The Endangered Species Act

Tennessee is home to approximately 180 mussel species, 90 species of crayfish, almost 200 species of snails, and 320 freshwater fish (Meyer, 2016). Around 2,880 plant species have been documented in Tennessee according to the Tennessee Flora Committee (2015). When it comes to development, on both a state and federal level there are procedures in place to protect rarer species. How do they work?

Federally-Listed species

The United States Fish and Wildlife Service (USFWS or Service) protects critically imperiled species from extinction by regulating "take" (harm) to listed species and habitat through regulations set forth in the Endangered Species Act (ESA) (read the act in its entirety). Under Section 7 of the ESA, Federal agencies ensure the actions they take do not jeopardize the existence of any listed species.

The USFWS is the primary agency charged with implementing the ESA for listed species under two major processes, the petition process and the candidate assessment process. Non-federal organizations and individuals may petition to list a species. Through this process, a formal request to list a species is brought to the Service, who must make a finding within 90 days of receipt. During the candidate assessment process, Service biologists assess the status of species that may be declining to determine whether a species meets the definition. Critical habitat designation is required as part of the listing process. In the southeast region alone, 343 species were in need of listing determinations as of 2015 (Boyd and Ephanchin-Niell).

Once a species is listed, it is protected by the ESA. The Service attempts to compile locality data from a variety of sources including University research, data from the private sector, and surveys conducted by state and federal agencies, including staff biologists. This data may then be queried to give approximate locations of listed species or critical habitat (collectively known as trust resources), typically as an IPaC Resource List (to learn more, visit the IPaC Online System).

State-Listed Species

Under Section 9 of the ESA, state agencies assume the role for tracking and managing state-listed species. In Tennessee, the Tennessee Department of Environment and Conservation (TDEC) and the Tennessee Wildlife Resources Agency (TWRA) maintain locality data of our listed species. 

The Natural Heritage Program is housed within TDEC's Nashville office. They currently track over 1100 rare and endangered plant and animal species as well as hundreds of conservation sites across the state (TDEC, 2018). This information is collected through ongoing field investigations and from other scientists, as well as from scientific literature. Natural Heritage data is not only important in identifying areas of ecological significance for conservation and restoration activities, but is also a valuable tool in the environmental review process.

The TWRA maintains jurisdiction over state-listed animals under the ESA. TWRA ensures that a development activity will not harm any known populations of aquatic or non-aquatic state-listed animals. The agency may suggest additional surveys depending on the location of a state-listed animal within a certain range of the development activity. The TWRA also shares authority with the USFWS. When a project requires the clearing of trees, TWRA will request that the project proponent consults with the USFWS regarding impacts to Indiana and Northern long-eared bats.

How Does it Work?

 Federally listed small whorled pogonia. Photo credit: A. L. Gibson.

Federally listed small whorled pogonia. Photo credit: A. L. Gibson.

 Relocation of mussel species. Photo Credit: Gary Peeples (USFWS).

Relocation of mussel species. Photo Credit: Gary Peeples (USFWS).

Prior to the design and development of a site, it is important for a developer to hire an environmental consultant to walk a property to locate any streams and wetlands, as well as the listed species and critical habitat within them. Common impacts to these resources during development include road crossings, minor alterations to wetlands, and utility line crossings. It is therefore important to locate these features during the growing season, when species are observable.

However, construction timelines do not always permit a field survey during the growing season. For this reason and prior to any development, consultation with various permitting agencies, including TDEC, TWRA, and the USFWS (through the IPaC system) is important. Obtaining a list of state- and federally-listed species that have been observed within five miles of the property allows environmental consultants to ensure the continued survival of those trust resources. 

Agency consultation not only protects listed species, it protects the developer from permitting delays. It is up to the environmental consultant to complete field surveys and relay information to both the agencies and the project proponent. In the case that a listed species is located within the proposed disturbance area, agency personnel are always eager to assist with relocation efforts or additional surveys that accommodate construction timelines. It is therefore very important to survey a property for environmental resources as early as possible.

