Endangered and Threatened Species of the Platte River (2005) / Chapter Skim
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3 Law, Science, and Management Decisions
3 Law, Science, and Management Decisions
Pages 73-107
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From page 73... ...
from a legal and policy perspective, examines the practice and application of science in implementing the ESA, and concludes by placing the Platte River conflict in a broader national context. The evolution and codification of national wildlife policy in the United States provide the context for the present issues concerning the four threatened or endangered species in the Platte River Basin.
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From page 74... ...
. LEGAL AND INSTITUTIONAL BACKGROUND Endangered Species Act Management of lands and water in the Platte River Basin is subject to a complex web of local, state, and federal law.
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From page 75... ...
The ESA may be compatible with, but it does not require, the broader protection of ecosystems or biodiversity. Designation of Critical Habitat The focus of this committee's review is the habitat needs of the Platte River endangered and threatened species.
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) , and critical habitat designation therefore does not limit actions in a designated geographic area that do not affect the primary constituent elements (Fed.
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From page 77... ...
. Like listing decisions, critical habitat determinations must be made "on the basis of the best scientific data available." A recent General Accounting Office report concluded that critical habitat designations generally do rest on the best available science, but the available data are often narrowly limited (GAO 2003)
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From page 78... ...
. USFWS also has taken the position that areas can be excluded from critical habitat designation if they do not require special management.
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From page 79... ...
. The agency's current interpretation is that where lands are already managed for conservation of the species, the benefits of critical habitat designation are minimal and therefore easily outweighed by the potential resource costs and delays imposed by the consultation requirement.
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From page 80... ...
. Designation of Critical Habitat for Platte River Species Several areas in the whooping crane's migratory pathway, including the main channel of the Platte River, and its immediately associated riparian habitat between junction of U.S.
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From page 81... ...
) : Historical data show that this area, sometimes called the "Big Bend" area of the Platte River, was a focal point through which the whooping cranes passed before spreading out to their wintering grounds to the south and their breeding grounds to the north.
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From page 82... ...
In Nebraska, the Platte River was designated as critical habitat for the piping plover from Lexington to the confluence with the Missouri River, a distance of 252 mi. The entire Loup River (68 mi)
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From page 83... ...
It would be unusual, however, for critical habitat designation to increase the scope of the consultation requirement. Consultation is required for any action that may adversely affect a listed species.
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From page 84... ...
Finally, by drawing attention to the importance of land or water for a listed species, critical habitat designation could affect the market price or marketability of land that is designated or
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From page 85... ...
Recovery Planning and Implementation ESA Section 4 requires USFWS to produce and implement a recovery plan for each listed species unless the agency finds that a plan will not promote the conservation (i.e., the progress toward recovery) of the species (ESA § 4(f)
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From page 86... ...
The plans for the whooping crane and pallid sturgeon, for example, have been the basis of substantial expenditures and management activities on behalf of the species. Endangered Species Act and Water Development in Platte River Basin In recent years, a number of sharp conflicts have arisen over the implementation of the ESA in the context of operation of federal water projects.
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From page 87... ...
It therefore issued a single biological opinion for all such small diversions, determining that they would not jeopardize the listed species or adversely affect designated critical habitat provided that they were accompanied by conservation actions, including either replacement of the depleted water or payment of a specified amount into a habitat-mitigation fund. In the 2002 biological opinion, USFWS noted that groundwater pumping in the Platte River Basin would further degrade the ecosystem and threaten the survival and recovery of the listed species (USFWS 2002a, p.
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From page 88... ...
. Federal agencies must use the best scientific data available in fulfilling their duty to ensure that their actions do not jeopardize endangered species or destroy critical habitat (ESA Section 7(a)
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From page 89... ...
Water Law in Platte River Basin In the Platte River Basin, the ESA is implemented against a background of state water law because the suitability of the Platte River as habitat for the listed species is largely a function of operation of federal water projects upstream and the removal of water from the river for irrigation. In general, if there is a conflict between federal or state water law and the ESA, the ESA will prevail.
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From page 90... ...
. Therefore, all the federally listed species in the Platte River Basin are also protected by state law.
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From page 91... ...
details a number of instances in which the state agency has denied applications for diversions from the Platte River on the basis of impacts on endangered species or their habitat. Platte River Cooperative Agreement The series of jeopardy opinions on Platte River diversions, in particular the drawn-out relicensing proceedings for Kingsley Dam, drove the basin states and DOI to enter into a cooperative agreement in 1997.
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From page 92... ...
