ESA Ignores Science And Facts,
Environmental Consultants Say

By Colleen Schreiber

AUSTIN — "Biomythology is running rampant in Austin, Texas."

That was the message environmental consultant Steve Paulson delivered to participants in the recent Endangered Species Act Conference sponsored by CLE International. His topic focused on the use or misuse of science as it relates to the federal Endangered Species Act.

"I’ve been very critical of the use of science by the Fish and Wildlife Service," he told listeners.

The Act says endangered species should be held to the highest protection. That alone, Paulson told listeners, places a heavy burden on science.

"Lots of times, attorneys tend to want to make this a legal issue. Biology should be decided based on science. Instead, science and the scientific method have been severely abused," he said.

Section 4 of the Endangered Species Act defines reasons for the listing of a species as endangered. Those reasons include: reduction in a population, shrinking range, overutilization, predation, etc. Listing can be based on any one of these issues, Paulson noted.

"Where do you draw the line, though? For example, there is a reduction in all neotropical migratory birds, so which ones do you decide to list and how do you go about making that decision?" he asked.

When the five karst invertebrates (insects living in a particular series of caves and fissures) in Travis County were listed, it was originally said that they could only be found in seven caves in Travis County. Later scientists found that they were actually found in about 25 percent of the 500-some caves in Travis County, and now they’re known to be found in over 100 caves.

"Does that still mean that they’re endangered?" Paulson queried. "There’s also a signed affidavit that says there were only seven or nine Barton Springs salamanders left when it was listed. Now the city is proposing to take up to 200 salamanders a year through their pool cleaning activities."

In addition, when the golden-cheeked warbler was listed, scientists said the birds needed a patch size of at least 125 acres with 75 percent cover to be viable habitat, and that anything less than that was not sufficient. Yet in the listing package, the patch size was reduced to 50 acres and 35 percent canopy cover.

He cited another example which skews the listing criteria. A recovery plan for an endangered warbler in Michigan says that once 1000 nesting pair are recovered, the species can be delisted. Yet in Texas, the recovery plan for the Golden-cheeked warbler requires something like 15,000 nesting pairs before it can be taken off the list.

"What’s the difference?" Paulson asked listeners. "I’ve read both of those recovery plans and they’re both very well written, but they both come to different conclusions about the viability of the species."

The Act allows for "incidental" take using a Section 10(a) permit. The permit includes a list of activities required of the permittee. One is writing a habitat conservation plan and another is "mitigation" for species to be "taken."

"We have people buying habitat for the warbler, but we don’t know if it works. We have ashe juniper taking over the hill country, and in 50 years western Travis County will be a monoculture of juniper trees if we don’t spend any money in operation and maintenance to eliminate juniper trees. Will that be good for the birds?"

Paulson told listeners that one of the ESA reauthorization bills, the Miller bill, puts more and more burden on landowners to pay for the perpetuation or recovery of a species.

"It’s not the responsibility of the last person down the line to pay for it," Paulson said. "It’s our responsibility to pay for it. So I would still recommend going with species by species funding until we get the appropriate funding and get the science in order."

He noted that the other part about the biology that needs fixing, in his opinion, is that there is totally inequitable access to the biological information process in terms of data information given to the respective parties.

"Landowners can’t get any information about the species from the F&WS, and yet time and time again we’ve heard that the environmentalists already have the information."

As an example, he told listeners about attempts to get DNA information on the Barton Springs salamander.

"For many years it was considered the Texas salamander, and then in 1979 a scientist declared it to be the Barton Springs salamander. The F&WS immediately put it on the "to-list" list without any separate analysis to determine if it was in fact a different species," he noted. "Then, just before it was listed, a couple of scientists provided information about the DNA which proved that it was a separate species. We asked for that DNA analysis, but they wouldn’t release that information. There is inequity about releasing information," Paulson stressed.

Lee Sherrod, consulting biologist with Horizon Environmental Services, also in Austin, backed up some of his fellow consultants’ comments about how science is used in the endangered species saga.

Sherrod’s presentation focused on how to get a project underway when confronted by the Endangered Species Act. He focused specifically on the Section 10(a) permitting process as it applies to private individuals and any non-federal entity.

"There have been several endangered species that have been placed on the list that have caused what I would call ‘havoc’ in the Austin area," Sherrod told listeners.

The environmental consultant first outlined the nuts and bolts of the permitting process, including a lengthy list of forms, plans, agreements and guarantees — all on the part of the permittee. The government makes no guarantees, or none that will hold up.

Permitting, Sherrod said, "can take years to accomplish and may require lengthy and costly environmental studies to document the level of take of listed species. There are no time lines for processing these permits. In essence, they get processed when F&WS gets around to it."

He also provided a condensed case history of the first 10(a) permit processed in Texas, or in the entire F&WS Albuquerque region, for that matter. At the time, it was one of fewer than two dozen permits that had been issued nationwide.

The story took place in Austin and actually begin in the early 1980s. Simon Property Group, a nationwide development company, purchased a 116-acre site on the northwest side of Austin near Cedar Park in anticipation of development expanding out that way at a major intersection — highways 620 and 183. Their goal was to build one of the largest retail shopping malls in the Southwestern U.S.

