Back to the drawing board: a proposal for adopting a listed species reporting system under the Endangered Species Act.

• Author: Moore, W. Parker

We cannot solve the problems that we have created with the same thinking that created them.

--Albert Einstein

PROLOGUE INTRODUCTION I. THE PROPOSED REPORTING SYSTEM: ITS STRUCTURE AND PURPOSE A. The Structure of the Proposed ESA Reporting System 1. The Reporting Requirement 2. The Reporting Mechanism 3. Integrating the Reporting Requirement and the Reporting Mechanism B. Why Establish a Listed Species Reporting System Under the ESA? 1. The Proposed Reporting System Can Help Address Biological Complexity a. TVA v. Hill: The Mother of All ESA Discoveries b. The Dilemma of Biological Complexity 2. A Reporting System Can Bring Success to the ESA II. THE EVOLUTION OF SPECIES CONSERVATION UNDER THE ESA A. The Origin of the Endangered Species Act B. Revamping the Roots: Transformation of the ESA III. THE FRAMEWORK FOR SUCCESS" AN OVERVIEW OF MANDATORY ESA PROVISIONS THAT COULD BENEFIT FROM A REPORTING SYSTEM A. Section 4 and the Benefits of a Reporting System 1. Species Listing Determinations 2. Listing Reclassifications and Delistings a. Potential Benefits to Recovery Determinations b. Benefits to Extinction Determinations. 3. Critical Habitat Designations 4. Section 4 Species Recovery Plans B. Section 7 and the Benefits of a Reporting System 1. Informal Consultation, Biological Assessments, and the Benefits of a Reporting System 2. Formal Consultations, Biological Opinions, and the Benefits of a Reporting System a. Correcting Formal Consultation's Procedural Problems b. Correcting Problems with the Implementation of Formal Consultation C. Section 9 and the Benefits of a Reporting System 1. Prohibited Acts Under Section 9 2. The Benefits of a Reporting System to Section 9's Provisions 3. A Reporting System's Benefits to the Taking Prohibition IV. AUTHORIZATIONS FOR ADOPTING A REPORTING SYSTEM UNDER THE ESA A. Conservation Under the ESA B. Instituting a Reporting System Under the Conservation Mandate in Section 7(a)(1) C. Instituting a Reporting System Under State Cooperative Agreements 1. Partnerships for Cooperation and Conservation Under Section 6 and the Authorization of a Reporting System 2. The Constitution Does Not Bar Institution of a Reporting System at the State Level CONCLUSION PROLOGUE

Certain experiences in life leave us with a lasting impression. For me, one of those experiences occurred during the summer of 2001. At the time, I was employed as a wetlands ecologist in the greater Washington, DC area and, until that day, took great pride in my work. It all began one particularly hot July afternoon while I was delineating a complicated wetland on a large, forested patch of land in Loudoun County, Virginia. As I stumbled my way up a deeply incised swale strewn with bowling-ball-sized chunks of limestone draped in thick blankets of sphagnum moss, the vicious attacks of a deer fly caused me to lose track of my pace count. I plunged my soil probe into the sandy muck between my feet and wrestled with a smudged blue-lined map in hopes of pinpointing my location.

My right hand throbbed from the constant pounding of swinging a cheap machete all day, and my vision had clouded over with a woodsman's concoction of gummy spider webs, overly curious gnats, and my own stale perspiration. Yet, when I glanced toward the ground to pick up my probe, the intermittent agony of working outside in Northern Virginia's summer heat evaporated into the sultry afternoon air. My eyes trained upon five milky-green leaves arranged like bicycle spokes around a short, pulpy stem, and I unleashed a cheerful cry that stunned the local cicada into silence: "Small Whorled Pogonia!"

As my initial excitement subsided, a flurry of thoughts raced through my head. The delicate flower growing at my feet was the same species that I had searched for, and occasionally found, in previous years while conducting threatened and endangered species target surveys across the Mid-Atlantic region. This three-inch tall orchid had resided on the Endangered Species Act's list of threatened and endangered species since 1982.

