In an article forthcoming in the Journal of Environmental Studies and Sciences, Dr. Dennis Murphy and I examine a proposal by the Fish and Wildlife Service and National Marine Fisheries Service to amend the existing regulations that implement the interagency consultation process set out in Section 7 of the Endangered Species Act by codifying their pre-existing practice of using surrogates to express the amount or extent of incidental take of listed species. We describe the proposed rule, place the use of surrogates for conservation planning in historical context, and describe caselaw respecting the use of surrogates. We go on to contend that the proposed rule leaves the process of surrogate selection and application without essential implementation details and describe five essential steps in surrogate selection and validation.
- Provide an explanation of the reasons why the direct assessment in the form of take of a specified number of individuals of a listed species or a proportion of the population of that species cannot be measured and assessed.
- Apply a structured deductive process to match a prospective surrogate with the listed species, employing available demographic and geographic information, inferences from other species, and experiences from conservation planning efforts elsewhere, which have successfully or unsuccessfully engaged surrogate approaches.
- Present a clear description of similarities and differences between the likely responses of the surrogate and target species to salient environmental phenomena, and identify any uncertainties that may manifest as different responses to environmental stressors.
- Articulate a means by which post-determination implementation and monitoring will be designed, using adaptive management to explore continuously the relationship and ecological relatedness between the surrogate and the listed species, and the responses of both to environmental stressors.
- Provide assurance that reinitiation of consultation will occur if it is found that the surrogate does not adequately (accurately) reflect the salient ecological responses of the listed species at any point that the incidental take statement remains in effect.
A pdf copy of the article is available here (pdf).
Paul Weiland is chair of Nossaman’s Environment & Land Use Group. He focuses his practice on litigation, permitting, and compliance counseling. Paul’s clients include public agencies, publicly regulated utilities, private ...
Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.
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