The Austin area was then at the apex of a growth boom and the vicinity of the mall site was rapidly urbanizing, in effect blending the City of Austin with the cities of Cedar Park and Round Rock to the north into a metroplex, Sherrod said.

SPG proceeded with site design and local development approval through the City of Austin, which in itself was an arduous and lengthy process requiring several years for a major project such as the mall. The site was located within a geologic formation associated with recharge of an environmentally sensitive aquifer. To develop in this geologic formation, local development codes required detailed geologic assessment to determine the presence of significant aquifer recharge features (caves, sinks, fissures, etc., termed "karst features"). Detailed geologic studies of the site were conducted, and though numerous karst features were documented on the site including several caves and large sinks, it was concluded that the on-site karst features were not significant from an aquifer recharge standpoint.

This assessment, Sherrod said, in part cleared the way for local development approvals. By late 1989, site design was complete and local approvals were imminent. Construction of the mall was anticipated to begin in early 1990.

Then things changed. At the time the developers bought the site, the cave invertebrates, the speaker noted, were not listed as endangered species. The usual development/environmental battle, however, was going strong in the Austin area during this time.

In the fracas, two species of birds and five species of cave-dwelling invertebrate organisms were listed by F&WS as endangered species. When listed in 1988, the cave invertebrates were thought to be restricted to just a few caves located in a relatively small geographic area on the west side of Austin and a few isolated outliers in the country to the north. These species were not then known to occur in the immediate vicinity of the mall site.

By 1990 the company had pretty well completed all its local approval, they had all their funding set up, and they were getting ready to start construction in just a few months. In the meantime, a couple of spelunkers had been looking in some caves on the mall site and found what they thought was one of the listed species known to live several miles to the south. This particular cave was not on the site itself but immediately adjacent to it. SPG notified F&WS and they then contracted with a researcher to confirm that this was one of the listed species. The researcher confirmed that the invertebrate was in fact the tooth cave ground beetle. While in the cave, he also found another listed karst species.

F&WS then notified the mall developer that there were endangered species on the mall site and that the development of the mall could in essence effect a "take." Additionally, some of these species could possibly be found in other caves on the mall site. At this point, nearly six months had transpired and the mall project was now indefinitely delayed.

SPG conducted extensive discussions with F&WS to evaluate alternatives for moving forward with the proposed mall project. The only options left to pursue were either to cancel the mall project or proceed into a then rarely utilized provision of the Endangered Species Act — a 10(a) permit for incidental take. They decided on the latter option despite great uncertainties as to timeframes or costs, Sherrod said.

To proceed with the permit, the developers had to determine how much of the mall site potentially contained subsurface habitat for the species. Thus, after still more months of extensive studies, it was determined that only the eastern half of the mall site, about 62 acres, would be potential habitat for the listed species.

The company plowed on through the permit process and two years later they finally came out on the other side. F&WS came up with mitigation requirements, which ended up costing the developers four acres of "mitigation" habitat for each acre utilized, Sherrod told the group.

At that point SPG initiated the process of locating suitable endangered cave invertebrate habitat that could be purchased for preserves. The geologic formation containing caves covered many thousands of acres, and it was initially thought that finding the required amount of acreage (234 acres) with documented occurrences of both the Tooth Cave ground beetle and Bone Cave harvestman would not be a formidable task. However, as it turned out, the Lakeline area and a narrow zone stretching a few miles to the south were the only areas in which the two species’ ranges overlapped. Due to exploding development, this land was some of the most expensive real estate in the Austin area.

It was determined that separate preserves would have to be obtained for each species. The search continued. The landowners of all previously documented caves containing one or the other of these two species were contacted to determine availability of the tracts for sale.

About 45 landowners were contacted, but none resulted in a potential purchase. Either they were not willing to sell because they wanted to maintain their own potential mitigation; their asking price was economically infeasible for the Lakeline project; the parcels were too big and the owner would not subdivide; or the parcel was too small to be considered a viable cave preserve tract. The months were still passing and as yet resolution to the permit was not in sight.

After another six or so months, the company finally found suitable mitigation acreage for both species on three separate parcels within the two-county area. The permit process took another step forward.

The permit was finally issued in January 1992, fully two years after the discovery of the species in Lakeline Cave. The mitigation for the 62 acres, Sherrod noted, came with a big price tag, both in dollars and time expired. "Everyone thought this was a monumental achievement. The revelry for the mall people, however, didn’t last long because it had been two years and they essentially had lost their funding," he said. "The economy, both nationally and locally had changed, and their financing package that had originally been secured to build the mall in 1990 had long expired. They had also lost some of their tenants. Thus, SPG essentially had to go back to square one."

The developer went back to the drawing board, essentially redraw the project, and another three years passed before the mall project was back to the point of being ready to break ground. In early 1995, construction finally began and the mall opened for business in October of that year. In essence, the endangered species issues resulted in nearly six years of delay and several million dollars in direct and indirect costs for the mall project.