If the program never materializes, USFWS will be forced to return to projectby-project Section 7 consultation, and it will probably impose more onerous conditions as RPAs. SCIENCE AND UNCERTAINTY This report was solicited in large part in response to controversy attending the use of available information by USFWS in its designation of critical habitat for listed species found in the central Platte River and its recommendations for instream flows.
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From page 93... ...
Therefore, scientists necessarily and legitimately rely on other kinds of data to understand such systems. Only very rarely do data derived from controlled experiments clearly resolve issues in species conservation.
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From page 94... ...
Where records on the Platte River basin itself are not adequate, longer records on adjacent basins could be correlated with records on the Platte to develop a defensible assessment of environmental variation and stochastic processes. In addition, a sensitivity analysis could demonstrate the effects of wide ranges of environmental variation on the outcomes of PVAs.
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From page 95... ...
In circumstances of uncertainty, appropriate use of the best available scientific data will not necessarily produce a single, universally agreed on result. Thus, the existence of disagreement does not establish that the best available data have not been used or that they have not been interpreted according to applicable professional standards.
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From page 96... ...
First, scientific information and explanations provide rec ommended behavior patterns for managers who desire to benefit given species in an ecosystem. For the Platte River, the recommendations might be for instream flows and variations in them to cause changes in the river channel to benefit threat ened and endangered species.
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From page 97... ...
Listing decisions, critical habitat designations, and biological opinions are usually informed by data from simple species surveys, counts of individuals at circumscribed locations through time, and observations of resource use, behavior, and reproductive success under varying circumstances. In a few cases, more complex and comprehensive studies that provide additional data on species behavior or biology, such as survival of offspring to maturity and long-distance dispersal, are available.
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From page 98... ...
98 ENDANGERED AND THREATENED SPECIES OF THE PLATTE RIVER BOX 3-2 Criteria for Assessing the Degree of Scientific Support for Decisions The charges to the Committee on Endangered and Threatened Species in the Platte River Basin generally required the committee to assess the degree of scien tific support for decisions reached by Department of the Interior agencies regard ing species and river processes. In determining whether and to what extent deci sions are supported by existing science, the committee considered: · The extent of data available.
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From page 99... ...
For the Platte River species, epistemic uncertainty is pervasive. The contribution of Platte River stopover resources to the fitness of individual whooping cranes can only be surmised through indirect data and subjective model assumptions; assessing the likelihood of regional persistence of Platte River piping plovers and interior least terns requires many assumptions about local structure and dispersal and about interactions among birds across larger landscapes; and information on the pallid sturgeon is virtually nonexistent beyond locations of capture, from which only the most basic inferences regarding habitat requirements and use can be made.
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From page 100... ...
As a result, the Colorado River Compact allocates some 10% more water than is available in a typical water year. Although the natural flow of the Platte River was fully appropriated before 1900, new uses of groundwater and surface water continue to be allowed.
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From page 101... ...
. FIGURE 3-2 Keystone Diversion on the North Platte River, upstream from the central Platte River, represents an example of an effectively irreversible feature of the watershed that has enduring effects on flows.
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From page 102... ...
. A nationwide constituency benefits, in a diffuse way, from the protection of endangered or threatened species and the other environmental values of river systems.
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The Platte River Basin today is experiencing all four types of conflict. Perhaps the most common source of water conflicts is associated with upstream vs downstream uses.
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From page 104... ...
The flows that have been suggested by USFWS in the central Platte are examples of instream flows to protect endangered species, and there has been litigation over attempts by the NGPC to obtain instream-flow rights to support the central Platte's endangered and threatened species. Conflicts are increasingly emerging between surface-water and groundwater use.
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From page 105... ...
If resource changes are not as expected, the new data can support revised decisions. The second general lesson is that the level of uncertainty in the Platte River Basin is at least similar to that in other basins in the western United States.
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From page 106... ...
Critical habitat designation, which was the focus of the call for this study, however, has not been an important driving force in management decisions. Every biological opinion that has identified the need to restrict or modify federal actions in the Platte River Basin has found both that the proposed actions would jeopardize the continued existence of listed species and that they would adversely modify or destroy designated critical habitat.
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From page 107... ...
Furthermore, uncertainty about the Platte River is an element of all management decisions, not just decisions that restrict diversions. Just as there is uncertainty about stream-flow requirements of the listed species in the central Platte, there is uncertainty about the efficacy of the tradeoffs authorized by USFWS in its recent biological opinions authorizing new diversions in return for habitat-restoration efforts or payment of mitigation fees into a habitat acquisition and restoration fund.
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