Is the ESA Working?

 The recovery of the gray wolf is one of the nation's greatest success stories. Though it is still listed in some states, its populations elsewhere are stable.

The recovery of the gray wolf is one of the nation's greatest success stories. Though it is still listed in some states, its populations elsewhere are stable.

 Federally endangered Indiana bat populations still struggle despite their listing in 1967. Photo credit: University of Kentucky.

Federally endangered Indiana bat populations still struggle despite their listing in 1967. Photo credit: University of Kentucky.

Studies suggest that the ESA's success rate is around 90 percent over the last 25 years. Definitions of success depend on the type of species and population numbers at the time of listing. Several bird species that were once listed as a result of wetland destruction and hunting have rebounded three-fold over just a few decades. Some estimates also suggest that 85 percent of bird populations have been stabilized or increased as a result of ESA listing (CBD, 2006). 

However, while most environmental advocates are thankful for the ESA and its high standards, critics of the legislation suggest otherwise. Only 1 percent of species (20 or 2,000) have recovered sufficiently to qualify for delisting (Scientific American, 2018), which includes more charismatic groups like bald eagles, gray wolves, and grizzly bears. Additionally, policymakers have managed to undermine the ESA with 59 legislative measures, including species protection removal or nullified biological opinions. The Act is chronically underfunded, unsubstantiated claims about project delays are common among developers, and states lack the funding and capacity to engage in ESA activities as would be necessary to protect species (Lyons, 2017). 

How You Can Help

The development of environmentally sensitive sites can be difficult. In our experience, it is best to work both with developers as well as environmental groups, such as watershed associations. Project managers who are able to incorporate this collective consultation approach to solve development projects will find that the solutions are more sustainable long-term. They will also experience far fewer permitting delays and ultimately help create a greener development culture within the community.

Because these impacts are large and permanent, biologists are needed in the field to help locate sensitive resources and create unique solutions for developers. Whether you are a trained biologist or a landowner with no previous survey experience, locating listed species on your property is as simple as taking a photo. Listed species may ultimately be relocated to an area where they may be conserved, but we must first identify them. If you are interested in learning more about surveying your property, or in created a system for your company to ensure project compliance, contact us.

Environmental Impact

References

Boyd, J. and R. E-Neill. Best Available Science and Imperiled Species Conservation: Challenges, Opportunities, and Partnerships. USFWS Region 4 Workshop Summary: A Business, Government, and NGO Dialogue. Washington, DC. Accessed April 2018. Available online at: http://www.rff.org/files/document/file/RFF-DP-15-38.pdf.

Center for Biological Diversity. 2006. Measuring the Success of the Endangered Species Act: Recovery Trends in the Northeastern United States. Accessed 2018. Available online at: https://www.biologicaldiversity.org/publications/papers/Measuring-the-Success-of-the-ESA.pdf.

Lyons, J. 2017. Under Threat: The Endangered Species Act and the Plants and Wildlife It Protects. Accessed April 2018. Available online at: https://www.americanprogress.org/issues/green/reports/2017/11/28/443265/under-threat/

Meyer, Holly. 2016. Habitat changes are major threats to state's vast aquatic biodiversity. The Tennessean. Accessed April 2018. Available online at: https://www.tennessean.com/story/news/environment/2016/11/12/habitat-changes-major-threats-states-vast-aquatic-biodiversity/88402042/.

Tennessee Department of Environment and Conservation. 2018. Environmental Review. Accessed April 2018. Available online at: https://www.tn.gov/environment/program-areas/na-natural-areas/na-environmental-review.html.

Tennessee Flora Committee. Guide to the Vascular Plants of Tennessee. University of Tennessee Press: Knoxville. 2015. Print.

Scientific American. 2018. Is the Endangered Species Act a Success or Failure? Accessed April 2018. Available online at: https://www.scientificamerican.com/article/endangered-species-act-success-failure/#.