The Future of Endangered Species and ENSCA in New Jersey
NJAS Opinion: December, 2001
Introduction
Significant ink has been spilled in these
pages by this author on the subject of endangered species in New
Jersey and the New Jersey Endangered and Nongame Species Act
(hereafter, ENSCA or the Act). Recent court cases and
difficulties in implementing the act make a review of it timely,
with an eye on the future of the Act and of endangered species
in New Jersey. This opinion reviews some of the Act's successes
and failures, the fixes needed in listing, delisting, protocols
and recovery of species, and amendments to the Act or the
regulations with suggested improvements.
The state Act or ENSCA is the state
counterpart in New Jersey of the federal Endangered Species Act,
the crown jewel of environmental legislation passed in 1973. The
federal law is a tough law, admitting of no weakening economic
analysis except in the one section dealing with critical
habitat. The New Jersey law, in defining endangered and
threatened species and in its other definitions as well is
similar to, but not identical with, the federal law and lacks
the explicit critical habitat protections of the federal act.
It is useful to recall that the aim of
endangered species law, whether federal or state, is to bring
about the recovery, and not merely the survival of
endangered and threatened species. That understanding greatly
informs the remarks that follow. The goal of the program is not
to support a relict survivorship doomed to extinction in a few
years, but a healthy and growing population. An examination of
past successes and failures is useful for future fixes and
refinements so that the Act works and the species live on.
Successes
Obvious examples of ENSCA successes abound.
Bald Eagle recovery went from one breeding pair in 1973 to 31
pairs currently, with 20 some odd successful nests. Peregrines
went from no pairs to 14, the recovery goal for this federally
listed species from the getgo. Ospreys went from 50 pairs in
1973 to 300 or so now. And Great Blue Heron rookeries in the
state vaulted from only five in 1973 to the current 39! These
species, three of which required intensive hands-on management
by the Endangered Species Program (ENSP), were either de-listed
or down-listed as a result of their recovery.
ENSCA had a very important and timely assist
from the Freshwater Wetlands Protection Act (FWPA) of 1988. What
the FWPA gave to ENSCA was a much needed habitat component.
Freshwater wetlands with endangered or threatened species are by
definition under the FWPA wetlands of exceptional resource
value. As such, they get 150 foot buffers. Since many species
use both the wetlands and the upland buffer or transition areas
(that's why the law was written that way) in their reproductive
period, the endangered and threatened species in exceptional
wetlands have additional protection from the FWPA. Examples
among others are Wood Turtle, Red-shouldered Hawk, Barred Owl
and Great Blue Heron (check the numbers above on GBH as proof).
The Pinelands Comprehensive Management Plan (CMP) also has a
habitat protection for significant populations of threatened or
endangered species, recently weakened by an adverse court
decision involving an "unpopular" species.
Other help for endangered species as a result
of ENSCA has come from private corporations and individuals.
While some profit interests view endangered species as a
nuisance and a "taking" of property (hard to find in
the Constitution!), others have been proud to join in the
protect- and- recover effort. Some corporations and some farmers
with extensive land holdings have adjusted their mowing
practices on lands leased for haying (sometimes at a loss) to
provide habitat for resident threatened grassland birds such as
Bobolink, Grasshopper Sparrow, Upland Sandpiper and Savannah
Sparrow. Without the Act, the motivation for such
public-spirited action would be weaker. The grassland community
of species presents particular problems and conflicts in
conservation since property owners own the plants and the state
the wildlife.
Failures
There have been failures, some systemic to
the Act and others not. At times there has been weak
enforcement, especially where discretion is involved, e.g.,
buffer averaging in wetlands cases. In some cases of wetlands
with endangered species, the discretionary room should be
employed the other way, not to reduce buffers, but to hold the
line. Economic hardship is provided for in the FWPA.
The political unpopularity of the law to some
has been responsible at times for nonchalant enforcement or
compliance. There is an unfortunate repugnance abroad in the
land for snakes, while peregrines and owls have fan clubs. Since
the listing process was not always a purely scientific process
(now much improved on that score), probably there have been
omissions from the list. It's not necessarily that listed
species don't deserve endangered status, but that other more
obscure species deserving listing get ignored or unrecognized.
