Using a case study approach to investigate protection of endangered species, University at Buffalo Law School Associate Professor Jessica Owley found significant gaps in how public agencies keep track of endangered species agreements.
Her findings demonstrate key concerns with monitoring and enforcement of endangered species permits.
According to Owley, the federal Endangered Species Act has a mechanism where landowners can legally kill or harm endangered species as long as they do so with permission from the appropriate federal agency. Landowners and project developers can obtain what are known as Incidental Take Permits under Section 10 of the Endangered Species Act. “These Section 10 permits legalize the killing of endangered species by imposing avoidance and mitigation requirements,” explains Owley.
Curious to examine what type of mitigation measures were being exchanged for the detrimental impacts to endangered species, Owley examined several Endangered Species Act permits in California, the state with the most Section 10 permits and a high number of endangered species.
“I started this project because I was interested in seeing whether the federal agencies involved were keeping track of the mitigation measures over time, and because I wanted to know how easy it would be for a member of the public to understand the mitigation requirements,” Owley says.
What she found was more worrisome than she expected. In some cases, the public officials involved did not have copies of the permits themselves, let alone know or understand the details of the mitigation measures.
Owley’s article, “Keeping Track of Conservation,” appears in Ecology Law Quarterly. She is a member of the UB RENEW (Research and Education in eNergy, Environment and Water) Institute, a university-wide, interdisciplinary institute that focuses on complex energy and environmental issues, as well as the social and economic ramifications. RENEW is one of UB’s Communities of Excellence, which enhance UB’s capacity to address the difficult problems and questions of our time through impactful, interdisciplinary research, education and engagement.
The federal agency chiefly in charge of enforcing the Endangered Species Act is the U.S. Fish and Wildlife Service.
“Because the permit process is run by the local Fish and Wildlife Service office, there was a lack of uniformity in the processes for drafting, monitoring and enforcing mitigation requirements,” she says.
This made tracking down the documents and understanding the mitigation requirements tricky, Owley found. It also demonstrated an unevenness in record-keeping and stewardship of mitigation projects.
Owley was particularly interested in where conservation easements are used to meet mitigation requirements. Conservation easements restrict the use of private land for conservation purposes, with individually negotiated terms. Conservation easements can be enforced by either nonprofit organizations known as land trusts or by public agencies.
While the Fish and Wildlife Service often uses conservation easements to meet mitigation requirements, it does not hold the conservation easements and does not usually retain a right of enforcement. In her investigations, Owley learned that the agencies often fail to retain copies of the conservation easements, indicating that the agencies are not monitoring compliance with conservation easements. Moreover, the conservation easements themselves can be tricky to track down through the public recording process.
“All in all, it was a series of chilling discoveries, about the mitigation and just general record-keeping,” Owley says. “How can the agencies be keeping track of mitigation when they don’t have the documents detailing what the mitigation is?
“As many environmental programs at the local, state and federal level involve mitigation measures, this small study indicates the need for a broader investigation into what is being exchanged for the right to degrade the environment.”
Owley suggests that some of these problems arise due to lack of funding and coordination amongst agency offices: “A first step is simply to improve our record-keeping in this area and to revisit agency guidance governing habitat mitigation.”