Endangered listing for Delta smelt warranted but precluded

Finally completing work on a petition submitted by the Center for Biological Diversity in 2006, the US Fish and Wildlife Service has determined that reclassifying the Delta smelt from threatened to endangered is “warranted but precluded.” That means the population decline is dramatic enough to justify the conclusion that the smelt is in fact endangered, but FWS has too much else on its plate right now to do the work of reclassifying it.

There is little doubt that the smelt currently falls within the Endangered Species Act’s definition of “endangered” (“in danger of extinction throughout all or a significant portion of its range”). The smelt population is notoriously difficult to monitor, but annual surveys by the California Department of Fish and Game show dramatic declines since about 2002. According to FWS, the delta smelt index “is now estimated at the lowest level ever measured-roughly one and a half percent of the 1980 index level.” California’s Fish and Game Commission reclassified the delta smelt as endangered last year.

But FWS is also probably right to put reclassification of the delta smelt behind other actions. It makes essentially no regulatory difference whether the fish is classified as endangered or threatened. In either case, it is protected against “take” by the ESA, and consultation on federal actions under section 7 must consider the latest scientific information, including those record-low population estimates. Under the circumstances, it makes sense to prioritize regulatory work on other species that don’t yet have any protection.

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Reader Comments

12 Replies to “Endangered listing for Delta smelt warranted but precluded”

  1. Dear Holly,
    One of the reasons that the FWS is reluctant to reclassify the delta smelt is because it has become increasingly obvious to many ordinary citizens that extensive, unconstrained, and politically motivated specie regulations has caused significant economic harm and destroyed many jobs in California.

  2. bqrq,
    The assumptions underlying your comment are seriously mistaken. First, the protection of listed species like the Delta smelt is hardly “unconstrained.” In fact, water exports from the Delta have continued to increase since the smelt’s listing. Second, recent conservation-based limitations on exports have not been a major factor in California’s economic woes. A careful analysis by Jeff Michaels at the University of the Pacific’s Business Forecasting Center concludes that export restrictions due to the ESA caused a loss of about 2000 jobs in 2009, roughly the same number of jobs lost as a result of the salmon fishery closure which may have been partly due to failure to adequately protect the Delta. Job losses due to the collapse of the construction industry have been far higher.

  3. To say nothing of the 325,000 California aerospace jobs lost in ’91 when Dick Cheney pulled that plug.

    But I think bq-rq has a point there–the reluctance to list is probably political. Especially given what the ordinary citizen knows–or more accurately doesn’t know–about California geography, the natural hydrology, the history of water development in the San Joaquin, or, as you point out, the very significant increase in Delta pumping that occurred in the last decade.

    Water for rice fields in a drought year, water for cotton, water for alfalfa. Alfalfa! Not that long ago more developed water went to alfalfa alone than to all the state’s households combined. These days, ordinary citizens don’t seem all that concerned by the fact their tax dollars have subsidized Western irrigators for decades. What the heck,often our dollars subsidize the crop directly, too.

  4. Despite the ESA’s directive that listing decisions must be based solely on the scientific evidence, there is no question that politics often plays an important role. But I don’t think this is one of those times. There is nothing to be gained politically by leaving the smelt in the threatened category rather than reclassifying it as endangered because there is essentially no regulatory difference between the two. No water is going to be freed up by this decision, and FWS will have to propose reclassification as soon as it gets through the higher priority measures. In this case, I think FWS has honestly described the basis for the decision — resources are limited, and they can be used more effectively elsewhere.

  5. What resources are involved in changing the listing? It seems like they’ve already done the analysis to find that reclassification is warranted – what more would FWS need to do?

  6. Holly,

    It seems like upgrading the listing would have brought significant political heat, even if it made no difference in actual protection. But I accept your take, you definitely know more about this.

    What about the sage grouse decision? Politics, science or agency resource priorities?

  7. FWS has done a status review, which is essentially a preliminary analysis of the biological status of the species. If the agency decided to go ahead with reclassification, it would have to issue a proposed rule, take public comment, get peer reviews, and hold a public hearing if one is requested. That adds up to a significant expenditure of resources. And unfortunately the listing budget is nowhere near big enough to handle all the listings that are stacked up awaiting action. As an indicator of the inadequacy of the ESA budget, consider that the smelt, because it is under a high magnitude threat, falls in the second-highest priority category for listing (of 12). If FWS can’t get to this one, it’s also not getting to lots of others. That’s why I’m sympathetic to this decision. Of course it would be best if FWS could meet all its listing obligations. But since it can’t come even close to that, better that it take care of species that are currently unlisted before reclassifying.

  8. desertorosso,
    I haven’t followed the sage grouse situation closely enough to give you a confident answer. Certainly sage grouse protection is a hot-button political issue, and delaying that listing leaves the bird essentially unprotected. It’s not about the science. “Warranted but precluded” decisions are never scientific judgments; they acknowledge that the science supports listing but claim that the resources aren’t there to do it. In that sense, a warranted but precluded decision is at least more honest than the Julie MacDonald-driven “not warranted” decisions that were all the rage in the last administration.
    Center for Biological Diversity thinks the sage grouse decision is all about politics. It has filed a notice of intent to sue: http://www.biologicaldiversity.org/species/birds/Mono_Basin_area_greater_sage_grouse/pdfs/GrSG_WBP_NOI_march_29_2010.pdf

  9. It is my understanding that thousands of plant and animal species in California are protected at the federal, state, and local levels of government. Practically all the undeveloped land in California is potential habitat for protected species. This has created an enormous and expensive regulatory burden that sharply restricts the construction of new homes and infrastructure, drives up the price of housing, and destroys jobs.

  10. bqrq,
    Your comment seems to assume that a protected species can live anywhere and could just relocate to currently undeveloped land. This is untrue for most if not all species-the available undeveloped land is more likely than not to be the wrong kind of habitat.

  11. bqrq —
    Thousands of protected species? Nowhere near. According to FWS, there are currently 301 federally listed species in California, of which only 123 are animals. (see http://ecos.fws.gov/tess_public/pub/stateOccurrenceIndividual.jsp?state=CA) As of January 2010, an additional 30 animals are listed under the California ESA (see http://www.dfg.ca.gov/biogeodata/cnddb/pdfs/TEAnimals.pdf), so about 153 altogether. Its only the listed animals that have significant regulatory consequences. Listed plants which occur on private land get little protection under either state or federal law.

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About Holly

Holly Doremus

Holly Doremus is the James H. House and Hiram H. Hurd Professor of Environmental Regulation at UC Berkeley. Doremus brings a strong background in life sciences and a comm…

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