con­fus­ing. He pointed to the case of the Pre­ble’s meadow jump­ing mouse, found in Colorado and Wy­oming, where the en­dan­gered list­ing had been chal­lenged. Re­searchers are di­vided about the ba­sic ques­tion of whether the lo­cal mouse found there qual­i­fies as a sep­a­rate “species” that can be pro­tected un­der the fed­eral law.

“You would think you could get a group of sci­en­tists to sit down and say, ‘This is the same mouse,’ but they can’t,” Mr. Par­enteau said.

Ear­lier this year, the Fish and Wildlife Ser­vice said it would keep the mouse on the en­dan­gered list, say­ing “the best avail­able sci­en­tific and com­mer­cial in­for­ma­tion” didn’t jus­tify re­mov­ing it. The ser­vice also said that ge­netic stud­ies “con­firm that the Pre­ble’s is a valid sub­species,” which means it’s able to be listed.

Mr. Par­enteau said cli­mate change is al­ter­ing habi­tats, but the stan­dards for de­ter­min­ing pro­tec­tion re­main blunt.

“I think the real prob­lem is that we have a lot of species that are dy­ing,” he said. “A lot of peo­ple have said, ‘We are not go­ing to be able to save these species, is there a way to make more in­formed decisions on which ones are more im­por­tant than other?’ But no one has stepped up to the plate to an­swer that ques­tion.”

Pro­fes­sor Daniel Rohlf, of the Lewis and Clark Law School’s en­vi­ron­men­tal and nat­u­ral re­sources pro­gram, said hav­ing states like Texas pro­mote more science is wel­come. But he de­fended the Fish and Wildlife Ser­vice’s de­ci­sion-mak­ing.

“In my view, the species that are listed as en­dan­gered, in gen­eral those de­ter­mi­na­tions are typ­i­cally well sup­ported by science,” he said.

He said the fact that Fish and Wildlife Ser­vice man­date to use the best science avail­able es­sen­tially forces the agency to con­sider what­ever cred­i­ble re­search is out there.

“If Fish and Wildlife were to wait un­til there was com­plete cer­tainty with re­spect to any de­ci­sion that the agency makes, the agency would never make a de­ci­sion,” he said. “Some peo­ple might sup­port that way to go. That is not re­ally con­sis­tent with the statute. The statute is pretty clear that Congress in­tended for Fish and Wildlife to take a pre­cau­tion­ary ap­proach to­ward pro­tect­ing the species.”

Mrs. Combs isn’t new to the is­sue of en­dan­gered species. In 2006, as com­mis­sioner of the Texas Agri­cul­ture Depart­ment, she worked with pri­vate landown­ers and con­ser­va­tive groups to es­tab­lish a Re­cov­ery Credit Sys­tem as a re­sponse to con­cerns over mil­i­tary ex­er­cises en­croach­ing on the habi­tat of two birds: the golden-cheeked war­bler and the black vireo.

The pro­gram pro­vided pri­vate landown­ers with fi­nan­cial in­cen­tives to pro­tect the habi­tat for the birds on their prop­erty, off­set­ting losses else­where in the state.

“They also put some boots on the ground,” she said. “They dis­cov­ered that in­stead of there be­ing 20,000, 30,000, 40,000 birds, there is 200,000. Had they done the science at the front end, they never would have listed the gold­encheeked war­bler or the black-capped vireo. The science was so deeply flawed.”


Texas Comptroller Su­san Combs vis­ited Capi­tol Hill to pitch her idea for in­de­pen­dent species re­search.

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