Protection in jeopardy?

Federal officials say they cannot determine effectiveness of Endangered Species Act

By Mike Lee STAFF WRITER April 3, 2006

When U.S. Fish and Wildlife Service officials asked for $141 million to fund the endangered species program next year, they inserted a startling note: They can't prove how well their past efforts have worked.

"It is difficult to determine whether the program . . . is effective, achieving results and maximizing net benefits," according to a 2005 audit that was quoted in the budget document.

That revelation highlights a grim problem as the Senate starts considering what could be the most substantial rewrite ever of the Endangered Species Act, the nation's benchmark for protecting embattled animals and plants. The House has passed a sweeping revision that is much friendlier to property owners and developers than the current law.

Despite billions of dollars spent on species recovery since 1973, the government can provide little nonpartisan information about the program's failures and successes. About 1,300 species nationwide, including 42 in San Diego County, are covered by the act, which has become a political lightning rod because it has been used to restrict logging, home building, farming and other forms of development.

Fish and Wildlife's most recent report to Congress on the progress of its species recovery efforts, now almost four years old, is hardly encouraging.

It said 30 percent of the protected species were stable and 21 percent were declining. Six percent were improving, even though the act is designed so that, eventually, species will sustain and increase their numbers on their own.

The agency could not describe the status of more than one-third of the species - about 500 - in even the most general terms.

So much uncertainty could complicate legislators' efforts to determine how much they should overhaul the law and the agency's functions.

"You have no idea where you should use your resources if you don't know what the status of the species are (or) if you don't know what you are doing is working," said Rob Rivett, attorney for the Pacific Legal Foundation, which represents landowners in species disputes.

The vagueness also leaves a wide field for interest groups - from environmentalists to property-rights activists - to spin the data. With glossy mailers, news releases and Web sites, the groups tout what suits their political agendas and downplay the rest.

Fish and Wildlife officials and their critics agree that a lack of money and a stream of court orders imposed on the agency are central reasons for the lack of reporting. For instance, the service has been on a lawsuit-powered treadmill of calculating and recalculating the amount of protected habitat that species need.

The service's endangered species program has about 1,100 employees, but key offices, such as the one in Carlsbad, historically have been short-staffed.

"The Fish and Wildlife Service is underfunded. It doesn't have the resources to learn what it needs to learn," said Sean Hecht, executive director of the Environmental Law Center at the University of California Los Angeles.

Minuscule reviews

The law's effectiveness is particularly important in San Diego County, home to one of the largest collections of imperiled species in the nation and roughly 3 million people. From Camp Pendleton to Otay Mesa, large swaths of the county are off-limits to activities that could harm dozens of plants and animals.

The county's number of protected critters could grow this month if the Fish and Wildlife Service adds the flat-tailed horned lizard to the species list. At the same time, a charismatic member of the county's protected species club - the bald eagle - appears to be moving off the list after decades of federal recovery efforts.

But even with the bald eagle, it is not clear how much credit the species act should get for recovery. For example, the ban on the toxic pesticide DDT is widely cited a major factor.

Fish and Wildlife Service officials said their biologists keep up with the newest research on specific species, particularly for high-profile creatures such as the bald eagle and bighorn sheep. They also tap a network of academics, state biologists and other federal biologists.

Despite legal requirements, however, the agency has done little analysis of how its recovery efforts are working. In general, it said the longer a species has been on the list, the more likely it is to be stable or improving.

"To my knowledge, the service has not conducted any extensive 'big picture' study of the effectiveness of the ESA," said Michael Gale, a Fish and Wildlife Service spokesman in Washington, D.C.

A 2005 White House audit gave the species program a grade of "not performing - results not demonstrated." Afterward, Fish and Wildlife officials said they were developing performance measures and a timetable for completing periodic, unbiased evaluations of the program.

In the last decade or so, Fish and Wildlife has finished reviews for just four species nationwide. The species act requires assessments every five years to make sure that the right safeguards are in place.

To do the reviews, the service collects information about each species' population trends, its distribution, its habitat, conservation measures and other important biological factors.

The agency's documents make it clear that such reviews are needed.

Of the 40 species taken off the protection list, nine had gone extinct, according to Fish and Wildlife data.

For the rest, the official reasons for de-listing were split between recovery efforts and errors in the original data. As new information was gathered, it became clear that 16 species no longer needed federal safeguards.

The Fish and Wildlife Service has said it will step up its five-year reports nationwide, partly as a result of settling a lawsuit with the Pacific Legal Foundation.

"When federal regulation is restricting land use, raising home prices and killing jobs, the government owes it to Californians to do the work necessary to determine if those regulations are actually necessary," said foundation attorney Rivett, who brought the suit on behalf of foresters and farmers.

On March 22, the agency announced the start of updates for 56 species in California and Nevada. The agency already had initiated 31 studies in the two states last year. None has been completed.

"It's one of those things that sort of fell by the wayside," said Jim Nickles, a spokesman for the Fish and Wildlife Service in Sacramento.

He acknowledged that up-to-date data is critical for species management. But he said the agency's priorities have largely been set by court orders at the expense of compiling species reports.

"This is really good in a way because its going to force us to go back and look at what needs to be done," Nickles said.

Legislative wrangling

Rep. Richard Pombo, R-Tracy, guided the bill to rewrite the act through the House in September. Major tenets of the legislation include paying property owners whose lands are taken for species, setting firm deadlines for federal agency decisions and doing away with "critical habitat," a designation that can restrict development.

To Pombo, the Endangered Species Act is a failure because so few species have recovered enough to be removed from the list.

"The numbers alone serve as irrefutable evidence that the ESA is broken," a report by Pombo's House Resources Committee said.

Pombo, a rancher and self-described property-rights activist, emphasizes part of the story.

He downplays the fact that only nine species have gone extinct since the act was put in place even though the ballooning population has increasingly burdened the nation's species and lands.

Up to 172 species might have gone extinct between 1973 and 1998 without federal intervention, an independent study published in the Annual Review of Ecology and Systematics concluded.

The national conservation group Defenders of Wildlife says such numbers show the act has an "astonishing success rate" and "has saved many of our national treasures from extinction."

In a March counteroffensive against Pombo, Defenders of Wildlife mailed full-color media kits touting the law's importance for more than 300 protected species in California. In between photos of jaguars and grizzly bears, the media kits barely acknowledge the endless lawsuits, staggering workloads for the agency and incomplete science that haunt the act.

About the same time, the Center for Biological Diversity in Tucson issued an assessment of more than four dozen species in the Northeast that had been federally protected for at least six years. The report's authors said that was the minimum amount of time for meaningful recovery actions.

The assessment found that 65 percent of the studied populations had increased and 28 percent remained stable. On average, it said, federal recovery plans projected that recovery would take 42 years, while species have been listed for an average of 24 years.

A partly completed study by the center shows similarly upbeat results for species in California.

Kieran Suckling, the center's policy director, said he sympathized with the Fish and Wildlife Service's budget constraints, which are partly caused by groups such as his that alter agency priorities through lawsuits.

Still, he said, "Fish and Wildlife should be doing the studies we are doing. . . . That is their job."

Despite incomplete information, a bipartisan group on the Senate's Environment and Public Works Committee is expected to introduce species legislation by mid-April. James Inhofe, R-Okla., runs the committee.

Committee spokesman Bill Holbrook said it is too soon to say whether the bill will be similar to the House rewrite. But he used Pombo-like language when talking about the need for reform.

"Something has got to be done to improve the return on our investment," Holbrook said.

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More on the need to update and modernize the ESA available

online at the House Resources Committee