Threatened and Endangered Species

Passed by Congress in 1973, the Endangered Species Act (ESA) is the nation’s response to human actions that push species over the brink of extinction. Species that are at risk of extinction are listed as either “threatened” or “endangered” based on the size and range of their populations and the risks they face. These ESA-listed species are then entitled to a greater degree of protection from actions taken or funded by the federal government.

In the Northwest states, threatened and endangered species range from small river snails in Idaho to the mighty Southern Resident orca whales that inhabit Puget Sound. The most extensive ESA-listed species are cold-water salmonids: salmon, steelhead, and bull trout. Although the Endangered Species Act is a federal law, the states would like to maintain as much control as possible over regulatory decisions that could affect these species. As a consequence, the states have plans to purportedly “save the salmon.” These plans are, by and large, a waste of the paper they are written on. There are many references to the regulatory programs of the Clean Water Act, programs that no state is willing to use to control pollution and habitat degradation.

Endanger Species Act the Requirement to “Consult” 

Much of this protection comes from a requirement in the ESA that federal agencies formally “consult” with the expert fish and wildlife agencies when they take these actions. The expert agencies are the National Marine Fisheries Service (NMFS), which is responsible for marine and anadromous species, and the U.S. Fish and Wildlife Service (FWS), which is responsible for land-locked species. Together these two agencies are often referred to as “the Services.” When an agency, such as the U.S. Environmental Protection Agency (EPA) takes an action, it is required to consult with one or both of the Services to ensure that that action does not put threatened or endangered species at further risk of extinction. The document produced by the Services in this process is called a “biological opinion” or “BiOp” for short. In addition, all federal agencies are supposed to work for the recovery of these ESA-listed species.

Threatened Species and the Politics of Inaction 

Despite clear requirements, federal action agencies such as the EPA often do not follow through on their stated intentions to initiate and complete consultation under the ESA. For this reason, NWEA has brought lawsuits against EPA to ensure that it begins this process. NWEA has also brought cases against NMFS and FWS to force them to complete BiOps that they have started but let languish due to political concerns about making findings that EPA actions will not protect threatened and endangered species. For example, NWEA sued the Services for failing to complete BiOps for toxics water quality standards in Idaho after XX years of delay. As a result, between them, the two agencies found that EPA’s approval of Idaho toxic standards were not protective for nine pollutants.

Oregon’s toxic standards are also an illustration of the federal agencies’ inability to complete their work. In 2004, Oregon submitted new toxic criteria to protect aquatic species for EPA approval. EPA failed to act and NWEA sued in 2006, putting EPA on a deadline to take action. NWEA then sued the Services in 2010 for their failure to complete the BiOps on the toxic criteria, putting them on a deadline to

complete the documents. In 2012, the Services completed their BiOps, finding that four pollutants pose jeopardy to the continued existence of salmon and steelhead at the levels that EPA proposed to approve. EPA disapproved these toxic criteria, which caused them to revert to even less protective earlier standards, but then failed to replace them in the timeframe allowed by the Clean Water Act. In 2015, NWEA sued once again, forcing EPA to completing the action of replacing unprotective standards under a court order.

Sometimes it’s Just a Lousy Job

In other cases, EPA and the Services simply do a lousy job. NWEA won a court order in 2003 that the BiOp for Oregon’s 1996 temperature standards was inadequate. EPA and the Services produced a new one. NWEA challenged the new BiOp as not evaluating the effects on the species and, in 2012, a federal court ordered a new consultation that was finally completed in 2015. As a result of the indifference of the agencies, nearly two decades elapsed before the Services had completed a thorough review of the impact of the temperature standards.