Sea-Level Rise and the Endangered Species Act

• Author: Dave Owen
• Position: Associate Professor, University of Maine School of Law. I thank Katherine Lybrand, John O'Hara, and Lauren Parker for research assistance, and the staff of the Louisiana Law Review for editorial assistance and for inviting me to participate in this symposium
• Pages: 119-149

Sea-Level Rise and the Endangered Species Act

Dave Owen∗

I. INTRODUCTION

Through no fault of their own, piping plovers have chosen their

habitats poorly. Many piping plovers nest on ocean beaches, and

all piping plovers spend their winters foraging and sheltering on

dry beaches and in the adjacent intertidal zone.1 Consequently,

piping plovers are heavily dependent—for some populations,

entirely dependent—on habitats very close to sea level.2 Because

of widespread coastal development, these habitats have long been

under threat, and the threat has recently taken on an added

dimension. Rising sea levels, caused in part by greenhouse gas

emissions and associated climate change, are beginning to inundate

the piping plover’s present habitats.3 As its habitats disappear, the

piping plover may disappear as well.4

The piping plover is not alone in its plight.5 The Fish and

Wildlife Service and the National Marine Fisheries Service

(“FWS” and “NOAA Fisheries;” collectively “the Services”), the

two federal agencies with primary responsibility for protecting

threatened and endangered species, have not compiled any sort of

Copyright 2012, by DAVE OWEN.

∗ Associate Professor, University of Maine School of Law. I thank

Katherine Lybrand, John O’Hara, and Lauren Parker for research assistance, and

the staff of the Louisiana Law Review for editorial assistance and for inviting

me to participate in this symposium.

1. See U.S. FISH & WILDLIFE SERV., PIP ING PLOVER (CHARADRIUS

MELODUS) 5-YEAR REVIEW: SUMMARY AND EVALUATION 17, 23–30 (2009),

http://www.fws.gov/northeast/endangered/PDF/Piping_Plover_five_year_revie

w_and_summary.pdf (describing the piping plover’s range and habitat needs).

Populations breeding in the upper Midwest rely on beaches and dunes adjacent

to freshwater, but spend their winters along the Gulf Coast. See id. at 13. The

intertidal zone is the area between the high- and low-tide lines.

2. See id. at 29–30.

3. Id. at 50–52.

4. See id. at 52 (“Sea-level rise poses a significant threat to all piping

plover populations during the migration and wintering portion of their life

cycle.”).

5. See Reed F. Noss, Between the Devil and the Deep Blue Sea: Florida’s

Unenviable Position with Respect to Sea Level Rise, 107 CLIMATIC CHANGE 1, 3

(2011) (“[T]he impacts of sea level rise constitute one of the greatest potential

causes of global species extinctions and ecosystem disruption over coming

decades and centuries.”).

120 LOUISIANA LAW REVIEW [Vol. 73

comprehensive list of species imperiled by sea-level rise.6 But if

they did, the list would likely be quite long. Hawaiian monk seals,7

many species of sea turtles,8 Louisiana black bears,9 black

abalones,10 Atlantic sturgeon,11 and any species unique to the

Florida Keys12 would headline an extensive list of species whose

habitats may soon be inundated, infiltrated with saltwater, or

compressed between an encroaching ocean and the hard edges of

human development.13 Most, if not all, of those species were

already under threat, whether because of habitat alteration,

invasive species, pollution, or some combination of factors.14 For

some, the addition of rising seas may represent a tipping point

toward extinction.

This Essay addresses how environmental law is, or is not,

responding to that threat. I focus on the Endangered Species Act

(“ESA”), which serves as the last line of defense for many species

imperiled with extinction. At present, that defense is not

6. With some exceptions, FWS generally holds jurisdiction over terrestrial

and freshwater species, and NMFS generally holds jurisdiction over marine and

diadromous species.

7. Jason D. Bake r et al., Potential Effects of Sea Level Rise on the

Terrestrial Habitats of Endangered and Endemic Megafauna in the

Northwestern Hawaiian Islands, 2 ENDANGERED SPECIES RES. 21 (2006)

(describing threats to Hawaiian monk seals and several other species).

8. Luc y A. Hawkes e t al., Climate Change and Marine Turtles, 7

ENDANGERED SPECIES RES. 137, 138–39 (2009).

9. See Richard F. Keim et al., Ecological Consequences of Changing

Hydrological Conditions in Wetland Forests of Coastal Louisiana, in COASTAL

ENVIRONMENT AND WATER QUALITY 383–96 (Y.J. Xu & V.P. Singh eds., 2006)

(identifying sea-level rise as a threat to Louisiana’s coastal forests and black

bears as dependent upon those forests).

10. Endangered and Threatened Wildlife and Plants; Endangered Status for

Black Abalone, 74 Fed. Reg. 1937, 1939 (Jan. 14, 2009) (identifying sea-level

rise as a “medium threat” to the species).

11. See Endangered and Threatened Wildlife and Plants; Final Listing

Determinations for Two Distinct Population Segments of Atlantic Sturgeon

(Acipenser oxyrinchus oxyrinchus) in the Southeast, 77 Fed. Reg. 5914, 5972

(Feb. 6, 2012).

12. See Joyce Maschinski et al., Sinking Ships: Conservation Options for

Endemic Taxa Threatened by Sea Level Rise, 107 CLIMATIC CHANGE 147, 148–

50 (2011) (discussing threats to Florida Keys species).

13. Because sea-level rise is a global problem, a full list would include

hundreds of species from other countries as well. See, e.g., Christina J.

Greenwood & Ishtiaq Uddin Ahmad, The Tigers of Bangladesh, U.S. FISH &

WILDLIFE SERV., http://www.fws.gov/endangered/news/bulletin-spring2010/the-

tigers-of-bangladesh.html (2010) (noting that sea-level rise threatens the

survival of the world’s largest remaining population of wild tigers).

14. In the course of researching for this Essay, I have no t found any

documentation of a species imperiled exclusively by sea-level rise. Instead, sea-

level rise is always one of several threats.