Visible species like Osprey are easy to count; Henslow's Sparrow
is hard to census and monitor.
The inability of ENSCA to deliver with
certainty the protection of an endangered species in upland
habitat has been perhaps the signal weakness of ENSCA. If a
Cooper's Hawk nests in wetlands, it gets protection for its
habitat by virtue of the exceptional wetlands classification
under the FWPA. If the hawk nests in uplands, ENSCA will save it
from being shot, and Ensca will protect its occupied nest
this year, but maybe not next year if the bull dozer
comes before the hawk returns in the spring. This despite the
fact that the Supreme Court Sweet Home decision on the federal
ESA included habitat modification in the definition of
"harm." Our word in the state statute is
"take." It is an absurdity that we can protect the
habitat of wetland species and not upland species.
Fixes
The remedy for this ambiguity may be an amendment
to the definition of "take" in the New Jersey law that
would specifically include adverse habitat modification. A
modification of habitat that would kill or is apt to kill an
endangered species is a form of take just as final and certain
as shooting the species. A species cannot recover is there is
constant loss of its habitat. The state act should not be less
stringent than the federal. A related issue is whether critical
habitat for the listed endangered species should be designated
at the time of listing. That would provide a clear idea of what
it takes for the species to recover.
Refinements to the listing process are very
much in order. Quantifiable norms for down-listing or de-listing
are helpful. The example of Great Blue Heron going from 5
rookeries in 1973 to 39 currently provides clear evidence that
the species is now recovering on its own. In the case of
de-listing, there should be a monitoring period, to be sure that
recovery is taking place. In the case of Great Blue heron, Cliff
Swallow and Osprey, monitoring clearly showed the species to be
recovering. Defining the recovery goals at the time of listing
is another sound idea; Peregrine reached the recovery goal
defined as the maximum historic population level. De-listing
should be foreclosed if a species requires intensive, hands-on
management for survival (e.g., Least Tern and Black Skimmer).
Other fixes needed are protocols for finding
endangered species and guidelines for satisfactory environmental
impact statements. This is particularly necessary in the
regulatory programs when out-of-state consultants are used.
Certification of consultants by taxa is an idea that should be
explored. Recent history suggests that performance in this area
is uneven. For extremely sensitive areas like the Pine Barrens,
a stable of approved consultants funded by impact fees is
another idea worth throwing into the mix.
Research on Undetermined and Special Concern
species needs to be boosted on the priority list to get an idea
of distribution and habitat requirements of species in these
categories. Some of these may in fact be threatened and
endangered, escaping notice either because of their habits or
because of a lack of expertise in those species. If these
species are stable, on the other hand, we should determine that
and move on to greater priorities.
Obviously all of the above depend on the
super-fix, which is funding. Declining license plate revenues
and tax check-off funds leave the endangered species program in
a bind with trying to maintain ongoing programs. Here the need
is for a state appropriation to buffer the decline, and for
passage soon of the federal CARA legislation, HR 701 and S 1328.
The House bill has 243 cosponsors to date. Title III of this
legislation will provide needed funding (7.7 million) for
conservation of species and endangered species money under
another title. Likewise it would provide 17 million for Land and
Water funds in New Jersey. Both of these funding titles have
long been advocated by NJAS.
The future
Without a firm funding base, recovery of
certain endangered species is doomed. Without changes in sprawl
patterns and local zoning practices, listed upland species are
in serious trouble. Habitat destruction is still the leading
cause of species loss, whether endangered or not. ENSCA will not
deliver protection sufficient for recovery unless some or
all of these fixes are put in play. The outcome of ENSCA legal
cases needs to be made more predictable for the benefit of the
resource. Staff members of the Endangered and Nongame Species
Program (ENSP) in New Jersey have labored diligently on behalf
of our species. But the fate of these species and the law itself
is subject to forces beyond the staff's control. Let's deliver
the help they need to get it done.
Richard Kane
Vice President Conservation and Stewardship
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