I knew from field conversations with local botanists and government officials that the small whorled pogonia survived in scattered pockets of Virginia, but was rather scarce in the northern regions where I predominantly worked. In fact, the species had never before been documented in Loudoun County. So, without great expectation, I scanned the forest floor around me for additional specimens of the elusive plant. In amazement, my eyes fixed upon another tiny pogonia located only ten feet away, and then another just south of the second. All told, there were eleven of the scarce flowers peppering the hillside. I had inadvertently discovered a new colony of the threatened species in an area that it was not known to inhabit.

As I reflected over the serendipitous circumstances of the find, I began to recall the stories of coworkers who had experienced similar luck while conducting wetland delineations or other environmental field investigations. They had told me about their own discoveries of protected plants in areas that biologists did not recognize as part of the species' range and about the frustration they experienced in trying to notify the proper authorities of this new information. Over the next few weeks, I too would experience this frustration. Ironically, these feelings of frustration I shared with my colleagues stemmed from the Endangered Species Act, the very statute that was designed to conserve the species we had discovered.

The Endangered Species Act does not require anyone who sees threatened or endangered species to report the sighting. What is more, although the small whorled pogonia is currently classified as a threatened species, it is not rigorously protected because it is a plant. Because the colony that I discovered grew on private property, the landowner was free to remove the flowers at will. Also, like most consulting firms, the company that I worked for maintained a policy of exercising strict confidentiality to protect clients' interests and to shield the company and its employees from legal liability. This policy prohibited me from disclosing or even discussing the discovery with anyone besides my coworkers. But I was surprised to learn that even if I could have reported the sighting without fear of being fired or sued, there was no mechanism or procedure to file such a report with the United States Fish & Wildlife Service (FWS), the federal agency charged with nationwide protection of threatened and endangered species such as the pogonia.

After leaving my job at the end of the summer, I attempted to notify the Fish & Wildlife Service of my discovery on that hot day in July. Without betraying my client's confidentiality, I wanted to pass along the general information that the small whorled pogonia lived in Loudoun County so the Service could update its species range information and possibly account for the plant during future activities in the area. The agency representative with whom I spoke said that she appreciated my concern, but explained that the agency had no process for filing such a report.

Three years later, the small whorled pogonia continues to be classified as a threatened plant under the Endangered Species Act. Statistics compiled since the time of my discovery indicate that the delicate orchid has begun to recover in portions of its range. In Loudoun County, however, its status remains unknown; the Fish & Wildlife Service still does not recognize the pogonia as occurring there.

INTRODUCTION

As the discovery of a small whorled pogonia colony on a rural mountainside in Virginia illustrates, the current understanding of the distribution of rare plant and wildlife species and their habitats is far from perfect. Biological discoveries involving threatened and endangered species, like that of the pogonia, are neither new nor uncommon. (1) In fact, the discovery of an innominate species, the snail darter, became the fountainhead for Endangered Species Act ("ESA" or "the Act") jurisprudence as it currently stands. (2)

Given the overwhelming complexity of biological diversity, it is little wonder that such discoveries--both of new, previously unknown species and of new populations of previously identified species--occur on a relatively frequent basis. (3) The effects of this complexity on the scientific community's understanding of the natural world are compounded when rare and at-risk species are thrown into the mix. The scarcity of these plants and animals renders them difficult to document and even harder to study in any sort of comprehensive detail. (4) As a result, it is hardly surprising that new information concerning threatened and endangered species continually emerges. (5) Nor is it surprising that this type of new information can alter the scientific understanding of this nation's living resources.

What is surprising is that the United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively "the Services")--the two federal entities charged with implementing the Endangered Species Act to ensure conservation of listed species (6)--fail to provide any reliable mechanism to account for new listed species-related information as it emerges. (7) Consequently, valuable statistical and biological information about threatened and endangered species often goes unreported, unconsidered, and unused. That FWS and NMFS allow this otherwise-difficult-to-collect information to slip by unaccounted for is extraordinary in light of its potential utility for implementing the ESA. At a minimum, the Services could apply this information to supplement their collective understanding of a listed species' habitat, range, and population abundance. (8) Availing themselves of this data would enable them to protect previously unknown species populations that occupy previously unrecognized habitat domains. Conversely, by needlessly squandering this data, the Services may...